Antheunisse v. Tiffany & Co., Inc.

• Decision Date: 22 December 1988
• Citation: 229 N.J.Super. 399,551 A.2d 1006
• Parties: Susan ANTHEUNISSE, Plaintiff-Appellant, v. TIFFANY & COMPANY, INC., Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 399

229 N.J.Super. 399

551 A.2d 1006

Susan ANTHEUNISSE, Plaintiff-Appellant, v. TIFFANY & COMPANY, INC., Defendant-Respondent.

Superior Court of New Jersey,

Appellate Division.

Argued Dec. 5, 1988.

Decided Dec. 22, 1988.

Gail S. Boertzel for plaintiff-appellant (Stephen S. Weinstein, Morristown, attorney).

Joseph E. Zavesky, Roseland, for defendant-respondent.

Before Judges PETRELLA and GRUCCIO.

The opinion of the court was delivered by:

GRUCCIO, J.A.D.

Plaintiff Susan Antheunisse appeals from a judgment dismissing her complaint for personal injuries allegedly sustained while working for defendant Tiffany & Company, Inc. The trial judge granted defendant's motion for summary judgment, concluding that defendant was a special employer and that the claim was governed by the Workers' Compensation Act. On appeal plaintiff contends that the motion for summary judgment was improperly granted. We agree with the trial judge's determination and affirm.

The record establishes that the Pat Shea Personnel Agency orally contracted to provide defendant with temporary help during the holiday season. Defendant's personnel department screened all the applicants sent by Pat Shea before selecting and assigning them to its various departments. Once the applicants were hired, Pat Shea's role was restricted to processing their paychecks. Defendant, however, retained the power to supervise, discharge or recall a temporary employee until the end of the employment period. When the holiday season ended, the temporary employees would return to the agency for new assignments.

Plaintiff was hired by defendant on October 29, 1984, to work in its packing department until December 21, 1984. On November 28, 1984, while at work, plaintiff sustained serious injuries to her knee. She claims that a foreign object on defendant's floor caused her to slip and fall. Plaintiff subsequently filed a claim against Pat Shea for workers' compensation benefits and a separate tort claim against defendant for personal injury.

We first observe that summary judgment must be granted if "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2.

The standards of decision governing the grant or denial of a summary judgment emphasize that a party opposing a motion is not to be denied a trial unless the moving party sustains the burden of showing clearly the absence of a genuine issue of material fact. At the same time, the standards are to be applied with discriminating care so as not to defeat a summary judgment if the movant is justly entitled to one. [Judson v. Peoples Bank and Trust Co. of Westfield, 17 N.J. 67, 74, 110 A.2d 24 (1954) ].

The trial court must not decide issues of fact but merely decide whether there are any such issues. Id. at 73, 110 A.2d 24. On appeal, we apply the same standard as the trial court in determining whether the grant or denial was correct.

Our jurisdiction allows an employee, for the purpose of workers' compensation to have two employers, both of whom may be liable in compensation. However, recovery against one bars the employee from maintaining a tort action against the other for the same injury. Blessing v. T. Shriver and Co., 94 N.J.Super. 426, 429-430, 228 A.2d 711 (App.Div.1967). "Whether the common law action is precluded is thus dependent upon a determination that the borrower of an employee is, in fact, a special employer." Id. at 430, 228 A.2d 711. Professor Larson, in his treatise on Workmen's Compensation formulates a three-pronged test in order to establish employment within the terms of the act regarding "Lent Employees and Dual Employment":

When a general employer lends an employee to a special employer, the special employer becomes liable for workmen's compensation only if

(a) the employee has made a contract of hire, express or implied, with the special employer;

(b) the work being done is essentially that of the special employer; and

(c) the special employer has the right to control the details of the work.

When all three of the above conditions are satisfied in relation to both employers, both employers are liable for workmen's compensation.

Employment may also be "dual," in the sense that, while the employee is under contract of hire with two different employers, his activities on behalf of each employer are separate and can be identified with one employer or the other. When this separate identification can clearly be made, the particular employer whose work was being done at the time of injury will be held exclusively liable. [1C Larson, Workmen's Compensation (1986), § 48.00, p. 317].

In Blessing, we considered two other co-equal factors, namely, whether the special employer: (1) pays the lent employee's wages, and (2) has the power to hire, discharge or recall the employee. Blessing, 94 N.J.Super. at 430, 228 A.2d 711.

Plaintiff first contends that there was no contract between herself and defendant. She contends that in order to find the existence of one, there must be a showing of her deliberate and informed consent. Plaintiff relies on the holding in M.J. Daly Co. v. Varney, 695 S.W.2d 400 (Ky.1985), in support of her contentions. We find the facts of Daly distinguishable. There, plaintiff was employed by a labor service company and was on assignment to defendant. The plaintiff in Daly, however, explicitly refused to enter into any employment contract with defendant, preferring to stay on the service company's payroll. The court held that plaintiff had elected to retain his common-law rights to sue defendant in tort rather than under workers' compensation. Ibid.

We find the facts of Whitehead, et al. v. Safway Steel Products, Inc., 304 Md. 67, 497 A.2d 803 (1985), more analogous to the matter before us. Whitehead involved a worker, employed by a temporary services agency, who brought a negligence action against the company to which he was provisionally assigned. Id. 497 A.2d at 805. The court granted the company's motion for judgment n.o.v. and held that the worker was an employee of both the temporary agency and the company and that his exclusive remedy was under workers' compensation law. Ibid. The court ruled that the test of whether an express or implied contract of hire existed is satisfied if the employee consents to the special employment relationship. Id. 497 A.2d at 812. The court...