Brooks v. Chemical Leaman Tank Lines, Inc.

• Decision Date: 13 December 1979
• Citation: 71 A.D.2d 405,422 N.Y.S.2d 695
• Parties: James E. BROOKS, Plaintiff-Respondent, and Gertrude Brooks, Plaintiff, v. CHEMICAL LEAMAN TANK LINES, INC., Defendant-Appellant, and Blackstone Corporation, Defendant-Respondent. BLACKSTONE CORPORATION, Third-Party Plaintiff-Respondent, v. FREIGHT CONTAINER SECURITY, INC., Third-Party Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 695

422 N.Y.S.2d 695

71 A.D.2d 405

James E. BROOKS, Plaintiff-Respondent, and Gertrude Brooks, Plaintiff, v. CHEMICAL LEAMAN TANK LINES, INC., Defendant-Appellant, and Blackstone Corporation, Defendant-Respondent.

BLACKSTONE CORPORATION, Third-Party Plaintiff-Respondent, v. FREIGHT CONTAINER SECURITY, INC., Third-Party Defendant-Respondent.

Supreme Court, Appellate Division, First Department.

Dec. 13, 1979.

Remo J. Acito, New York City, of counsel (Elinore B. Klein and Barry C. Weiss, New York City, with him on the briefs; Acito & Klein, P. C., New York City, appellate counsel to J. Robert Morris, New York City, attorney), for defendant-appellant.

Harry First, New York City, of counsel (First & First, New York City, attorneys), for plaintiff-respondent.

Morris Zweibel, Mineola, of counsel (Patrick J. Fogarty, Mineola, with him on the brief; Crowe, McCoy, Agoglia, Fogarty & Zweibel, Mineola, P. C., attorneys), for defendant and third-party plaintiff-respondent.

Stanford Kaplan, Brooklyn, of counsel (Kaplan & Oshman, Brooklyn, appellate counsel to John T. Pellini, attorney), for third-party defendant-respondent.

Before BIRNS, J. P., and FEIN, BLOOM, SILVERMAN and ROSS, JJ.

FEIN, Justice.

Defendant Chemical Leaman Tank Lines, Inc., (Chemical) appeals from a judgment entered in Bronx County, February 6, 1979, in favor of plaintiff against Chemical in the sum of $148,750 after a jury trial. At the close of plaintiff's case the trial justice dismissed Chemical's cross-claim against the co-defendant Blackstone Corp., (Blackstone) without permitting Chemical to offer proof in support of the cross-claim. At the close of the entire case Chemical's cross-claim against the third-party defendant Freight Container Security, Inc. (FCS) was dismissed.

The trial justice refused to submit to the jury the issue of plaintiff's status as an alleged special employee of Chemical for determination as a question of fact, ruling that as a matter of law there was no special employment. The jury returned a verdict in the amount of $425,000, finding plaintiff 65% Responsible and Chemical 35% Responsible.

On December 15, 1976, while plaintiff was making a delivery of caustic soda to Blackstone in Jamestown, New York, plaintiff suffered severe physical injuries when he was sprayed with the caustic soda. Although it is undisputed that plaintiff was hired and paid by FCS, Chemical contends that at the time of the accident plaintiff was a special employee of Chemical and thus barred from recovering against Chemical except by way of Workers' Compensation.

One who is in the general employ of one party may be in the special employ of another despite the fact that the general employer is responsible for the payment of wages, has the power to hire and fire, has an interest in the work performed by the employee, maintains Workers' Compensation for the employee and provides some, if not all, of the employee's equipment. Relevant in resolving the issue is who controls the employee's manner of working and the details of the work (Stone v. Bigley Bros., 309 N.Y. 132, 127 N.E.2d 913; Irwin v. Klein, 271 N.Y. 477, 3 N.E.2d 601; Pichardo v. Kreger Truck Renting Co., Inc., 57 A.D.2d 177, 394 N.Y.S.2d 189). Employees who are employed and paid by one person may nevertheless be employees of another with respect to a particular transaction even where the general employer is interested in the work. A special employee is one who is transferred for a limited time of whatever duration to the service of another. The presumption is that the general employment continues in the absence of clear proof of surrender of control (Stone v. Bigley Bros, supra; Irwin v. Klein, supra ). The question is frequently one of law. However, where the elements of the employment or of the particular work being done bespeak both general and special employment the question is one of fact for the jury (Stone v. Bigley, supra; Irwin v. Klein, supra; Carinha v. Action Crane Corp., 58 A.D.2d 261, 396 N.Y.S.2d 191, lv. to app. den. 59 A.D.2d 603, 399 N.Y.S.2d 600).

It is undisputed that plaintiff was hired by FCS, that FCS paid his salary, provided the W-2 forms and trained him, and that he received Workers' Compensation under the FCS policy for the injuries sustained in the accident. The work procedure was that plaintiff checked with an FCS dispatcher when he needed a load. The dispatcher regularly directed him to Chemical. He had to be approved as a driver by Chemical, and Chemical had the right to reject him. However, only FCS had the right to hire and fire him. The vehicle he drove consisted of a tractor owned by FCS and a trailer owned by Chemical. The safety clothing and equipment and certain fittings were furnished by FCS. FCS paid plaintiff's motel bills and toll charges when he was on the road. Plaintiff and other FCS drivers were dispatched to their particular job assignments by Chemical's dispatcher after the employee cleared with the FCS dispatcher. On the day of the accident, plaintiff received instructions from the Chemical dispatcher as to the source and destination of the load. ...