DeMarco v. Bouchard
| Decision Date | 19 April 1994 |
| Citation | 643 A.2d 662,274 N.J.Super. 197 |
| Court | New Jersey Superior Court |
| Parties | Nicolena DeMARCO, Plaintiff, v. Stephen V. & Mary Lou BOUCHARD, Defendants. (Civil), Atlantic County |
Gary D. Ginsberg, Mount Laurel, for plaintiff.
Alan J. Cohen, Atlantic City, for defendants (Sills Cummis Zuckerman Radin Tischman Epstein & Gross, attorneys).
In this case the court is asked to decide whether plaintiff, Nicolena DeMarco, a baby-sitter at the residence of defendants, Stephen V. Bouchard and Mary Lou Bouchard, qualifies as an employee of the defendants under the Workmen's Compensation Act, N.J.S.A. 34:15-1-34:15-128 (the Act), or was a casual employee and eligible to maintain a common law action for negligence. 1 The defendants, the employers, are seeking a declaration that plaintiff is subject to the Act, while plaintiff argues she is not subject to the Act and is free to proceed at common law. The only case law in this jurisdiction bearing upon this issue is from the point of view of an employee seeking compensation coverage, rather than disclaiming such coverage. No facts are in dispute and the matter is ripe for summary judgment. Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 74-75, 110 A.2d 24 (1954).
For purposes of this motion the undisputed facts follow.
Plaintiff was injured at the home of defendants on January 16, 1993. She tripped and fell while walking along an uneven brick walkway leading from defendants' home to the street. She had been baby-sitting for defendants' two daughters for approximately two hours at the time the incident happened. Defendants had returned home and paid her $20 for her services. She had never previously been employed as a baby-sitter for defendants and there was no agreement for defendants to employ her in a like capacity in the future.
At the time of the accident defendants had in force a homeowner's policy with Cumberland Mutual Fire Insurance Company. It included coverage for occasional servants. Defendants submitted a workers' compensation claim seeking coverage for the accident. They argue there was an employment relationship between plaintiff and defendants at the time of the accident.
N.J.S.A. 34:15-36 defines "employer" for purposes of workers' compensation as follows:
"Employer" is declared to be synonymous with master, and includes natural persons, partnerships, and corporations; "employee" is synonymous with servant, and includes all natural persons, ... who perform service for an employer for financial consideration, exclusive of casual employments, which shall be defined, if in connection with the employer's business, as employment the occasion for which arises by chance or is purely accidental; or if not in connection with any business of the employer, as employment not regular, periodic or recurring; ...
Since the employment was not in connection with any business of defendants, plaintiff would not be considered an employee if her employment was not regular, periodic or recurring.
In Herritt v. McKenna, 77 N.J.Super. 409, 186 A.2d 694 (App.Div.1962), both the Division of Worker's Compensation and County Court denied recovery to a petitioner in a workmen's compensation action, finding that she was a casual employee, and not entitled to compensation coverage. The petitioner was 70 years old and was injured in a fall at defendants' home. She was working as a baby-sitter for the defendants' three children at the time of the accident. She had worked for defendants on eight isolated occasions in September and October 1960 and was paid a specific hourly rate, with a minimum dollar amount for any single engagement. She was employed on specific dates but the hours varied in both the time of commencement and duration. She was paid at the end of each specific service. She considered baby-sitting her usual occupation. At the time of the accident she was engaged from October 30 through November 4, 1960, to look after the children, cook their meals and perform some housekeeping. Id. at 412, 186 A.2d 694. She was paid $10 per day, for a total of $60 for the six days of engagements.
In determining whether plaintiff was an employee for purposes of worker's compensation, the court defined the term casual employment as follows:
The words, as used in this act, connote that employment is regular when it is steady and permanent for more than a single piece of work; recurring, when the work is to be performed at some future time by the same party, without further engagement; and periodic, when the work is to be performed at stated intervals, without further engagement. Forrester v. Eckerson, 107 N.J.L. 156, 158 (E. & A.1930).
The court reasoned that all of plaintiff's services were for isolated periods, disassociated from each other, without continuity, and created by specific, separate agreements. It was concluded that the circumstances of her employment were not sufficient to qualify her as a "regular" employee. Id. at 415, 186 A.2d 694. In rendering its decision the court relied upon the lack of any agreement to do future work at the time prior engagement ended, and the fact that the work was not performed "at stated intervals without further engagement." Id. at 416, 186 A.2d 694.
In the instant case the facts are even more compelling than those in Herritt upon which to conclude that plaintiff's work was casual, and not regular, periodic or recurring. Plaintiff baby-sat for defendants only once, the night of the accident. This was an isolated employment arrangement as there was no agreement at that time for her to baby-sit in the future. There are no facts from which it can reasonably be inferred that there would be a recurrence of her employment as a baby-sitter.
Defendant argues that the decision in Balmforth v. McMurray, 81 N.J.Super. 109, 194 A.2d 755 (Cty.Ct.1963), supports a conclusion that, even without the incident of continuing employment, plaintiff can be considered an employee under the Act. Defendants' argument is misplaced.
In Balmforth the petitioner in a workers' compensation action was a baby-sitter employed by the respondents and sustained an injury as a result of slipping on a rug in respondents' home. The testimony conflicted as to the type and duration of her employment. The respondents stated the petitioner was employed for a period of eight months to a year before the accident, worked for them approximately every two weeks, and was called when she was needed. The petitioner said she worked during the day and in the evening,...
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