Gore v. Hepworth
| Decision Date | 30 October 1998 |
| Citation | 316 N.J. Super. 234,720 A.2d 350 |
| Parties | Ronald J. GORE and Bernadette Gore, His Wife, Plaintiffs/Appellants, v. William K. HEPWORTH, FMI Trucking Inc., City of Jersey City, C & F Concrete Construction Co., Inc., Defendants/Respondents, Freedman Truck Center, State of New Jersey, County of Hudson, Conrail, Defendants. William K. HEPWORTH, FMI Trucking Inc., Freedman Truck Center, Third-party Plaintiffs, v. DISTRIBUTION SERVICES LTD., & Hyundai, Inc., Third-party Defendants. |
| Court | New Jersey Superior Court |
Amy R. Winsten, Jersey City, for plaintiff-appellant (Margulies, Wind, Herrington & Knopf, attorneys; Robert E. Margulies, of counsel; Ms. Winsten, on the brief).
John I. Lisowski, Jr., Livingston, for defendant-respondents William K. Hepworth & FMI Trucking, Inc. (Morgan, Melhuish, Monaghan, Arvidson, Abrutyn & Lisowski, attorneys; Mr. Lisowski, Jr., of counsel and on the brief).
Steven R. Maslo, Assistant Corporation Counsel, for defendant-respondent City of Jersey City (Sean M. Connelly, Corporation Counsel; attorney; Mr. Maslo, on the brief).
James P. Lisovicz, Morristown, for defendant-respondent C & F Concrete Construction Company, Inc. (McElroy, Deutsch & Mulvaney, attorneys; Mr. Lisovicz, of counsel and on the brief).
Before Judges WALLACE, NEWMAN and FALL.1
The opinion of the court was delivered by
WALLACE, J.A.D.
Plaintiff Ronald Gore2 appeals from orders granting summary judgment in favor of defendants, William K. Hepworth, FMI Trucking, Inc., City of Jersey City, and C & F Concrete Construction Inc. The Law Division judge ruled that Jersey City and C & F Concrete Construction Co., Inc. (C & F Concrete) were immune from liability under N.J.S.A. 59:4-6 of the Tort Claims Act. A different Law Division judge ruled that as a matter of law, plaintiff was a "special employee" of FMI Trucking, Inc. (Trucking) and therefore, plaintiff was barred from bringing a tort action against his "special employer" as per N.J.S.A. 34:15-8 of the Workers' Compensation Act. On appeal, plaintiff contends it was error (1) to find that plaintiff was a special employee; (2) to find there was no genuine issue of material fact in dispute concerning the clearance height of the underpass; and (3) to refuse to reinstate Jersey City and C & F Concrete as defendants based on a new expert's report. We affirm.
Plaintiff was injured on February 4, 1991, when a tractor trailer owned by Freedman Truck Center, and operated by Hepworth, an employee of Trucking, struck an underpass on Linden Avenue East in Jersey City. Prior to impact, plaintiff questioned Hepworth whether the truck would clear the underpass. Hepworth replied that it would clear but the accident followed. At the time, plaintiff was employed by DSL Atlantic (Atlantic). Plaintiff had previously been an employee of Trucking but as of January 11, 1991, he became an employee of Atlantic. Plaintiff recovered Workers' Compensation benefits from Atlantic.
On December 4, 1992, plaintiff filed his complaint against Hepworth, Trucking, Jersey City, C & F Concrete, and others, including John Doe defendants. Hepworth and Trucking claimed in their amended answer as one of their defenses that plaintiff was barred from bringing suit by the Workers' Compensation Act. Jersey City claimed immunity under the Tort Claims Act as one of its defenses. C & F Concrete, which had repaved the roadway beneath the underpass prior to the accident, also asserted a defense under the Tort Claims Act. Discovery ensued. On December 17, 1993, plaintiffs were ordered to provide liability expert reports within sixty days after receipt of C & F Concrete's answers to interrogatories. Plaintiff subsequently moved to extend the date for service of his liability expert report and on April 15, 1994, the motion judge granted plaintiff until June 1, 1994 to submit his expert's report to defendants.
Thereafter, plaintiff filed the expert liability report of Michael Natoli dated May 25, 1994. In his report, Natoli noted the underclearance was thirteen feet, six inches at the east fascia and thirteen feet, six and three-quarter inches at the west fascia. At the time of his report, the underclearance was marked thirteen feet, four inches. It is undisputed, however, that at the time of plaintiff's accident the underpass was marked thirteen feet, six inches. Natoli also noted that the investigating police officer at the scene of the accident measured the underclearance at thirteen feet, five and one-half inches. It was Natoli's opinion that Jersey City was negligent for improperly signing the roadway with an underclearance of thirteen feet, six inches when the actual clearance was thirteen feet, five and one-half inches. Similarly, Natoli concluded that C & F Concrete was negligent for failing to properly construct a pavement surface to meet the underclearance requirement of thirteen feet, six inches.
On October 25, 1995, Jersey City moved for summary judgment based on plan and design immunity under N.J.S.A. 59:4-6 and C & F Concrete later sought the same relief. In support of its motion, Jersey City submitted the certification of Principal Engineer John Mucha who certified that on or about November 15, 1990 the clearance of the underpass was thirteen feet, six inches. The motion judge found that there was no genuine issue of material fact in dispute regarding the underclearance being thirteen feet, six inches and concluded that Jersey City and C & F Concrete were immune from liability under the plan or design immunity provision of the Tort Claims Act. Consequently, the judge granted summary judgment in favor of Jersey City and C & F Concrete. The judge, however, noted that if plaintiff presented reliable evidence before trial that the underclearance was less than thirteen feet, six inches, he would reconsider his ruling.
On April 10, 1996 plaintiff filed a motion to vacate the summary judgment in favor of Jersey City and C & F Concrete on the ground that new evidence confirmed that the height clearance marking of the underpass after paving did not conform with applicable highway safety standards and that a genuine issue of fact existed regarding the actual clearance of the underpass. In support of this motion, plaintiff submitted a report prepared by Henry Dobbelaar, Jr. dated April 8, 1996. Dobbelaar did not dispute that the underclearance was thirteen feet, six inches, but opined that the underclearance sign was inconsistent with the U.S. Department of Transportation's Manual on Uniform Traffic Control Device for Highways and Streets, which required that the sign must show a minimum clearance of three inches less than the actual clearance to allow for weather and other variations in the roadway. The motion judge found that plaintiff's new submissions was merely a second expert's opinion which did not place the underclearance of thirteen feet, six inches in dispute. The judge denied plaintiff's motion on May 21, 1996.
On April 29, 1997, Hepworth and Trucking moved for summary judgment claiming that plaintiff was barred from recovery pursuant to the Workers' Compensation Act. On May 16, 1997, the motion judge concluded that plaintiff was a special employee of Trucking and therefore, the workers' compensation bar was applicable. The judge granted summary judgment in favor of Hepworth and Trucking. This appeal followed.
Plaintiff contends that the judge erred in finding as a matter of law that plaintiff was a special employee of Trucking.
Initially, we note that an employee's exclusive remedy against the employer for ordinary work injuries is a statutory remedy without regard to fault. In return, the employee forgoes a common law tort remedy. N.J.S.A. 34:15-8; Ramos v. Browning Ferris Indus., 103 N.J. 177, 183, 510 A.2d 1152 (1986). A special employee is subject to that same limitation with regard to the special employer. See Volb v. G.E. Capital Corp., 139 N.J. 110, 116-17, 651 A.2d 1002 (1995)
.
In Volb, supra, our Supreme Court instructed that New Jersey has adopted the three-prong test recommended by Professor Arthur Larson for establishing a special employment relationship:
(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.
cert. denied, 303 U.S. 644, 58 S.Ct. 644, 82 L.Ed. 1106 (1938))).]
Recently, in Kelly v. Geriatric & Med. Serv., 287 N.J.Super. 567, 572, 671 A.2d 631 (App.Div.), aff'd, 147 N.J. 42, 685 A.2d 943 (1996), we noted two additional factors:
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