Santos v. Standard Havens, Inc.

• Decision Date: 13 May 1988
• Citation: 225 N.J.Super. 16,541 A.2d 708
• Parties: Ana SANTOS, as Administratrix ad prosequendum for the Heirs-at-Law of Albino Santos, deceased; Ana Santos, as Administratrix of the Estate of Albino Santos, deceased, and Ana Santos, Individually, Plaintiff-Appellant, v. STANDARD HAVENS, INC., Defendant-Appellant, and Riverdale Quarry Co., Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 16

225 N.J.Super. 16

541 A.2d 708

Ana SANTOS, as Administratrix ad prosequendum for the Heirs-at-Law of Albino Santos, deceased; Ana Santos, as Administratrix of the Estate of Albino Santos, deceased, and Ana Santos, Individually, Plaintiff-Appellant, v. STANDARD HAVENS, INC., Defendant-Appellant and Riverdale Quarry Co., Defendant-Respondent.

Superior Court of New Jersey Appellate Division.

Argued March 22, 1988.

Decided May 13, 1988.

William H. Sheil, Maplewood, for plaintiff-appellant Ana santos.

Joseph G. Murray, Woodbridge, for defendant-appellant Standard Havens, Inc. (Morley, Cramer, Tansey, Haggerty & Fanning, attorneys; Thomas F. Tansey, of counsel; Joseph G. Murray, on the brief).

Patrick J. McAuley, Roseland, for defendant-respondent Riverdale Quarry Co. (Connell, Foley & Geiser, attorneys; Patrick J. McAuley, of counsel; Patrick J. McAuley and Brian T. Murnane, on the brief).

Before Judges MICHELS, SHEBELL and GAYNOR.

The opinion of the court was delivered by

MICHELS, P.J.A.D.

Plaintiff Ana Santos, as Administratrix ad prosequendum for the heirs-at-law of Albino Santos, deceased; Ana Santos, as Administratrix of the Estate of Albino Santos, deceased; and Ana Santos, Individually, and defendant Standard Havens, Inc. (Standard Havens), pursuant to leave granted by this court, appeal from a summary judgment of the Law Division entered in favor of defendant Riverdale Quarry Co. (Riverdale) in this action seeking to recover damages as a result of the wrongful death of her husband, Albino Santos (decedent).

The record submitted on appeal establishes that Riverdale, a wholly-owned subsidiary of Hess Brothers, Inc. (Hess Brothers), is engaged in the business of producing crushed stone and asphalt products at its Riverdale, New Jersey plant. Hess Brothers is an engineering and contracting firm, specializing in highway construction and heavy industrial site work and is a member of the Associated General Contractors of New Jersey. Pursuant to a collective bargaining agreement, Hess Brothers obtained its labor force exclusively through the Laborers' International Union of North America, Heavy and General Laborers' Locals 472 and 172, while Riverdale, also a union shop, obtained its labor force from Local 734 (general laborers, heavy equipment operators) and Local 560 (teamsters union for truck operators).

Notwithstanding the fact that Riverdale and Hess Brothers each drew its labor force from different unions, Hess Brothers' employees regularly performed maintenance and other work for Riverdale at its Riverdale, New Jersey plant. Ronald H. Hess (Hess), Vice-President and Operations Manager of Riverdale, would contact Dick Winters, Hess Brothers' general supervisor, on a regular annual basis and arrange for Hess Brothers' foreman Manuel Silva (Silva) and his crew to work at Riverdale while the plant was closed for winter maintenance. Prior to the winter of 1984, Silva and his crew had been engaged to dismantle various aspects of the Riverdale plant and to construct an office.

According to Hess, instead of transferring the Hess Brothers' employees to Riverdale's payroll, the parties followed an established procedure whereby Hess Brothers would pay Silva and his laborers their union wages and then "backcharge" Riverdale through invoices. The crew was kept on the Hess Brothers' payroll because it was "easier to work the paperwork." Since the men received their paychecks directly from Hess Brothers, Hess Brothers was responsible for withholding all necessary taxes and Union contributions. Invoices were then periodically sent to Riverdale in accordance with work hours recorded on Hess Brothers "Daily Time Reports." An invoice sent by Hess Brothers to Riverdale for the period from February 6 through 10, 1984, indicates that decedent was credited with 40 working hours for this period and that Riverdale was billed accordingly at an hourly rate of $23.38. A breakdown of this hourly rate subsequently provided to Riverdale by Phyllis Howell, Hess Brothers' office manager, indicates an allocation of $11.80 for decedent's hourly wages, $4.48 for insurance and taxes, $3.05 for union welfare and pension contributions, and $4.05 for "overhead".

In 1977, Riverdale purchased a large pollution control structure which captures and controls dust generated in the production of asphalt, commonly referred to as a "baghouse." The structure was purchased from Standard Havens, a manufacturer and distributor of heavy machinery. In or around January 1984, Riverdale decided to replace this structure with another model. Accordingly, arrangements were made for Hess Brothers' foreman Silva and his crew to begin dismantling the baghouse during the first week of February, 1984. The Hess Brothers' crew consisted of laborers Jose Valente and decedent. The daily time sheets and invoices show that Silva, Valente and decedent had also performed a number of other maintenance tasks at Riverdale from January 2 through 27, 1984.

As a matter of routine procedure, Hess delegated supervisory responsibility over the dismantling of the baghouse to Forrest (Bucky) Rodda, the Riverdale asphalt plant manager. Although the proofs show that both Hess and Rodda intermittently checked on the progress of Silva and his crew, as they had done in the past, it was Rodda who actually told Silva what needed to be done and it was Rodda to whom Silva would go if extra manpower was required. While Silva and his crew would generally work by themselves, Rodda would come to their assistance if, for example, a crane operator was needed. Silva, however, did not have the authority to directly order Rodda's men to work for him. At the commencement of the job, Silva was given a set of blueprints to follow in dismantling the baghouse. Although neither Hess nor Rodda gave Silva or his crew any particular instructions as to how to perform the work, it is uncontroverted that Hess and Rodda supervised the dismantling of the baghouse.

On February 6, 1984, apparently the first day of the dismantling process, decedent suffered fatal injuries when his leg was severed by a screw conveyor while he was cleaning out the baghouse dust hopper. Although Rodda was not present when the accident occurred, five of his Riverdale employees were also working on the baghouse along with Silva's crew at the time.

After the accident, dependency benefits were paid by New Jersey Manufacturers Insurance Company, the workers' compensation carrier for Hess Brothers, to decedent's widow, plaintiff, in accordance with the New Jersey Workers' Compensation Act, N.J.S.A. 34:15-1 et seq. Thereafter, plaintiff instituted this action to recover damages for the wrongful death of her husband against Riverdale, for its alleged negligence in failing to provide a safe place to work or to adequately warn decedent of the dangerous conditions that existed, and against Standard Havens, as manufacturer of the allegedly defective machine. Riverdale moved for summary judgment on the ground that decedent was a special employee of Riverdale, and therefore, plaintiff's recovery of benefits from Hess Brothers' compensation carrier barred any subsequent action at common law against Riverdale. Counsel for all parties agreed that the matter presented "a question of law for the court." The trial court held that decedent was a special employee of Riverdale when fatally injured and, as such, plaintiff's common law action against Riverdale was dismissed. We granted plaintiff and Standard Havens leave to appeal and consolidated both appeals.

We have studied the record in light of the arguments presented and are satisfied that the trial court properly granted summary judgment in this matter and that all issues of law raised are clearly without merit. R. 2:11-3(e)(1)(E). We therefore affirm the judgment under review substantially for the reasons expressed by Judge Donald S. Coburn in his oral opinion of October 30, 1987. We are satisfied that the trial court correctly analyzed and decided the matter in light of the principles discussed in Blessing v. T. Shriver and Co., 94 N.J.Super. 426, 228 A.2d 711 (App.Div.1967). See also Caicco v. Toto Bros., Inc., 62 N.J. 305, 309-312, 301 A.2d 143 (1973); Marcus v. Eastern Agricultural Ass'n, Inc., 32 N.J. 460, 161 A.2d 247 (1960), rev'g on dissent 58 N.J.Super. 584, 596, 157 A.2d 3 (App.Div.1959); Smith v. E.T.L. Enterprises, 155 N.J.Super. 343, 349-353, 382 A.2d 939 (App.Div.1978).

We emphasize that whether we apply the "right to control" test or the "relative nature of the work" test, we are convinced that in the totality of the circumstances the trial court properly found that decedent was a special employee of Riverdale at the time of the fatal accident so as to preclude plaintiff from instituting this common law wrongful death action against Riverdale. See Carpenter v. Hooker Chem. & Plastics Corp., 553 S.W.2d 356 (Tenn.Ct.App.1977); A.J. Johnson Paving Co. v. Industrial Com'n, 82 Ill.2d 341, 45 Ill.Dec. 126, 412 N.E.2d 477 (1980); Charlton v. United Steel Erectors, 704 S.W.2d 273 (Mo.Ct.App.1986).

Primarily, it is well-settled that:

Under the control test, the actual exercise of control is not as determinative as the right of control itself. Mahoney v. Nitroform Co., Inc., 20 N.J. 499, 506 (1956). This is so because in many instances the expertise of an employee precludes an employer from giving him any effective direction concerning the method he selects in carrying out his duties. [ Smith, 155 N.J.Super. at 350, 382 A.2d 939].

Accord Marcus, 58 N.J.Super. at 597, 161 A.2d 247. Although in the instant case, Riverdale placed a good deal of discretion in Silva to control the actual performance of the dismantlement, it is clear that Riverdale had the right to exercise a higher degree of authority if the job was not performed to its satisfaction. The situation is thus distinguishable from the facts of Blessing, supra, where the plaintiff, a security guard at the...