Should the trial court have transferred this wrongful death and survival action to the Division of Workers' Compensation for a determination of the decedent's employment status where defendant raised the workers' compensation bar as an affirmative defense?
Certification granted: 5/19/14
Argued March 20, 2013. Decided Dec. 26, 2013.
Background: Estate of driver's home health aid filed wrongful death action against driver, stemming from accident in which driver accelerated vehicle while parking, hitting home health aid. Following jury trial, the Superior Court, Law Division, Union County, 2012 WL 3965151, determined home health aid was independent contractor, found in favor of estate, and denied driver's motion for new trial. Driver appealed.
Holdings: The Superior Court, Appellate Division, Accurso, J.A.D., held that:
(1) Division of Workers' Compensation was proper forum for resolution of whether home health aid was driver's employee;
(2) jury instruction as to whether home health aid was employee or independent contractor did not adequately convey the law;
(3) taking judicial notice that person would suffer pain if leg was traumatically amputated while conscious was harmless error; and
(4) damages would be preserved pending remand.
Affirmed in part, reversed in part, and remanded.