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Thursday, December 14, 2017

Exclusivity Rule: Police Officer Hired to Direct Traffic Was a Special Employee-Unpublished Opinion

A municipal police officer who was hired by a contractor to direct traffic at a construction site was determined to be a “special employee” and barred from suing a co-worker of the construction company. The NJ Appellate Court has held, in an unpublished opinion*, the  “Exclusivity Rule” barred the institution of a civil action against a co-worker.

“Plaintiff John Dutcher, a police officer, appeals from the summary judgment dismissal of his personal injury complaint and an order denying his motion for reconsideration. A vehicle struck and injured plaintiff while he was directing traffic at a construction site. The contractor, defendant Black Rock Enterprises, LLC, owned the vehicle, and Black Rock's employee, defendant Pedro Pedeiro, was driving it when the accident occurred.”

Trial Court was affirmed. The worker was a “special employee” and barred under the Exclusivity Rule from proceeding with a civil action against a co-employee of the contractor.

“A “special employment relationship” where the “special employer” is also responsible for worker's compensation exists “[w]hen a general employer lends an employee to a special employer,” and “(a) [t]he employee has made a contract of hire, express or implied, with the special employer; (b) [t]he work being done is essentially that of the special employer; and (c) [t]he special employer has the right to control the details of the work.” Blessing v. T. Shriver & Co., 94 N.J. Super. 426, 430 (App. Div. 1967) ….”

“When an employee is lent by one employer to another his status can be considered that of a ‘special employee.’ In evaluating the employment status of a “special employee,” the court will rely upon the following: whether the employee knows that the original employer will hire him out to special employers and in fact notifies the employee of the name of the special employer; whether a contract for employment, either implied or expressed, exists; who maintains control over the employee; and whether the employee acquiesces to the new employment situation. ” Gelman, Jon L, Workers Compensation Law, 38 NJPRAC 7.2 (Thomson-Reuters 2017).

John DUTCHER, Plaintiff–Appellant, v. Pedro PEDEIRO and Black Rock Enterprises, LLC, Defendants–Respondents. DOCKET NO. A–1088–16T3, Submitted October 25, 2017 , Decided November 22, 2017, 2017 WL 5619258 Only the Westlaw citation is currently available. UNPUBLISHED OPINION. CHECK COURT RULES BEFORE CITING.

*This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

1:36-3. Unpublished Opinions No unpublished opinion shall constitute precedent or be binding upon any court. Except for appellate opinions not approved for publication that have been reported in an authorized administrative law reporter, and except to the extent required by res judicata, collateral estoppel, the single controversy doctrine or any other similar principle of law, no unpublished opinion shall be cited by any court. No unpublished opinion shall be cited to any court by counsel unless the court and all other parties are served with a copy of the opinion and of all contrary unpublished opinions known to counsel. 
Note: Adopted July 16, 1981, to be effective September 14, 1981; caption and rule amended July 13, 1994, to be effective September 1, 1994; amended July 12, 2002, to be effective September 3, 2002; amended July 23, 2010, to be effective September 1, 2010.

Jon L. Gelman of Wayne NJ is the author of NJ Workers’ Compensation Law (West-Thomson-Reuters) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thomson-Reuters). 

For over 4 decades the Law Offices of Jon L Gelman  1.973.696.7900  has been representing injured workers and their families who have suffered occupational accidents and illnesses.