Dismissal of tort action affirmed based on a finding that the defendant was the plaintiff’s “special employer.”

The plaintiff was hired by a jewelry store—owned by the defendants’ mother—who later instructed her to work full-time at the defendants’ home. They directed the plaintiff’s day-to-day work duties and controlled her working conditions, but the jewelry store paid her wages as the defendants’ full-time housekeeper and nanny. The defendants never themselves paid wages to the plaintiff.

The plaintiff broke her ankle in the defendants’ home and filed a personal injury claim. The defendants denied liability pursuant to N.J.S.A. 34:15-8, which bars an employee from pursuing a tort remedy against her employer. The plaintiff asserted that she was not the defendants’ employee but was an employee of the jewelry store. The trial judge found that the defendants were the plaintiff’s “special employer” and were shielded from tort liability for the plaintiff’s injuries. The plaintiff appealed.

In affirming the trial judge’s ruling, the Appellate Division relied on Blessing v. T. Shriver & Co., 94 N.J. Super. 426 (App. Div. 1967). A “special employment” analysis is used where a temporary employment agency lends one of its employees to a client of the agency. In such situations, the employee is considered to be temporarily employed by the borrowing or “special employer.” In Blessing, the Appellate Division described a five-factor test to be utilized in determining if a special employment relationship exists.

The court must consider whether: (1) an express or implied contract existed between the special employee and the special employer; (2) the work was essentially that of the special employer; (3) the special employer had the right to control the details of the work; (4) the special employer paid the employee’s wages; and (5) the special employer had the power to hire, release or re-hire the employee. Because four of the five Blessing factors showed that the plaintiff was a special employee of the defendants, and the fifth factor is not dispositive, the trial court concluded that the workers’ compensation bar prohibits the plaintiff from suing the defendants for tort recovery.

_{Case Law Alerts, 2^nd Quarter, April 2015}

_{Case Law Alerts is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2015 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.}