                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        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.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-3294-17T3

RONALD CARABELLO,

         Plaintiff-Appellant,

v.

JACKSON DAWSON
COMMUNICATIONS, INC., and
TRANSCEND CREATIVE
GROUP, LLC,

     Defendants-Respondents.
____________________________

                   Argued February 27, 2019 - Decided March 26, 2019

                   Before Judges Koblitz and Mayer.

                   On appeal from Superior Court of New Jersey, Law
                   Division, Bergen County, Docket No. L-10206-15.

                   Ernest P. Fronzuto argued the cause for appellant
                   (Fronzuto Law Group, attorneys; Ernest P. Fronzuto
                   and Casey Anne Cordes, on the brief).

                   Christina P. Fisher argued the cause for respondent
                   (Law Office of William E. Staehle, attorneys; Christina
                   P. Fisher, on the brief).
PER CURIAM

      Plaintiff Ronald Carabello appeals from the October 10, 2017 order

granting defendants, Jackson Dawson Communications, Inc. (Jackson) and its

subsidiary Transcend Creative Group, LLC (Transcend), summary judgment

based on the court's determination that when plaintiff was injured he was a

"special employee" of defendants and therefore entitled only to benefits under

the Workers' Compensation Act, N.J.S.A. 34:15-8. Plaintiff also appeals from

the February 20, 2018 order denying reconsideration. Because plaintiff was not

a special employee, we reverse.

      Plaintiff began working for the New Jersey Sports and Exposition

Authority (NJSEA) as a teamster truck driver in 1987. He operated a NJSEA-

owned forklift at the Izod Center for event setup. He operated the same forklift

for four years prior to his accident.       He also made deliveries on behalf of

NJSEA.

      Plaintiff testified at deposition to the following. When setting up for

events, he worked for NJSEA, although he "[s]ometimes" took direction from

the non-NJSEA people running the events. His NJSEA supervisors directed him

to help with event setup, by operating the forklift and assisting others:

"Whatever [event set-up] need[s], I would have to do." Plaintiff said once his


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                                        2
NJSEA supervisors told him to assist the event set-up, he then was "under the

authority of whoever else was telling [him] what to do."

      NJSEA contracted with Transcend for the use and occupancy of the Izod

Center for a Mercedes Benz event, which included a driving course, between

July 14 and July 18, 2014. The terms of the contract were set forth in the facility

occupancy license and included "set up and tear-down of the full event." The

license provided:

            [Defendants] shall pay to [NJSEA] the cost of all direct
            and indirect labor, materials, supplies and service costs
            incurred by [NJSEA] as a result of the [e]vent, ordinary
            wear and tear excepted, and such other direct labor and
            special services as [NJSEA] may deem necessary or the
            licensee may request.

The agreement provided defendants would be responsible for certain fees,

including a charge for a 5000 pound forklift with "extended forks." Defendants

had to "abide by all applicable provisions of the [NJSEA]'s collective bargaining

agreements covering the [NJSEA] employees who are union employees."

      The Jackson Director of Automotive and Digital Solutions, who managed

construction of the driving course, testified at deposition that because NJSEA

was a "union city," it provided the forklift.     Plaintiff was the only forklift

operator at the Izod Center during the event. He was assigned by his NJSEA

supervisors to operate the forklift to unload defendants' truck for two days. He

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                                        3
worked for two and one-half hours on day two before his injury occurred.

Plaintiff testified that on the second day his NJSEA supervisors instructed him

to take direction from an individual he believed worked for defendants. Plaintiff

said: "I was told to report to Jackson[]'s head man on the premises whose name

I did not know and whom I had never met before."

      NJSEA did not allow defendants to secure their tent structure by drilling

spikes or anchors into the pavement, as they had done at other venues. Instead,

defendants used fifty-five gallon barrels filled with water to anchor the tent

structure.

      The "head man" instructed plaintiff to transport barrels filled with water

using the forklift, despite plaintiff proposing that it might be better to transport

the barrels while they were empty. While loading the filled barrels onto the

forklift, two barrels fell off. Plaintiff was instructed to "[t]ake the extensions

off" and "[p]ush the forks together," creating a ramp. The "head man" then

helped plaintiff fill the barrels with water and load them on the reconfigured

forklift. Plaintiff transported the filled barrels with the forklift one or two

barrels at a time. The mechanics of the forklift required him to manually remove

the barrels by "dragging the barrels off the forklift."         Plaintiff's NJSEA

supervisor informed him no one from NJSEA was available to help because


                                                                           A-3294-17T3
                                         4
"[t]hey were doing other details." As plaintiff moved the last of sixteen barrels

off the forklift, he "felt a pop in [his] shoulder."

      Plaintiff drove to the NJSEA medical unit on the forklift and from there

called his NJSEA supervisor to let him know that he hurt his shoulder while

moving the barrels. Plaintiff filled out an incident report for NJSEA while he

was in the medical unit.       After speaking with NJSEA emergency medical

technicians, he was transported to "the NJSEA contracted medical care provider

for workers compensation." Plaintiff testified his only task for defendants' event

that day was moving the barrels. After that was completed, he would have been

doing other work for NJSEA had he not been injured.

      In response to plaintiff's employee claim petition, NJSEA admitted that

the injury occurred during the course of his employment with NJSEA. Plaintiff

received workers' compensation benefits from NJSEA. He then sought further

compensation from defendants. The trial court granted defendants summary

judgment as a "special employer."

      "We review a grant of summary judgment de novo, using the same

standard that applied in the trial court." C.W. v. Cooper Health Systems, 388

N.J. Super. 42, 57 (App. Div. 2006). The inquiry is "whether the evidence

presents a sufficient disagreement to require submission to a jury or whether it


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                                          5
is so one-sided that one party must prevail as a matter of law." Ibid. (quoting

Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995)). A reviewing

court will "review the facts in the light most favorable to" the non-moving party.

DiProspero v. Penn, 183 N.J. 477, 482 (2005) (citing R. 4:46-2(c)).

      The five-factor test for determination of a "special employer-employee

relationship" is laid out in Kelly v. Geriatric and Medical Services, Inc., 287

N.J. Super. 567, 571-72 (App. Div. 1996), which provides:

            The applicable, though not exclusive, legal criteria to
            establish a special employer-special employee
            relationship involves the following fact sensitive five-
            pronged test:

            (1) the employee has made a contract of hire, express or
            implied, with the special employer;

            (2) the work being done by the employee is essentially
            that of the special employer;

            (3) the special employer has the right to control the
            details of the work;

            (4) the special employer pays the employee's wages; and

            (5) the special employer has the power to hire, discharge
            or recall the employee.

            [Ibid.]

      In Walrond v. Cty. of Somerset, 382 N.J. Super. 227, 236 (App. Div. 2006)

we discussed the weight to be given each factor:

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                                        6
             Traditionally, the five factors are weighed to determine
             special employment. No single factor is "necessarily
             dispositive, and not all five must be satisfied in
             order for a special employment relationship to
             exist." Marino v. Ind. Crating Co., 358 F.3d 241, 244
             (3d Cir. 2004) (citing [Blessing v. T. Shriver & Co., 94
             N.J. Super. 426, 433-34 (App. Div. 1967)]). Generally,
             however, it is believed that the most significant factor
             is the third: whether the special employer had the right
             to control the special employee.
             [Ibid.]

      It is not enough to review the language of the factors without an

investigation into the factual background provided in the case law. In Blessing,

a special employee relationship was found not to exist after a jury awarded

damages to the plaintiff. 94 N.J. Super. at 427-28, 439. The plaintiff was an

employee of a detective agency who "was transferred from one locale to another

as directed" by the detective agency. Id. at 428. The plaintiff had been working

at defendant's foundry for three months before incurring an injury. Ibid. We

concluded:

             There can be no doubt that the guardwork done by
             plaintiff was undertaken in pursuance of [the detective
             agency's] contract with defendant. The benefit derived
             from the operation certainly accrued to defendant, but
             the actual work being done was the security job that
             [the detective agency] was hired to do. The control
             exercised by defendant over Blessing was only
             incidental in nature and of no particular legal
             significance. Also important is the fact that the proofs

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                                        7
            do not suggest any consensual relationship between
            plaintiff, a so-called "loaned" employee, and defendant
            for whose benefit his services as a guard were rendered.
            While such a consent may be expressed or implied,
            there is nothing in the record upon which to predicate a
            finding of knowledgeable consent or a fair inference
            that an employment relationship between those parties
            existed.

            [Id. at 436.]

Blessing was cited in the 2004 federal case of Marino, where the federal court

also found the plaintiff was not a special employee, interpreting New Jersey law

to allow an electrician, employed by an electric company and assigned to

defendant's construction site for several weeks, to sue defendant for damages,

in spite of the defendant's daily job instructions. 358 F.3d at 243, 246, 253.

Similarly, in Murin, we found no special employment relationship where the

plaintiff was an employee of a steel company for eighteen years, the defendant

rented a concrete mixer truck from the steel company, and the plaintiff was

assigned as the operator of the truck. Murin v. Frapaul Const. Co., 240 N.J.

Super. 600, 603-04 (App. Div. 1990). The plaintiff worked on the job for nine

days and sued the defendant after the defendant's employee turned on a hose that

caused the plaintiff to fall from the top of the truck. Id. at 604

      In Kelly, we found a special employment relationship where the plaintiff

was a nurse employed by a staffing company who injured herself while working

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                                         8
at the defendant geriatric facility. 287 N.J. Super. at 570, 576 (noting the

plaintiff's "work duties and job performances were assigned, directed and

overseen by" the defendant, her "daily activities were controlled by" the

defendant and "there was an absence of any such control by" the staffing

company).

        Here, plaintiff was hired as a union forklift operator, similar to the cement

truck operator plaintiff in Murin. See 240 N.J. Super. at 604. Except here,

plaintiff worked at the Izod Center rather than defendant's worksite, and had

only worked under defendants' direction for a few hours. Thus, plaintiff had a

lesser relationship with defendants than the plaintiff in Murin. See ibid. The

five special employment factors must be reviewed with that factual backdrop in

mind.

        First, no express contract was agreed to between plaintiff and defendants.

Plaintiff agreed to defendants' supervision at the NJSEA site, because he was

directed to by NJSEA. Second, plaintiff was "essentially" doing the work of

NJSEA when viewing the facts in the light most favorable to him. See Kelly, 287

N.J. Super. at 571; see also Brill, 142 N.J. at 540. Murin explains "that the

employee remains in his general employment so long as, by the service rendered




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                                          9
another, he is performing the business entrusted to him by the general

employer." 240 N.J. Super. at 608.

      In Murin, we discussed the second element:

             There is no inference that because the general employer
             has permitted a division of control, it has been
             surrendered.       The presumption of continued
             employment by the general employer is taken for
             granted as the beginning point of any lent-employer
             problem. To overcome this presumption a party must
             clearly demonstrate that a new temporary employer has
             been substituted for the old employer.             This
             demonstration must include a showing that a contract
             was made between the special employer and the
             employee. Although consent to a new contract with a
             special employer may be implied from the employee's
             acceptance of the special employer's control and
             direction, such acceptance may actually be a
             continuance of obedience to the general employer's
             commands.

             [Id. at 608-09 (citations omitted).]

The court in Murin further noted, in circumstances similar to those occurring

here, "[a] continuance of the general employment is also indicated in the

operation of a machine where the general employer rents the machine and a

servant to operate it, particularly if the instrumentality is of considerable value."

Id. at 609. "This is based on arguments that the general employer would

naturally reserve control necessary to ensure that his equipment is properly used,



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                                        10
and that a substantial part of any such operator's duties would consist in the

continuing duty of maintenance of the equipment." Ibid.

      The third factor, whether plaintiff's work was controlled by defendants, is

not clear-cut. Defendants told plaintiff to move the barrels, but NJSEA told

plaintiff to use the forklift to help defendants set up the event. Against the

factual backdrop of prior case law, this factor does not clearly point to a special

employee relationship with defendants. The court in Murin noted "the right to

control the end result is distinguished from the method of arriving at it, and falls

short of showing employment. Thus the borrower of a truck and driver can

specify the cargo, destination and route without thereby being deemed to assume

control of the work." Id. at 610 (citation omitted). Plaintiff testified the scope

of his employment for NJSEA included helping production personnel with event

setup, which involved operating the forklift and assisting others during the

production process.

      Regarding the fourth factor, payment of plaintiff by defendants, although

defendants paid a fee for operation of the forklift, they did not pay plaintiff's

salary. Murin, 240 N.J. Super. at 604, 611 (finding no special employment

relationship existed where the defendant paid a fee to the general employer,

concluding the defendant did not pay the plaintiff's salary). Finally, regarding


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                                        11
the fifth factor, the license does not provide defendants with the authority to hire

or discharge plaintiff.

      Because the facts supporting the five factors are similar to those cases

where a special employee relationship was found not to exist, we reverse and

remand for further proceedings. We do not retain jurisdiction.




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