                   NOT FOR PUBLICATION WITHOUT THE
                 APPROVAL OF THE APPELLATE DIVISION

                                    SUPERIOR COURT OF NEW JERSEY
                                    APPELLATE DIVISION
                                    DOCKET NO. A-1156-14T4

PHILIP VITALE,
                                      APPROVED FOR PUBLICATION
     Plaintiff-Respondent,
                                          August 22, 2016
v.
                                        APPELLATE DIVISION
SCHERING-PLOUGH CORPORATION,1

     Defendant-Appellant.
____________________________

          Argued April 27, 2016 — Decided August 22, 2016

          Before Judges Fuentes, Koblitz and Gilson.

          On appeal from Superior Court of New Jersey,
          Law Division, Middlesex County, Docket No.
          L-6175-11.

          Gavin J. Rooney argued the cause for
          appellant    (Lowenstein    Sandler   LLP,
          attorneys; Douglas S. Eakeley, of counsel;
          Mr. Rooney and Joseph A. Fischetti, on the
          briefs).

          Craig M. Rothenberg argued the cause for
          respondent (Rothenberg, Rubenstein, Berliner
          & Shinrod, LLC, attorneys; Mr. Rothenberg,
          of counsel; Mr. Rothenberg and John D.
          Gagnon, on the briefs).

          Jay A. Gebauer argued the cause for amicus
          curiae Allied Barton Security Services, LLC
          (Fowler Hirtzel McNulty & Spaulding, LLP,

1
  According to defendant Schering-Plough Corporation, on November
4, 2009, it merged with Merck & Co. to form the entity Merck &
Co., Inc.
                attorneys;   Mr.   Gebauer                    and        Quinn        M.
                McCusker, on the brief).

       The opinion of the court was delivered by

KOBLITZ, J.A.D.

       This appeal raises a novel question of law in New Jersey:

whether        a    provision        in    an   employment           contract          limiting          a

worker's           right     to    sue     a    third        party       for     negligence             is

enforceable.          Plaintiff Philip Vitale was employed as a security

guard by Allied Barton Security Services, LLC (Allied Barton),

which contracted with defendant Schering-Plough Corporation to

provide security services at defendant's facilities.                                             At the

commencement          of    his    employment        with     Allied          Barton,      plaintiff

signed     a       disclaimer      waiving      his    right        to    sue    any       of    Allied

Barton's customers "to which [he] may be assigned, arising from

or related to injuries which are covered under the Workers'

Compensation statutes."                   In August 2009, plaintiff was injured

while      working         for    Allied   Barton       at    one        of    defendant's          work

sites.         Thereafter, he received workers' compensation benefits

from Allied Barton and also filed this personal injury suit

against defendant.

       A    jury      subsequently         found      defendant's             negligence         caused

plaintiff's injuries and awarded plaintiff $900,000 in damages,

with    additional          amounts       awarded     by     the     court       in    prejudgment

interest, counsel fees, and expenses under the offer of judgment



                                                 2                                              A-1156-14T4
rule, R. 4:58-2.     Defendant appeals from the denial of summary

judgment, arguing the disclaimer was valid and enforceable.                         In

the alternative, defendant also appeals from the final judgment,

arguing a new trial is warranted because the court erred both by

refusing to instruct the jury on comparative negligence, and

allowing a lay witness to provide opinion testimony.                    We affirm

the trial court's determination that the contractual limitation

on   plaintiff's   ability    to   sue       defendant    is    unenforceable      as

against   public   policy    as    expressed      in     case   law   and   in    the

Workers' Compensation Act (WCA), N.J.S.A. 34:15-1 to -142, but

reverse as to the court's refusal to allow the jury to consider

comparative negligence.

                                         I

      Plaintiff began working as a security guard with Allied

Barton in September 2005.          Although he was assigned to many of

defendant's   work   sites,       he   was     never     directly     employed     by

defendant, which had its own in-house security employees.                          In

2008, plaintiff was promoted to the position of field manager,

supervising   Allied    Barton         security    guards       who    worked      at

defendant's sites.     One of his duties as field manager was to

ensure that the guards had proper uniforms, and for that purpose

he stored extra uniforms in the basement of the guardhouse at

defendant's Kenilworth facility.




                                         3                                  A-1156-14T4
      Allied Barton did not have exclusive use of the guardhouse

basement.        Defendant's      security      managers     had   keys   to    the

basement    door,    and    the    basement      was   used    for    storage    by

defendant's      maintenance      and   information     technology     employees.

The basement also contained equipment belonging to another of

defendant's contractors.

      Defendant was responsible for the maintenance of both the

guardhouse and the stairwell to the basement, which one entered

from outside of the guardhouse.                  Defendant employed its own

security manager, who managed the guardhouse and was responsible

for inspecting the property and identifying any safety hazards.

Defendant also employed maintenance staff, who were responsible

for   cleaning    and    repairing      the    guardhouse.     The    maintenance

staff were required to return items to their original location

after using them for the purpose of preventing safety hazards.

      Plaintiff     visited    the      guardhouse     basement      approximately

once per month.         The stairwell had a light fixture, and without

that light, it was pitch black.               The light switch was located at

the top of the stairwell, to the left as one opened the door.

Plaintiff's regular practice was to unlock the basement door,

turn on the stairwell light, and proceed down the stairs.                         At

the time of his accident, the stairwell's heavy, metal door had

a handle on the left, and opened outward to the right, blocking




                                          4                               A-1156-14T4
the security camera.

      In the early morning of August 31, 2009, plaintiff took the

basement keys from the guardhouse, told his coworker he had to

go   downstairs      for    something,       and    subsequently        fell    down    the

basement stairs.       Plaintiff had no recollection of the accident,

or   of   the   moments       immediately         before   and        after    his   fall.

Plaintiff's coworker, Alec Schaffer, went looking for plaintiff

approximately       twenty        minutes    after    plaintiff         left    with    the

basement    keys.          When       Schaffer    opened   the    basement       door   he

noticed the light was off.               After he turned on the light, he saw

plaintiff at the bottom of the stairs, having landed on a brown

paper "cement type" bag.                 At the top of the stairs, near the

door,     Schaffer     saw        a     ladder,    crates,       an    industrial-type

extension cord, and a fifty-pound bag of ice melt that had been

knocked down a few stairs.                  Based upon the positioning of the

bag of ice melt, Schaffer believed plaintiff had tripped over

the bag, causing him to fall.

      According to Schaffer, plaintiff "was in a daze" and was

"out of it."         The front of plaintiff's head was red, and his

glasses were off and on the stairs.                  Plaintiff said, "he fell or

tripped or something."

      When emergency services arrived, plaintiff was conscious

and sitting in a chair.                  He complained of pain in his right




                                             5                                   A-1156-14T4
ankle and left leg, and did not recall losing consciousness.

Plaintiff testified that since the accident he has suffered from

severe headaches and pain in his neck, shoulder, and lower back,

which radiates down his leg.           Notwithstanding his participation

in physical therapy, he continues to have limited mobility and

strength in his shoulder and arm.            Plaintiff had eye surgery in

2012 that largely alleviated the headaches, but he continues to

suffer    cognitive     difficulties,       which    limit   his   social   and

professional    life.          Plaintiff's    experts    opined    plaintiff's

symptoms were the result of permanent injuries he suffered in

the fall.     Defense experts opined plaintiff likely suffered only

minor, non-permanent injuries from the fall, and his symptoms

were     consistent     with     his   age     and     pre-existing    medical

conditions.

                                       II

       Defendant moved for summary judgment based upon the waiver

of liability plaintiff signed on September 27, 2005, when he

began his employment at Allied Barton.              The waiver stated:

                         WORKER'S COMP DISCLAIMER

                   Payment on Work-Related Injuries

            I    understand      that    state     Workers'
            Compensation   statutes    cover   work-related
            injuries that may be sustained by me. If I
            am injured on the job, I understand that I
            am    required    to    notify    my    manager
            immediately.   The manager will inform me of



                                       6                              A-1156-14T4
               my state's Workers' Compensation law as it
               pertains to seeking medical treatment. This
               is   to   assure  that   reasonable   medical
               treatment for an injury will be paid for by
               Allied's Workers' Compensation insurance.

               As a result, and in consideration of Allied
               Security offering me employment, I hereby
               waive and forever release any and all rights
               I may have to:

               -      make a claim, or

               -      commence a lawsuit, or

               -      recover damages or losses

               from or against any customer (and the
               employees   of  any   customer)  of   Allied
               Security to which I may be assigned, arising
               from or related to injuries which are
               covered under the Workers' Compensation
               statutes.

       Plaintiff,          who   has     a     high       school     education,       had    no

recollection of reading or signing the disclaimer, nor did he

"recall ever receiving any explanation or information indicating

that [he] would waive [his] rights to file a lawsuit against

anyone who caused [him] injury in exchange for employment with

Allied-Barton."

       Defendant and amicus Allied Barton argue the trial court

erred   in     denying       summary     judgment,          asserting      the   disclaimer

plaintiff signed with Allied Barton was valid and enforceable.

They    cite       out-of-state        cases    in    which        the   same    or   similar

disclaimers         have    been   upheld           and    argue     the   disclaimer        is

consistent with New Jersey law on exculpatory clauses because it


                                                7                                     A-1156-14T4
does not preclude plaintiff from any remedy for a workplace

injury,      but     simply       limits       plaintiff's          remedy        to    workers'

compensation benefits.

       Plaintiff      responds          that     the       disclaimer      violates       public

policy because it violates the letter and the spirit of the WCA.

We    hold    the    disclaimer          violates       public      policy       both    because

plaintiff was asked to waive his right to sue a third party, in

violation of N.J.S.A. 34:15-40, and to the extent the disclaimer

included      a     waiver       of     claims       for    reckless       and     intentional

conduct.

                                               III

       We review the grant of summary judgment de novo, applying

the same legal standard as the trial court.                                State v. Perini

Corp.,    221      N.J.    412,       425   (2015).         Summary       judgment      must    be

granted        "if        the         pleadings,           depositions,          answers       to

interrogatories           and     admissions         on     file,       together       with    the

affidavits, if any, show that there is no genuine issue as to

any    material      fact       challenged        and      that    the    moving       party   is

entitled to a judgment or order as a matter of law."                                    R. 4:46-

2(c).        "To    the   extent        that   the      grant      or    denial    of    summary

judgment is based on an issue of law, we owe no deference to an

interpretation        of        law    that      flows      from    established          facts."

Perini Corp., supra, 221 N.J. at 425.




                                                 8                                      A-1156-14T4
      Not    all   employment    contracts       that     limit       the   rights   of

employees are contracts of adhesion.               See Rodriguez v. Raymours

Furniture Co., 225 N.J. 343, 366-67 (2016).                         When an employee

has little to no bargaining power and a contract is presented on

"a take-it-or-leave-it" basis, the contract is one of adhesion.

See ibid.      Allied Barton's disclaimer constituted a contract of

adhesion similar to the agreement to arbitrate contained in the

employment application in Rodriguez.                   Plaintiff had no ability

to bargain; he had the choice of either signing the disclaimer

as part of his employment contract or refusing the needed job.

      Although a court may enforce a contract of adhesion, such

contracts are unenforceable if unconscionable.                       See id. at 366.

Whether an employment provision is enforceable depends on an

analysis of the subject of the provision, the sophistication of

the   employee,     and   whether      the    employee        has    some   bargaining

power.      See Martindale v. Sandvik, Inc., 173 N.J. 76, 90 (2002)

(upholding an agreement to arbitrate contained in an adhesion

employment application where the employee was a sophisticated

human resources officer).            "When making the determination that a

contract     of    adhesion     is    unconscionable           and    unenforceable,

[courts] consider, using a sliding scale analysis, the way in

which the contract was formed and, further, whether enforcement

of    the    contract     implicates         matters     of     public      interest."




                                         9                                    A-1156-14T4
Stelluti v. Casapenn Enters., LLC, 203 N.J. 286, 301 (2010).                   In

other   words,   "[t]he      unconscionability    determination        requires

evaluation of both procedure and substance."                Rodriguez, supra,

225 N.J. at 366.

    Plaintiff does not allege any procedural unconscionability.

He has no recollection of signing the disclaimer, and he has

presented no evidence Allied Barton engaged in "fraud, deceit,

or misrepresentation" in obtaining his signature on the form.

See Stelluti, supra, 203 N.J. at 305.          Although the parties were

in an unequal bargaining position, plaintiff was entitled to

reject the disclaimer and seek employment elsewhere.              See id. at

302 (finding a gym's contract of adhesion valid because the

plaintiff    "could   have    taken   her   business   to    another   fitness

club").     Thus, whether the workers' compensation disclaimer is

unenforceable depends on whether the disclaimer violates public

policy.

    "As a general and long-standing matter, contracting parties

are afforded the liberty to bind themselves as they see fit.

Out of respect for that very basic freedom, courts are hesitant

to interfere with purely private agreements."               Ibid. (citations

omitted).    Exculpatory clauses, however, are "disfavored in the

law."     Hojnowski v. Vans Skate Park, 187 N.J. 323, 333 (2006).

They "have been subjected to close judicial scrutiny," Stelluti,




                                      10                               A-1156-14T4
supra, 203 N.J. at 303, because they undermine the principles of

our tort system          by encouraging        "a lack of care," Hojnowski,

supra, 187 N.J. at 333.

       Nevertheless,       exculpatory      agreements      are    enforceable       if

they     "clearly    and     unambiguously         reflect       the     'unequivocal

expression of the party giving up his or her legal rights that

this decision was made voluntarily, intelligently and with the

full knowledge of its legal consequences.'"                  Marcinczyk v. State

Police    Training       Comm'n,   203    N.J.     586,    593    (2010)     (quoting

Gershon v. Regency Diving Ctr., Inc., 368 N.J. Super. 237, 247

(App. Div. 2004)).         "Even if unambiguous, it is well-established

that exculpatory contracts will not be enforced where they are

contrary to public policy."              Id. at 594.        "[S]ources of public

policy include legislation; administrative rules, regulations or

decisions; and judicial decisions."               Hitesman v. Bridgeway Inc.,

430    N.J.    Super.    198,   218   (App.       Div.    2013)    (alteration      in

original) (quoting Pierce v. Ortho Pharm. Corp., 84 N.J. 58, 72

(1980)), aff'd, 218 N.J. 8 (2014).

       For    example,    one   may   not      contract   away     the    statute   of

limitations in a case alleging a violation of the New Jersey Law

Against       Discrimination       (LAD),        N.J.S.A.        10:5-1     to   -49.

Rodriguez, supra, 225 N.J. at 364-65.                 Nor may one diminish by

contract "a statutorily imposed duty," nor execute "a pre-injury




                                          11                                 A-1156-14T4
release    from     liability      for   intentional      or   reckless        conduct."

Stelluti, supra, 203 N.J. at 303.                     Exculpatory agreements for

negligent conduct also "violate public policy in a variety of

settings, such as in residential leases or in connection with

rendering professional services."                 Hojnowski, supra, 187 N.J. at

333 (citations omitted).

                                             IV

      Plaintiff raises public policy concerns in the areas of

premises      liability      and   the     WCA.       "[P]ublic     policy      does    not

demand    a   per     se   ban     against    enforcement      of       an   exculpatory

agreement based on the mere existence of a duty recognized in

the common law in respect of premises liability."                              Stelluti,

supra, 203 N.J. at 306.             "To properly balance the public-policy

interests implicated . . . one must consider the nature of the

activity and the inherent risks involved."                  Id. at 310.

      In Stelluti, our Supreme Court concluded that exercising at

a   health     club    had    inherent       risks.      Thus,      the      health    club

reasonably limited their liability with respect to negligence

claims     arising     from      exercise-related        activities          through    an

exculpatory       agreement.         Id.     at   311-13.         The     health      club,

however, "could not exculpate itself from . . . reckless or

gross negligence."           Id. at 312.          Moreover, the Court noted it

was "not address[ing] the validity of the agreement's disclaimer




                                             12                                  A-1156-14T4
of liability for injuries that occur on the club's sidewalks or

parking lot that are common to any commercial enterprise that

has business invitees."          Id. at 313.

       The     present    case     does    not       involve       inherently      risky

behavior.      Plaintiff was injured while attempting to walk down a

flight of stairs, in the normal course of his job duties, on the

premises of his employer's commercial client.                      This case is thus

distinguishable      from    Stelluti,         and   more     akin    to    a   typical

premises liability case involving a business invitee.

       The applicable legal standard is:

             In New Jersey, "[b]usiness owners owe to
             invitees a duty of reasonable or due care to
             provide a safe environment for doing that
             which is in the scope of the invitation."
             That is because business owners "are in the
             best position to control the risk of harm.
             Ownership or control of the premises, for
             example, enables a party to prevent the
             harm."   It follows that . . .   the risk of
             loss should fall on the party best suited to
             avert injury.

             [Hojnowski,   supra,   187    N.J.  at   335
             (alteration in original) (citations omitted)
             (first quoting Nisivoccia v. Glass Gardens,
             Inc., 175 N.J. 559, 563 (2003); and then
             quoting Kuzmicz v. Ivy Hill Park Apartments,
             Inc., 147 N.J. 510, 517 (1997)).]

       Also,    unlike    Stelluti,       this   case       does    not    involve     an

invitee waiving the right to sue for premises liability directly

with   the     business   owner.      Rather,        this   case     arises     from    an

agreement      between    plaintiff   and      his    employer,      with     plaintiff



                                          13                                    A-1156-14T4
having waived potential negligence claims against unidentified

third parties.           As a customer of Allied Barton, defendant is

clearly      a   third-party      beneficiary      of   the   agreement.        See

Broadway Maint. Corp. v. Rutgers, State Univ., 90 N.J. 253, 259-

60 (1982).       Plaintiff was unaware of the nature of the risks he

was undertaking when he signed the disclaimer because he did not

know who Allied Barton's clients were.                  He therefore could not

know of the working conditions he might encounter while working

at facilities of clients of Allied Barton.

      The disclaimer also creates a disincentive for defendant to

maintain     a    safe     workplace   for    contractors     working      on   its

premises.        Defendant concedes the area in which plaintiff was

injured was accessible by relatively few of its own employees.

Where the company is otherwise insulated from liability through

a disclaimer such as the one at issue, the company has a reduced

incentive to maintain a safe workplace for its contractors.

      To the extent plaintiff waived his right to recover for

reckless or intentional conduct, the disclaimer is also invalid

as against public policy.              Stelluti, supra, 203 N.J. at 303.

Defendant contends plaintiff did not waive such rights, because

the disclaimer only addresses claims covered by the WCA, and

claims of reckless and intentional misconduct are not covered by

the   WCA.       We   do   not   construe    the   WCA's   "intentional     wrong"




                                        14                                A-1156-14T4
exception as broadly as defendant suggests.

       Under      the    "intentional          wrong"       exception,       the    remedy

provided by the WCA is exclusive, with the exception of injuries

resulting        from   an      employer's     "intentional        wrong."         N.J.S.A.

34:15-8.          This exception "must be interpreted very narrowly"

for    the   purpose       of    furthering        the    "underlying      quid    pro    quo

goals" of the WCA.              Mabee v. Borden, Inc., 316 N.J. Super. 218,

226-28 (App. Div. 1998).                To satisfy the narrow exception, our

Supreme      Court       requires        "an        intentional       wrong        creating

substantial certainty of bodily injury or death."                            Van Dunk v.

Reckson Assocs. Realty Corp., 210 N.J. 449, 452 (2012).

       Thus,      conduct        that   would       be     considered       reckless      or

intentional        under     general     tort       law    may    result    in     injuries

covered by the WCA and thus unlawfully waived by the disclaimer.

                                               V

       The next question presented is whether plaintiff's waiver

is congruent with the WCA.               In interpreting a statute, a court's

goal is to effectuate the Legislature's intent.                             N.J. Div. of

Child Prot. & Permanency v. Y.N., 220 N.J. 165, 178 (2014).

"The starting point of all statutory interpretation must be the

language used in the enactment."                    Ibid.        "An enactment that is

part   of    a    larger     statutory    framework         should    not    be    read   in

isolation, but in relation to other constituent parts so that a




                                             15                                    A-1156-14T4
sensible meaning may be given to the whole of the legislative

scheme."      Wilson ex rel. Manzano v. City of Jersey City, 209

N.J. 558, 572 (2012).

       "If the statutory language is clear and unambiguous, and

reveals     the   Legislature's    intent,       we    need    look    no    further."

Farmers Mut. Fire Ins. Co. of Salem v. N.J. Prop.-Liab. Ins.

Guar. Ass'n, 215 N.J. 522, 536 (2013).                        "Only when faithful

adherence to the words of the statute leads to more than one

plausible interpretation or to an absurd result or to a result

at odds with the objective of the overall legislative scheme do

we   look   to    extrinsic    sources,      such     as   legislative       history."

Y.N., supra, 220 N.J. at 178.

       The WCA was enacted in 19112 "to address the variety of

difficulties      workers     encountered     in    attempting        to    recover   in

tort   against     their    employers     for      work-related       injuries,"       by

creating a no-fault system of compensation for workers injured

in the course of their employment.                 Estate of Kotsovska ex rel.

Kotsovska v. Liebman, 221 N.J. 568, 583 (2015).

       The WCA is "social legislation designed to place the cost

of work-connected injury on the employer who may readily provide

for it as an operating expense."                Hersh v. Cty. of Morris, 217


2
  Act of Nov. 4, 1911, ch. 95 (codified as amended at N.J.S.A.
34:15-1 to -142).



                                        16                                     A-1156-14T4
N.J. 236, 243 (2014) (quoting Livingstone v. Abraham & Straus,

Inc.,     111    N.J.    89,    94-95     (1988)).           As     "remedial     social

legislation," it "should be given liberal construction in order

that its beneficent purposes may be accomplished."                          Kotsovska,

supra,     221    N.J.     at    584      (quoting         Cruz    v.    Cent.    Jersey

Landscaping, Inc., 195 N.J. 33, 42 (2008)).

    Our Supreme Court recently held a contract limiting the

statute of limitations in a LAD case was contrary to the public

policy of New Jersey, stating:

            And the anti-discrimination public policy to
            be fulfilled through LAD claims may not be
            contractually curtailed by a limitation on
            the time for such actions.        The waiver
            provision   at   issue in  this   matter  is
            therefore unenforceable as to the LAD.

            [Rodriguez, supra, 225 N.J. at 364-65.]

Similar    to    the    WCA,    "the    LAD     is    remedial     legislation"      that

should     "be    liberally      construed           'in   order    to    advance       its

beneficial purposes.'"             Smith v. Millville Rescue Squad, ___

N.J. ___, ___ (2016) (slip op. at 19) (quoting Nini v. Mercer

Cty. Cmty. Coll., 202 N.J. 98, 115 (2010)).

    New     Jersey      workers'       compensation        law    recognizes     that    an

employee may have two employers, both of which may be liable for

compensation.          Hanisko v. Billy Casper Golf Mgmt., Inc., 437

N.J. Super. 349, 360 (App. Div. 2014); see also Wunschel v. City

of Jersey City, 96 N.J. 651, 663 (1984) (stating the "joint



                                           17                                    A-1156-14T4
employer doctrine" may be used to establish "employment status

for the purposes of workers' compensation").          In such cases, the

employee is barred from maintaining a negligence action against

either employer.        New Amsterdam Cas. Co. v. Popovich, 18 N.J.

218, 225 (1955).

    "[I]f a finding of joint employment is made, one joint

employer may sue a co-employer for contribution in the event it

refused to pay its pro rata share."            Conway v. Mister Softee,

Inc., 51 N.J. 254, 259 (1968).             The co-employers' contractual

relationship, however, may affect any right of indemnification,

Domanoski v. Borough of Fanwood, 237 N.J. Super. 452, 459 (App.

Div. 1989), or subrogation, New Amsterdam Cas. Co., supra, 18

N.J. at 228.

    The      Division    of   Workers'     Compensation   has   "exclusive

original jurisdiction of all claims for workers' compensation

benefits."     N.J.S.A. 34:15-49(a).        Thus, our Supreme Court has

recognized the forum best suited to decide the joint employment

relationship    is   the   workers'   compensation   court.      Wunschel,

supra, 96 N.J. at 664.

    "New Jersey has developed its special-employee doctrine by

adopting the three-prong test recommended by Professor Larson

for establishing a special-employment relationship."              Volb v.

G.E. Capital Corp., 139 N.J. 110, 116 (1995); see also Arthur




                                      18                          A-1156-14T4
Larson et al., Larson's Workers' Compensation Law (2016).

           When a general employer lends an employee to
           a special employer, the special employer
           becomes liable for workers' compensation
           only if:

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

           (b) The work being done is essentially that
           of the special employer; and

           (c) The special employer has the right to
           control the details of the work.

           When all three of the above conditions are
           satisfied in relation to both employers,
           both employers are liable for workmen's
           compensation.

           [Hanisko, supra, 437 N.J. Super. at 360
           (quoting Blessing v. T. Shriver & Co., 94
           N.J. Super. 426, 430 (App. Div. 1967)).]

As to the first factor, "[a]n employee's consent is required

because the employee loses certain rights along with those he

gains   when    he    enters   a    new   employment      relationship.          Most

important,      the   worker      loses   the   right     to   sue     the   special

employer   at    common     law    for    negligence."         Murin    v.   Frapaul

Constr. Co., 240 N.J. Super. 600, 608 (App. Div. 1990).                              Of

these three factors, the most important is whether the special

employer "had the right to control the special employee's work."

Volb, supra, 139 N.J. at 116.              Two additional factors may also

be   considered:      (1)   whether       the   special    employer      pays      the




                                          19                                 A-1156-14T4
employee's wages; and (2) whether the special employer "has the

power to hire, discharge or recall the employee."                          Hanisko,

supra, 437 N.J. Super. at 361 (quoting Blessing, supra, 94 N.J.

Super. at 430).

    Thus the type of relationship between plaintiff, defendant,

and Allied Barton has been recognized and accommodated within

the WCA for decades, perhaps as far back as 1937.                       See Wood v.

Market-Arlington Co., Inc., 15 N.J. Misc. 272, 274 (Dep't Labor

1937).     In 1967, we discussed the concept of joint employers in

a context similar to this case, where a company hired security

guards   and   supplied     them    to    work   guarding    other      businesses'

worksites.     Blessing, supra, 94 N.J. Super. at 427-28.

    We are not persuaded by a decision of the Supreme Court of

Pennsylvania,      Bowman   v.     Sunoco,    Inc.    65   A.3d   901,    910   (Pa.

2013), or one from the District of Columbia Court of Appeals,

Brown v. 1301 K St. Ltd. P'ship, 31 A.3d 902, 908 (D.C. Cir.

2011),     which   found    Allied       Security's    workers'      compensation

disclaimer     enforceable.         These     decisions     do    not    reflect    a

consideration of our State's history concerning joint employers,

nor the policy underpinning our State's workers' compensation

statute.     Both lead us to a different conclusion regarding the

workers' compensation disclaimer.




                                         20                                A-1156-14T4
                                      VI

    Defendant argues that, if the denial of summary judgment is

not reversed, a new trial is nevertheless required because the

court erred in not charging the jury on plaintiff's comparative

negligence.   We agree.

    In its answer, defendant asserted a defense of comparative

negligence, and it pursued that theory at trial.               In his opening

statement, defense counsel argued plaintiff may have fallen due

to his own negligence in entering the stairwell without turning

on the light.       During the charge conference, however, the trial

court granted plaintiff's motion for a directed verdict on that

issue,    finding    no   evidence    to     support   a   conclusion       that

plaintiff had been negligent.              Thus, in his closing, defense

counsel   conceded     plaintiff     was    not   negligent,     contrary     to

counsel's opening argument.

    Thereafter, the trial court denied defendant's post-trial

motion for a new trial, which was based in part upon the court's

refusal to charge comparative negligence.           The court stated:

           As to the issue of the inference of
           comparative negligence, the only . . . piece
           of evidence that is being suggested as the
           basis is the fact that the lights were off.
           I don't know how that would allow a jury to
           infer that he tried to go down the steps in
           the dark. You know, even if there had never
           been anything on the steps. . . in any of
           his other journeys, it just seems illogical
           to assume that somebody -- or even infer



                                      21                             A-1156-14T4
that somebody would go down into a pitch
black -- what was it three or four o'clock
in the morning. . . , no windows, no lights,
no nothing, without turning the light on.

    . . . .

     . . . [T]he evidence was that there was
this bag that appeared to have been knocked
over on the step from its position. . . .
There was a ladder. There was an extension
cord.

    . . . .

     So   the   single  piece  of  evidence
available to the jury as to . . . how Mr.
Vitale might have fallen down would be,
well, the light was off. Well, I don't know
that that in any way reasonably infers that
he was negligent.

    . . . .

     . . . [T]he only piece of evidence that
we have in the record is the light switch
being off at the time.    There is no way a
jury can . . . reasonably infer that he
attempted to negotiate the steps in the
pitch black.   How is he going to find what
he's looking for in the basement if he
doesn't turn the light on? It just doesn't
make any sense.

     . . . [Y]ou're asking a jury to infer
that somebody would go down an entire flight
of stairs with a door at the end of it in
the dark.   Why would they infer that?   Why
would anybody infer that?

    . . . .

     . . . How would you reasonably infer
someone would be unreasonable? I don't know
that you should or could, but it would be
pure speculation.



                     22                        A-1156-14T4
         Under Rule 4:40-1, a party may make a motion for a directed

verdict "either at the close of all the evidence or at the close

of the evidence offered by an opponent."                  A motion for directed

verdict must be denied if, "accepting as true all the evidence

which supports the position of the party defending against the

motion and according him the benefit of all inferences which can

reasonably     and    legitimately      be     deduced    therefrom   reasonable

minds could differ."           Potente v. Cty. of Hudson, 187 N.J. 103,

111 (2006) (quoting Monaco v. Hartz Mountain Corp., 178 N.J.

401, 413 (2004)).           "[W]e apply the same standard that governs

the trial courts."            Frugis v. Bracigliano, 177 N.J. 250, 269

(2003).

         "New Jersey law favors the apportionment of fault among

responsible parties."              Boryszewski v. Burke, 380 N.J. Super.

361, 374 (App. Div. 2005), certifs. denied, 186 N.J. 242 (2006).

"[A]n employee's contributory negligence is generally available

as   a    defense    when    the    employee   sues   a    third   person     in   an

ordinary negligence action."              Kane v. Hartz Mountain Indus.,

Inc., 278 N.J. Super. 129, 150 (App. Div. 1994), aff'd o.b., 143

N.J. 141 (1996).            Under the Comparative Negligence Act (CNA),

N.J.S.A. 2A:15-5.1 to -5.8,

             In all negligence actions . . . in which the
             question of liability is in dispute, . . .
             for negligence resulting in injury to the



                                         23                                 A-1156-14T4
             person . . . the trier of fact shall make
             the following as findings of fact:

                    (1) The amount of damages which would
                    be recoverable by the injured party
                    regardless of any consideration of
                    negligence or fault, that is, the full
                    value of the injured party's damages.

                    (2) The extent, in the form of a
                    percentage, of each party's negligence
                    or fault. The percentage of negligence
                    or fault of each party shall be based
                    on   100%   and  the   total  of   all
                    percentages of negligence or fault of
                    all the parties to a suit shall be
                    100%.

             [N.J.S.A. 2A:15-5.2(a).]

"The guiding principle of our State's comparative fault system

has   been    the    distribution   of    loss   'in   proportion   to    the

respective faults of the parties causing that loss.'"               Brodsky

v. Grinnell Haulers, Inc., 181 N.J. 102, 114 (2004) (quoting

Blazovic v. Andrich, 124 N.J. 90, 107 (1991)).

      To assert a defense of comparative negligence, "there must

be evidence in the record from which a legitimate inference may

be drawn that plaintiff's conduct was negligent and that his [or

her] negligence was a proximate cause" of his injuries.                     La

Morgese v. Kern-O-Mix, Inc., 82 N.J. Super. 581, 586 (App. Div.

1964).   Although a defendant must produce some evidence, "the

quantum of evidence required to qualify for an apportionment

charge is low."      Boryszewski, supra, 380 N.J. Super. at 384.




                                     24                             A-1156-14T4
       Here, plaintiff had an obligation to exercise reasonable

care by using his own faculties to observe and avoid dangerous

conditions.       See, e.g., Berger v. Shapiro, 30 N.J. 89, 99 (1959)

("If the guest is aware of the dangerous condition or by a

reasonable use of his [or her] faculties would observe it, the

host is not liable.").           Arguably, a slight piece of evidence

supported     the   conclusion       that    plaintiff      acted   negligently        by

proceeding in the dark.              When Schaffer found plaintiff at the

bottom   of   the    stairs,    the    stairwell        light   was      off    and   the

stairwell was pitch black.              Schaffer was able to turn on the

light without falling down the stairs.                  Thus, plaintiff may have

voluntarily negotiated the staircase landing in the dark.                             From

this slim evidence, the jury could infer plaintiff was negligent

in not immediately turning on the stairwell light, causing him

to trip over a hazard that he otherwise would have been able to

avoid, resulting in his fall down the stairs.

       Significant     countervailing            evidence    indicates         plaintiff

tripped over an object negligently stored at the top of the

stairwell before he had the opportunity to turn on the light,

and the object was no longer at the top of the stairwell when

Schaffer entered.           Further, plaintiff's failure to immediately

turn   on   the     light    would    have       been   contrary    to    his    normal

practice.     As the trial court noted, an attempt to negotiate the




                                            25                                  A-1156-14T4
basement      steps        in     complete       darkness    would       have      been

unreasonable.       This factual dispute, however, should have been

resolved by the jury rather than the court.

    Based on the existing evidence of plaintiff's negligence,

albeit   slim,      the    trial    court    erred    in    granting     plaintiff's

motion for judgment on the issue of comparative negligence, and

the court should have charged the jury on that defense.

    We thus reverse the judgment and remand for a new trial on

liability     only,       at    which   plaintiff's     comparative      negligence

should be considered by the jury.                 The verdict on damages need

not be retried.       See Ogborne v. Mercer Cemetery Corp., 197 N.J.

448, 462 (2009) ("When the damages award is not tainted by the

error    in   the   liability       portion      of   the   case   and    is    fairly

separable, retrial need not include the issue of damages.").

                                          VII

    Defendant argues a new trial is warranted based upon the

trial court's admission of Schaffer's lay opinion testimony as

to the cause of plaintiff's fall.                We review evidentiary rulings

for an abuse of discretion, and should not reverse unless "there

has been a clear error of judgment."                    State v. Nantambu, 221

N.J. 390, 402 (2015) (quoting State v. Harris, 209 N.J. 431, 439

(2012)).      Here, Schaffer's testimony was merely a repetition of

what was introduced into evidence, without objection, by way of




                                            26                                 A-1156-14T4
Schaffer's     investigative          report.           See    R.   2:10-2      (stating     an

appellate      court    may       "notice    plain      error       not   brought     to    the

attention of the trial" court only if "it is of such a nature as

to have been clearly capable of producing an unjust result").

No abuse of discretion occurred.

       At trial, over defense counsel's objection, Schaffer was

permitted to testify as to his belief that plaintiff tripped

over    the    clutter       at     the     top    of    the     stairs.         On    direct

examination        by   plaintiff's         counsel,      Schaffer        was    questioned

about    the       special    incident        report      that       he   prepared       after

plaintiff's accident.               In the course of that questioning, the

following testimony was elicited:

              Q.    Under "Incident Caused By" you wrote
              "clutter entrance."   What did you mean by
              that?

              A.   That's what I meant, cluttered, meaning
              those items that we were talking about
              before. Obviously it caused the accident.

              MR. GOLD:       Objection.

              THE COURT:     I will overrule it if                         it's
              obvious to him, he's the eyewitness.

                     . . . .

              THE COURT:       It's his observation.

              BY MR. ROTHENBERG:

              Q.    -- you can continue.

              A.     So, . . . that's why I put down clutter



                                              27                                      A-1156-14T4
             incident, okay.  I saw that bag and the --
             and the stuff up there, you know.    You're
             trying to get down the stairs and the light
             was out.

             Q.   You then wrote, "Reason for Incident,"
             and it says "unknown." What did you mean by
             that?

             A. . . . . I don't know why it happened. I
             didn't know why he went down the stairs,
             okay. So, it was unknown why the situation
             occurred.   Why did he take the keys?   Why
             did he have to go downstairs? I don't know.
             So, that's why I put it down.

             Q. But as [to] what caused him to fall you
             believe it was the cluttered --

             A.   Yeah, the clutter --

             MR. GOLD:    Objection.

             THE WITNESS:    -- and stuff.

             MR. GOLD:    -- leading.

             THE COURT: Well, I will -- I will overrule
             the objection, it has already been asked and
             answered. You can continue.

       Thereafter,       defense   counsel       cross-examined      Schaffer

regarding his opinion, and the subject was covered again on re-

direct    and     on   re-cross,   with     Schaffer   explaining    that    he

believed plaintiff tripped over the bag of ice melt, because the

bag had been knocked over, down a few stairs.

       Post-trial, defendant moved for a new trial, in part based

upon   the   court's     alleged   error    in   admitting    Schaffer's    lay

opinion as to the cause of plaintiff's fall.                 The court denied



                                       28                            A-1156-14T4
the    motion,      finding      Schaffer    had    testified     only    as    to   his

observations and reasonable inferences from his observations.

       Under      N.J.R.E.    701,    lay    opinion     is    admissible       if   the

testimony "(a) is rationally based on the perception of the

witness      and    (b)   will     assist    in     understanding      the     witness'

testimony or in determining a fact in issue."                        "Pivotal to the

admissibility of N.J.R.E. 701 evidence is perception acquired

through the senses."              In re Trust Created by Agreement Dated

Dec. 20, 1961, 194 N.J. 276, 283 (2008).

       Schaffer's testimony that plaintiff had tripped and fallen

over a bag of ice melt was rationally based on his perception of

the scene.         When Schaffer discovered plaintiff at the bottom of

the stairwell, he saw a bag of ice melt knocked down a few steps

and observed other items stored at the top of the stairwell.

His testimony was not speculative nor did his testimony negate

the possibility that plaintiff stumbled and fell for some other

reason, as argued by defendant.                     Schaffer's impressions were

significant because he was first on the scene and obligated to

complete a report regarding the incident.                     See, e.g., State v.

LaBrutto,         114     N.J.     187,     199-202      (1989)       (holding       the

investigating        police      officer    could    testify    as    a   non-expert,

based on his own observations, as to the point of impact of two

cars    in   an     automobile      accident       case).      Significantly,        the




                                            29                                 A-1156-14T4
testimony did not produce an unjust result because Schaffer's

testimony was a repetition of the information contained in his

investigative report.

    Affirmed in part, reversed in part and remanded for further

proceedings.   We do not retain jurisdiction.




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