NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5053-12T4
ERIC G. HANISKO,
Plaintiff-Appellant, APPROVED FOR PUBLICATION
v. September 8, 2014
BILLY CASPER GOLF MANAGEMENT, APPELLATE DIVISION
INC. and CRANBURY GOLF CLUB, LLC,
Defendants-Respondents,
and
SKY CRANBURY, INC.,
Defendant.
_____________________________________
Argued May 29, 2014 – Decided September 8, 2014
Before Judges Sapp-Peterson, Lihotz and
Maven.
On appeal from the Superior Court of New
Jersey, Law Division, Mercer County, Docket
No. L-110-11.
Eric J. Ludwig argued the cause for
appellant (Stark & Stark, attorneys; Mr.
Ludwig, of counsel and on the brief).
Joseph F. Skinner argued the cause for
respondents (Daly, Lamastra & Cunningham,
attorneys; Mr. Skinner, of counsel and on
the brief).
The opinion of the court was delivered by
SAPP-PETERSON, P.J.A.D.
Plaintiff appeals from the trial court order granting
summary judgment to defendants, Billy Casper Golf Management,
Inc. (BCGM) and Cranbury Golf Club, LLC (CGC), in this workplace
injury case. We affirm.
BCGM is a corporation specializing in golf course
management. It owns or operates more than 140 facilities in
twenty-eight states. CGC is the owner of a 120-acre golf club
(club) located in West Windsor. Plaintiff works as the
superintendent of the club. He was hired in March 2008, after
accepting a written February 27, 2008 offer of employment
extended to him, on behalf of CGC and BCGM, by Colleen Suozzo,
the club's general manager, to whom he reported directly. His
employment package included the provision of housing at the
club. On April 11, 2009, he fractured his ankle when he slipped
and fell on what plaintiff alleges was a defectively-constructed
wooden step in his residence.
On January 13, 2011, he filed a complaint against BCGM,
CGC, and Sky Cranbury, Inc.,1 alleging negligence. Defendants
answered the complaint denying the allegations, asserting nine
affirmative defenses, but did not raise the employer's immunity
1
Sky Cranbury, Inc. is an affiliate of CGC, and the entity that
executed a management agreement with BCGM. It was subsequently
dismissed from the case by agreement of the parties.
2 A-5053-12T4
defense under the Workers' Compensation Act (Act), N.J.S.A.
34:15-1 to —128, specifically, N.J.S.A. 34:15-8. Two months
later, plaintiff filed a workers' compensation claim petition
against BCGM alleging he sustained a work-related injury as a
result of his fall, which arose out of and in the course of his
employment. BCGM's insurance carrier filed an answer denying
compensability and asserting plaintiff's injury was not work-
related.
Upon completion of discovery, defendants moved for summary
judgment, arguing plaintiff's joint employment with CGC and BCGM
barred the court's jurisdiction over plaintiff's personal injury
complaint. During oral argument, plaintiff's counsel objected
to the court's consideration of a signed version of the written
offer of employment extended to plaintiff by Suozzo. The signed
copy of the letter agreement was not turned over to plaintiff's
counsel until two months following the close of discovery and it
was unaccompanied by a certification pursuant to Rule 4:17-7.
Judge Paul Innes granted summary judgment to defendants,
finding that "either under the special employers' test or the
joint employer test, on either test plaintiff was . . . [an]
employee of both [BCGM and CGC]." The court, although
recognizing the fully executed letter agreement of employment
was not provided until after the close of discovery, found that
3 A-5053-12T4
"the fact of the matter is that the written agreement that was
provided and shown [during depositions] to both Mr. Hanisko . .
. and Ms. Suozzo . . . was exactly the same as the signed
agreement that was provided to plaintiff when it was provided."
Consequently, Judge Innes reasoned:
Under the circumstances, M[r]. Hanisko
authenticated the document -- that's the
letter that was provided to Mr. Hanisko,
and, in fact, Mr. Hanisko worked in
accordance with the offer of employment that
was submitted to him by way of the
agreement. So I'm not disturbed by the fact
that only the signed agreement was given at
the later time. The actual unsigned
agreement had been provided [to] the
plaintiff, and I don't find any prejudice to
plaintiff by allowing the unsigned agreement
in this particular matter.
Finally, Judge Innes rejected plaintiff's argument that
defendants waived the statutory defense under the Act because
they did not raise this defense until summary judgment. The
present appeal followed.
On appeal, plaintiff raises several points for our
consideration. First, plaintiff contends defendants were
judicially estopped from raising the exclusivity provisions of
the Act. Second, plaintiff urges defendants waived their
employer immunity defenses. Third, plaintiff asserts there was
no express contract of employment between plaintiff and either
CGC or BCGM. Fourth, plaintiff argues there was no implied
4 A-5053-12T4
contract of employment with CGC. Finally, plaintiff contends
his third-party premises liability action was properly venued in
Superior Court pursuant to N.J.S.A. 34:15-40.
We have considered these points in light of the record,
briefs submitted, arguments advanced, and applicable legal
principles, and we reject each of the points advanced. We
affirm substantially for the reasons expressed by Judge Innes in
his clear and cogent oral decision of May 24, 2013.
In our de novo review of a trial court's grant or denial of
summary judgment, we employ "the same standard that governs
trial courts in reviewing summary judgment orders." Prudential
Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App.
Div.), certif. denied, 154 N.J. 608 (1998). Our task is to
determine whether there are genuinely disputed issues of fact
sufficient to defeat summary judgment and sufficient to submit
for resolution before the trier of fact. Brill v. Guardian Life
Ins. Co. of Am., 142 N.J. 520, 540 (1995); R. 4:46-2. In
undertaking that task, we "view the evidence in the light most
favorable to the non-moving party[,]" W.J.A. v. D.A., 210 N.J.
229, 238 (2012), without owing any special deference to the
"trial court's interpretation of the law and the legal
consequences that flow from established facts[.]" Manalapan
5 A-5053-12T4
Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378
(1995).
We first address plaintiff's contention that defendants are
judicially estopped from asserting the employer's immunity
defense under the Act or, alternatively, they have waived their
ability to assert this defense. We reject both contentions.
The judicial estoppel doctrine is an extraordinary remedy
which should be invoked only "'when a party's inconsistent
behavior will otherwise result in a miscarriage of justice.'"
Kimball Intern., Inc. v. Northfield Metal Prods., 334 N.J.
Super. 596, 606 (App. Div. 2000) (quoting Ryan Operations G.P.
v. Santiam-Midwest Lumber Co., 81 F.3d 355, 365 (3d Cir. 1996)).
Under the doctrine, "[w]hen a party successfully asserts a
position in a prior legal proceeding, that party cannot assert a
contrary position in subsequent litigation arising out of the
same events." Kress v. La Villa, 335 N.J. Super. 400, 412 (App.
Div. 2000), certif. denied, 168 N.J. 289 (2001).
However, "[t]o be estopped a party must have convinced the
court to accept its position in the earlier litigation." Ali v.
Rutgers, 166 N.J. 280, 288 (2000). That did not occur here. It
is undisputed that defendants, in their defense to plaintiff's
workers' compensation petition, previously asserted that
plaintiff's injuries were not work-related. At the time
6 A-5053-12T4
defendants moved for summary judgment in the Law Division, the
workers' compensation action had not been resolved. It was
subsequently resolved by way of settlement, resulting in the
voluntary dismissal of the claim petition without the judge of
compensation resolving the jurisdictional question whether
plaintiff's injuries were work-related. "Because the doctrine
of judicial estoppel only applies when a court has accepted a
party's position, a party ordinarily is not barred from taking
an inconsistent position in successive litigation if the first
action was concluded by a settlement." Kimball, supra, 334 N.J.
Super. at 607.
Plaintiff's reliance upon Cummings v. Bahr, 295 N.J. Super.
374 (App. Div. 1996), is misplaced. First, Cummings involved
multiple contradictory arguments raised in different hearings in
the same personal injury action. Id. at 388. Here, plaintiff
sought distinct relief from separate judicial fora against
different permutations of defendants. Specifically, plaintiff's
March 9, 2011 workers' compensation claim named only BCGM as
respondent, whereas his July 13, 2011 Superior Court complaint
named BCGM, CGC, Sky Cranbury, Inc., and other fictitious
parties. Second, the initial argument set forth in Cummings
resulted in a final decision by the court, reached in part, on
the basis of the plaintiff's concession she was a licensee. Id.
7 A-5053-12T4
at 381. In her second motion for reconsideration the plaintiff
advanced "a new theory as to liability premised on a new
characterization of [her] status." Id. at 384. Here, the
record does not reflect, nor does plaintiff identify, any
factual determination of the judge of compensation, which
furthered the parties' settlement efforts and resulted in the
ultimate agreement of compensation in the amount of $12,500.
Third, we discern no incompatibility between the positions
advanced by defendants in the two fora, as were the
circumstances in Cummings. In the Superior Court action,
defendants invoked the employer's immunity doctrine, asserting
that a special employee-special employer relationship existed
between CGC and plaintiff. In the workers' compensation action,
BCGM argued the injury did not arise in the course of
employment. The position advanced by defendants in the Superior
Court action implicated a jurisdictional inquiry into the
existence of an employer-employee relationship. See N.J.S.A.
34:15-8. The defense advanced in the workers' compensation
action assumed the existence of an employer-employee
relationship, but implicated the question of the scope of
employment. See Wunschel v. Jersey City, 208 N.J. Super. 234,
238 (App. Div.), certif. denied, 104 N.J. 417 (1986).
8 A-5053-12T4
Nor does invoking the "going and coming" and "on call"
rules, addressed in Sabat v. Fedder Corp., 75 N.J. 444 (1978)
and Mule v. New Jersey Manufacturers Co., 356 N.J. Super. 389
(App. Div. 2003), which, plaintiff references, raise factual
questions sufficient to have defeated summary judgment. Sabat
and Mule involved commuters and accidents occurring leaving or
arriving at work, triggering the analyses under the "going and
coming" and "on call" rules. Sabat, supra, 75 N.J. at 445;
Mule, supra, 356 N.J. Super. at 395-96. Those rules do not
apply in this record, as a matter of law.
A different line of cases applies to employees residing on
their employers' premises. Generally, injuries may be
compensable if the "activity leading to the injury was
reasonably incident to the employment." Doe v. St. Michael's
Med. Ctr., 184 N.J. Super. 1, 5 (App. Div. 1982) (citations and
internal quotation marks omitted). "'Residence quarters
provided for employees by the employer are . . . a part of the
locus of employment and an injury sustained by an employee while
using such residence facility properly, reasonably and in a
manner contemplated by the employer is reasonably incidental to
the employment and compensable.'" Id. at 6 (quoting Barbarise
v. Overlook Hosp. Ass'n, 88 N.J. Super. 253, 261 (Cnty. Ct.
1965)).
9 A-5053-12T4
In Doe, the plaintiff, a medical technologist, sustained
injuries as a result of a sexual attack and robbery that
transpired in her room, located in the defendant hospital's
dormitory. Id. at 4. The trial court dismissed her complaint
and then we affirmed in part, modifying the order to ensure
transfer to the Division. Id. at 4-5, 9. We described the
"bunkhouse rule," which mandates compensability for injuries
obtained "when the employee is required to live on the portion
of the employer's premises where the accident happens." Id. at
6.
We stated that the outcome is less clear where residency on
the premises is not required, but cited with approval an earlier
lower court decision in Barbarise, supra, 88 N.J. Super. at 253.
There, the court confronted a similar issue of "whether a
practical nurse, residing by personal choice in a residence
provided by the hospital-employer[,] but not required to do so,
[was] entitled to compensation for injuries sustained in a fall
on a stairway in the residence at a time when she was not on
duty or on call." Id. at 254. The court described the "mutual
benefit doctrine," under which injuries are compensable when
sustained during a recreational activity beneficial to employer
and employee. Id. at 259. By analogy, the court applied this
principle, to residential facilities furnished to a plaintiff.
10 A-5053-12T4
Id. at 258. The court found the residential facilities were
"mutually beneficial," allowing for immediate availability of
the plaintiff's service if required and "provid[ing] the
additional 'clear and substantial benefit' of rendering
employment by the hospital more attractive . . . and in
promoting employee morale and good will." Id. at 261.
With this precedent in mind, the circumstances of
plaintiff's residency on the club's property support the entry
of summary judgment as a matter of law. Like Doe and Barbarise,
plaintiff was injured in a living space provided by CGC and on
its property. Also, plaintiff was not required to live there,
but his full-time presence on the club's property was of mutual
benefit to plaintiff and CGC alike. Ibid. He paid no rent or
utilities, except cable. During his deposition, plaintiff
testified he was on call constantly, virtually seven days a
week. Thus, his residency on the premises facilitated his
continued employment while reducing his living expenses. That
the lodging was meant to make the prospect of employment at the
club more attractive is supported by the written offer of
employment, which featured this benefit.
Given the prominence of the "manager's quarters" in
plaintiff's employment package, the accident, despite occurring
in the early morning hours and in the second-floor bathroom of
11 A-5053-12T4
his residence rather than, for example, on the greens, was
nevertheless within the scope of his employment and therefore
compensable. Contrary to plaintiff's assertion, there was no
"real issue" of fact underlying this determination such that
defendants were not entitled to summary judgment as a matter of
law.
Likewise, plaintiff's argument that defendants waived
assertion of the workers' compensation bar because it was never
pled nor raised until defendants moved for summary judgment is
without merit. Subject matter jurisdiction, as the Act's
exclusivity provisions implicate, is a non-waivable defense,
which can be raised at any time. Marcysyn v. Hensler, 329 N.J.
Super. 476, 481 (App. Div. 2000). Morris v. Krauszer's Food
Stores, Inc., 300 N.J. Super. 529 (1997) is inapposite, as the
issue of the workers' compensation bar to the plaintiff's
recovery there was asserted by the defendant corporation, which
was not legally entitled to assert the defense. Id. at 539.
Turning to plaintiff's substantive argument that a
genuinely disputed issue of material fact existed as to whether
he was an employee of CGC, the record supports Judge Innes's
determination otherwise. "Our jurisdiction allows an employee,
for the purpose of workers' compensation to have two employers,
both of whom may be liable in compensation." Antheunisse v.
12 A-5053-12T4
Tiffany & Co., Inc., 229 N.J. Super. 399, 402 (App. Div. 1988),
certif. denied, 115 N.J. 59 (1989). "However, recovery against
one bars the employee from maintaining a tort action against the
other for the same injury." Ibid. (citing Blessing v. T.
Shriver and Co., 94 N.J. Super. 426, 429-30 (App. Div. 1967)).
Whether a tort action is barred is of course "dependent upon a
determination that the borrower of an employee is, in fact, a
special employer." Blessing, supra, 94 N.J. Super. at 430.
In Blessing, we adopted Professor Larson's three-part test
for assessing whether a special employee relationship has
formed:
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.
[Id. at 430 (quoting 1A Larson Workmen's
Compensation (1966), § 48.00 p. 710).]
13 A-5053-12T4
We also acknowledged input from federal authorities holding the
"'ultimate test is: Whose is the work being done?'" Id. at 431
(quoting Jones v. George F. Getty Oil Co., 92 F.2d 255, 263 (10
Cir. 1937), cert. denied sub nom., Associated Indemnity Corp v.
George F. Getty Oil Co., 303 U.S. 644, 58 S. Ct. 644, 82 L. Ed.
1106 (1938)). We added two other co-equal factors for
consideration, recognized by other authorities, "namely, whether
the special employer (1) pays the lent employee's wages, and (2)
has the power to hire, discharge or recall the employee." Id.
at 430 (citing 3 Schneider, Workmen's Compensation (3d ed. 1943),
§ 782(c), pp. 19-21; 99 C.J.S. Workmen's Compensation § 47(c)(3,
4), pp. 249-250; Thomas v. Hycon, Inc., 244 F. Supp 151, 155-56
(D.D.C. 1965); Restatement Agency 2d, § 227 (1958)).
Subsequently in Volb v. G.E. Capital Corp., 139 N.J. 110
(1995), the Court expressed its approval of our adoption of the
Larson test, as well as two additional factors, particularly
noting that "the most important factor in determining a special
employee's status is whether the borrowing employer had the
right to control the special employee's work[.]" Id. at 116.
In Kelly v. Geriatric and Medical Services, Inc., 287 N.J.
Super. 567 (App. Div.), aff'd, 147 N.J. 42 (1996), we considered
all five factors in upholding the trial court's dismissal of the
plaintiff's complaint on the basis that in addition to being an
14 A-5053-12T4
employee of a temporary nursing services provider, she was also
a special employee of the convalescent center where she had been
assigned and where she sustained a work-related injury. Id. at
578. We stated, however, the five-factor test does not provide
the exclusive legal criteria by which to "establish a special
employer-special employee relationship[.]" Id. at 571.
Plaintiff argues "no express contract of employment existed
between plaintiff and either [CGC] or [BCGM]." Specifically, he
argues the offer letter was not a "written contract of
employment." And, further, the signed version in the record was
not properly authenticated. In response, defendants urge the
letter reflects the material terms of his employment agreement
verified by subsequent performance.
"In reviewing a trial court's evidential ruling, an
appellate court is limited to examining the decision for abuse
of discretion." Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008); see
also Konop v. Rosen, 425 N.J. Super. 391, 401 (App. Div. 2012)
("The latitude initially afforded to the trial court in making a
decision of the admissibility of evidence -- one that is
entrusted to the exercise of sound discretion -- requires that
appellate review, in equal measures, generally sustain that
decision, provided it is supported by credible evidence in the
record." (quoting Estate of Hanges v. Metro Prop. & Cas. Ins.
15 A-5053-12T4
Co., 202 N.J. 369, 384 (2010))). Under this standard, "an
appellate court should not substitute its own judgment for that
of the trial court, unless the trial court's ruling was so wide
of the mark that a manifest denial of justice resulted." State
v. Brown, 170 N.J. 138, 147 (2001) (citations and internal
quotation marks omitted).
Here, there is adequate evidence to support the trial
court's finding that "a written contract [existed] between the
parties." At his deposition, plaintiff acknowledged there was a
signed agreement. When shown the offer letter, plaintiff stated
he signed "something similar." The offer letter reflects the
material terms of an employment agreement, including
compensation of $1,730.11 bi-weekly and the provision of housing
on the premises in exchange for plaintiff's services as
superintendent. During his deposition, plaintiff acknowledged
these were the terms of his employment and he does not dispute
the same on appeal. The offer letter invited plaintiff "to
indicate [his] understanding and acceptance of this offer by
signing and returning one copy of this letter no later than
Wednesday, March 5, 2008[.]" Although the offer letter bore the
BCGM logo, Suozzo, in her capacity as general manager of CGC,
specifically made the offer "[o]n behalf of CGC" and expressed
16 A-5053-12T4
excitement about the proposition of "[p]laintiff joining [the]
team at [BCGM] and [CGC]."
It is undisputed that, in accordance with the terms of the
offer letter, CGC paid plaintiff's salary. BCGM provided
plaintiff's benefits. Thus, although the signed version of the
offer letter in the record was not authenticated by plaintiff or
Suozzo at the time of their respective depositions, the parties
do not dispute the authenticity of the executed letter
subsequently provided after the close of discovery and
considered by the court during the summary judgment argument. 2
Given (1) the absence of any dispute over the signed letter's
authenticity, and (2) the fact that the letter was originally
given to plaintiff by defendants long ago at the time he began
his employment, we find no impropriety in the trial court
considering the letter, even though a fully executed copy of it
was not located until after the discovery period ended. There
was no need for defendants in these particular circumstances to
amend their answers to interrogatories pursuant to Rule 4:17-7
2
Plaintiff's counsel, during oral argument before the motion
judge, initially disputed that the signed letter and unsigned
letter were exactly the same. When asked to present his
argument to support this contention, counsel instead argued
defendants had waived the dual employer argument, and identified
to the court no discrepancies between the signed and unsigned
versions of the letter.
17 A-5053-12T4
in order for the motion judge to consider the letter as part of
his analysis of the substantive issues.
Addressing the elements of the special relationship,
contrary to plaintiff's assertion that CGC did not "control[]
the details of [plaintiff's] work," the record establishes CGC
exercised significant control and supervision over plaintiff.
Pursuant to the offer letter, plaintiff was to "report directly
to [Suozzo] on a day-to-day basis." At her deposition, Suozzo
described her role as "general manager for the entire property,"
and noted that among her other duties, she had "hands-on
responsibility with regard to the day-to-day operation and
maintenance of the golf course." Elaborating on the extent of
her control over the details of plaintiff's work, Suozzo
testified she routinely met with the superintendents, checked
the course conditions, walked the property, managed the pace of
play on the course, and ensured "[her] staff [was] doing what
[her] staff [was] supposed to be doing." These facts support
Judge Innes's finding that "Suozzo . . . provided direction to
plaintiff and that [she] had the right to control plaintiff on
how to perform the assigned tasks."
That the scope of Suozzo's authority at the course was
pervasive and extended beyond management of the clubhouse is
further evidenced by plaintiff's deposition. In plaintiff's
18 A-5053-12T4
testimony, he noted Suozzo's status as "general manager."
Significantly, he explained that if the "manager's quarters"
required any repair or maintenance, he contacted Suozzo, who
arranged for such issues to be resolved. Thus, plaintiff's
attempt to relegate Suozzo's role to that of "the bar and
restaurant manager" is simply unsupported by the record.
Plaintiff asserts Suozzo did not direct his work because
preparation and maintenance of the course was within his
expertise and not Suozzo's. However, "the actual exercise of
control is not as determinative as the right of control itself,
because, in many instances, the expertise of an employee
precludes an employer from giving him [or her] any effective
direction concerning the method he [or she] selects in carrying
out his [or her] duties." Kelly, supra, 287 N.J. Super. at 575-
76 (citations and internal quotation marks omitted).
Plaintiff urges the record establishes that Matt Fauerbach,
BCGM's regional manager, who was not employed by CGC, was the
person who actually supervised him. He contends further that it
was Fauerbach who had the expertise in agronomy which was
comparable to or surpassed his own knowledge. However,
Fauerbach, in his capacity as "regional manager," only met with
plaintiff on a monthly basis. It was Suozzo, a CGC employee,
who supervised plaintiff and the course's operations, including
19 A-5053-12T4
maintenance of the golf course, on a daily basis. Consequently,
the trial court properly found that CGC "ha[d] the right to
control the details of [plaintiff's] work[.]" Id. at 572.
Significantly, plaintiff's work maintaining the golf course
was integral to the successful operation of CGC as a country
club. Indeed, the proper execution of plaintiff's
responsibilities as superintendent were so essential he resided
on the premises to ensure he was readily available to address
course maintenance issues as they arose. Such on-site residency
and demanding work hours further support a finding CGC exercised
significant control and supervision over plaintiff. These
circumstances support Judge Innes's findings under the second
prong that "the work being done by the employee [was]
essentially that of the special employer[.]" Id. at 571.
Plaintiff's argument that there is no evidence in the
record CGC "ha[d] the power to hire, discharge, or recall
[plaintiff,]" is without merit. Suozzo, acting in her capacity
as general manager of CGC, specifically extended to plaintiff an
offer to join the "team at [BCGM] and [CGC]." The letter
further expressed that CGC "may terminate the working
relationship at any time, with or without cause."
Because we conclude plaintiff was a special employee of
CGC, we need not address plaintiff's argument the trial court
20 A-5053-12T4
erred in finding a joint venture relationship existed between
BCGM and CGC. Such a relationship is not a condition precedent
to establishing a special employee relationship where other
factors, such as those we conclude Judge Innes properly
determined existed here, have been satisfied.
Finally, plaintiff's argument that the trial court
improperly transferred the matter to the Division of Workers'
Compensation is without sufficient merit to warrant discussion
in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
21 A-5053-12T4