Some cases have more twists and turns than a roller coaster. The case of Dutcher v. Stathis & Leonardis, LLC, No. A-3135-23 (App. Div. October 23, 2025) is one such case, dating back to an injury on November 3, 2014 and including two Appellate Division decisions eight years apart centered on whether there was special or dual employment.
The plaintiff, John Dutcher, was a full-time police officer for the Woodbridge Police Department in 2014. Black Rock Enterprises had a contract with Middlesex County for milling services on county roads, including certain roads in Woodbridge Township. Black Rock contacted the Township of Woodbridge Police Department for permission to hire police officers for traffic control while its workers performed a road milling project in town. The Township assigned two police officers to this extra duty job on November 3, 2014. The Township got paid by Black Rock for the work done by the extra-duty police officers, including Officer Dutcher. The officers got paid by the Township.
On the date of the accident, Officer Dutcher and a colleague were directing traffic at a specific intersection of Woodbridge Center Drive and Plaza Drive. Dutcher was working traffic duty when a Black Rock employee operating a construction vehicle struck him from behind, causing serious injuries that eventually led Officer Dutcher to retire from employment. Dutcher received workers’ compensation benefits. Officer Dutcher also attempted to sue Black Rock for negligence.
Black Rock filed a motion for summary judgment to dismiss the officer’s civil lawsuit. Black Rock argued that Dutcher was a special employee of the company and therefore could not sue. The trial judge ruled on the motion for summary judgement in favor of Black Rock and barred the civil lawsuit. Dutcher appealed. The Appellate Division affirmed the decision of the trial judge in Dutcher v. Pedro Pedeiro and Black Rock Enterprises, LLC, No. A-1088-16T3 (App. Div. Nov. 22, 2017).
The next twist in the case occurred in 2020 when Officer Dutcher sued the law firm that represented him in the civil action. He argued that the law firm was negligent in representing him by failing to oppose Black Rock’s summary judgment motion. He further argued that he was not a special employee of Black Rock and that the motion to dismiss should have been vigorously opposed.
Testimony of various witnesses occurred in the legal malpractice action against the law firm. There was testimony from Officer Dutcher and another colleague that the officers directed all the traffic at the scene of the injury independent of Black Rock. They testified that Black Rock had nothing to do with the traffic control and their job on the scene. The defendant law firm filed a motion for summary judgment, and the trial judge ruled in favor of the law firm. The judge held that Dutcher was a “dual employee” of Black Rock and the Township. Therefore, there was no legal malpractice committed by his law firm. The trial judge referenced a similar extra duty case in Domanoski v. Borough of Fanwood, 237 N.J. Super. 452, 456 (App. Div. 1989) where dual employment had been found.
Dutcher again appealed to the Appellate Division. An initial argument on appeal was whether the Appellate Division was bound by the decision of the prior Appellate Division decision in 2017. The Court said that it was not bound because there was substantial testimony of witnesses in the legal malpractice case after the 2017 decision which had not been available at the time of the 2017 decision on Black Rock’s motion for summary judgment. The Court stated that the prior Appellate panel’s decision in 2017 had been limited to “the undisputed facts on the motion record, deemed admitted by virtue of [the party’s] non-response.” The Appellate Division in the October 23, 2025 decision focused more heavily on the clear separation of duties between Officer Dutcher and his fellow officer and the work duties of the Black Rock employees. The Court said that Officer Dutcher’s duties at Black Rock on the day of the assignment were traffic control. Black Rock’s duties were limited to milling the roadway. “The nature of Black Rock’s work is heavy highway road construction – not police functions.”
The Court added that Black Rock did not control the work plaintiff was doing at the time of his injury. “Plaintiff was trained in traffic control and direction and was utilizing his training to control traffic for the public’s safety while Black Rock did its work. Black Rock could not hire or fire plaintiff directly. Black Rock paid the Township, not plaintiff, and Woodbridge Police Department paid the extra duty officers even if Black Rock failed to pay its invoice. Thus, under the totality of the circumstances presented here, plaintiff was not a special employee of Black Rock.” The result of this decision was to reinstate plaintiff’s legal malpractice case, meaning Officer Dutcher is not barred from suing the law firm that represented him.
Can one reconcile the analysis of employment in the 2017 decision with the analysis of employment in the 2025 decision? To some degree, yes. As noted above, the October 23, 2025 appellate decision referenced a great deal of testimony that was not available to the appellate panel in 2017. But if one looks carefully at the two Appellate Division decisions in this case, separated by eight years, there is a notable difference. Each panel focused on a different legal test. The 2017 appellate panel focused more on the “whose interests are served” test. That test considers which entity or entities benefit from the work being done. Did both Black Rock employees and the public benefit from the work Officer Dutcher and his colleague performed? The 2017 panel said yes, while the 2025 appellate panel did not address that test at all. It focused more on the complete separation of control and duties. Officer Dutcher and his colleague operated independently with respect to traffic safety, and Black Rock employees operated independently with respect to road work. The two panels came at the legal problem from a different angle.
The Domanoski case cited above focused mostly on the “whose interests are served” test in finding dual employment. The officer in that case was injured performing security work in a supermarket on extra duty approved by the Borough. The court ruled that the officer was a dual employee of the supermarket and the township when he was injured because the injured worker was furthering the interests of both the public generally and the store itself. The trial judge in the legal malpractice case in Dutcher also referenced the “whose interests are served” test in granting summary judgment to the law firm.
On appeal, the 2025 appellate panel in Dutcher did not mention the “whose interests are served” test outlined in Domanoski. It addressed the legal test outlined in an older case, Blessing v. T. Shriver & Co., 94 N.J. Super. 426 (App. Div. 1967), which employed a five factor special employee matrix:
- The employee has made a contract of hire, express or implied, with the special employer;
- The work being done by the employee is essentially that of the special employer;
- The special employer has the right to control the details of the work;
- The special employer pays the employee’s wages; and
- The special employer has the power to hire, discharge or recall the employee.
Sometimes a court can use both of these tests and arrive at the same result. Consider the unreported Appellate Division case of Peterson v. Borough of Alpine and Bell Atlantic, No. A-5205-99T1, (App. Div. June 20, 2001). In that case the petitioner, a police officer, was injured directing traffic at the request of Bell Atlantic. The Bell Atlantic linemen were stringing lines along a sinuous Bergen County road. A witness for Bell Atlantic admitted that the company had the option of using a flagman for the job, but he stated that a flagman would not command as much respect as a uniformed police officer in directing traffic safely. So, Bell Atlantic requested that the township provide a police officer, who was struck by a vehicle while directing traffic. The Court found in favor of dual employment, holding that the seriously injured police officer was both an employee of the Borough and Bell Atlantic. The Appellate Division in Peterson referred to both legal tests in Blessing and Domanoski in finding dual employment and assessed the workers’ compensation costs equally on Bell Atlantic and the Borough.
In this practitioner’s opinion, using the “whose interests are being served” test will likely lead to more joint employment findings than the older, five-part special employment test set forth in Blessing. Each of these two legal tests has its own proponents and critics. In venturing into the legal quagmire of special, dual and joint employment, practitioners and employers must understand that New Jersey courts are currently using different legal analyses to resolve employment issues. One is an older, more traditional approach, seen more in civil actions (Blessing), and the other is a more modern, pragmatic test seen more in workers’ compensation cases (whose interests are being served). The Supreme Court will eventually provide much needed guidance.
