By: Ruhani Aulakh, Law Clerk
Editor: Betsy G. Ramos, Esq.
Plaintiff Philip Pantano, an employee of Container Services of New Jersey (“CSNJ”), was moving a piece of heavy equipment at work. Lawrence Giamella was also working that day and used a forklift to help move the equipment. Giamella dropped the equipment on the plaintiff’s foot, causing permanent damage that led to amputation of the plaintiff’s foot. The plaintiff brought a personal injury action against CSNJ and Marine Transport, Inc. (MT), both of which are owned by the same person. The dispute in Pantano v. New York Shipping Ass’n, 2023 N.J. LEXIS 597 (June 5, 2023) was whether the question of an employer’s vicarious liability under the borrowed-employee doctrine is a question of law to be decided by the court or a question of fact reserved for the jury.
At the trial court level, the court dismissed the claims against all defendants except for CSNJ, MT, and the companies’ landlords. The remaining defendants all sought summary judgment, with the court granting both the landlord and CSNJ’s motions. In its motion for summary judgment, MT argued that it was not Giamella’s employer and thus not vicariously liable for his negligence. MT argued that although Giamella was on its payroll, Giamella was a “borrowed employee” working for CSNJ at the time of the accident.
At the jury trial, MT moved for judgment at trial pursuant to R. 4:40-1 on the same “borrowed employee” theory it had raised in its motion for summary judgment. The trial judge reserved judgment on the motion until after the jury verdict and instructed the jury to presume that MT was vicariously liable, as counsel assented to have the court resolve the borrowed-employee argument. The jury awarded plaintiff damages for pain and suffering, lost wages, and loss of consortium. Outside of the jury’s presence, the trial judge determined that Giamella was a borrowed employee working for CSNJ and vacated the jury verdict.
Plaintiff appealed the trial court’s decision. The Appellate Division reversed the trial court and reinstated the jury verdict. The Appellate Division emphasized that the trial judge erred in reaching a conclusion on the merits of the borrowed-employee question. Because MT moved for judgment at trial, the judge should have performed a directed verdict analysis in accordance with R. 4:40-1’s requirements. The Appellate Division applied the directed verdict standard and determined there was substantial evidence to satisfy the plaintiff’s burden under R. 4:40-1.
MT filed a petition for certification to the New Jersey Supreme Court, largely arguing that the borrowed employee question is a purely legal one that should not be decided by a jury. MT also argued that the Court should not consider how a jury may weigh the factors for borrowed employee determination which the Court set forth in Galvao v. G.R. Robert Const. Co., 179 N.J. 462 (2004). Rather, the court should decide the issue on a plenary basis.
The Court granted certification solely on the issue of whether an employer’s vicarious liability under the borrowed-employee doctrine was one to be reserved for the jury. In making its determination, the Court went through several cases that addressed the borrowed-employee doctrine. Cases dating back to almost a century ago had ruled that a jury rather than a judge was who properly decided the borrowed-employee question. Since then, the New Jersey courts have consistently held that the borrowed-employee question is presumptively a jury question. The Court reasoned that although Galvao did not explicitly address the jury’s role in borrowed-employee disputes, nothing in the case changed the traditional allocation of the jury’s role in such disputes.
The Court did note, however, that not all disputes over borrowed-employee status must be sent to the jury. Specifically, where the evidence is so one-sided that there are no genuine disputed facts, the court may decide the issue without a jury.
After completing an analysis of the case history, the Court returned to the dispute at hand. The Court agreed with the Appellate Division that the evidence was not sufficiently one-sided that the issue may be decided without a jury. While the Court would typically remand the issue so it may be presented to the jury to resolve, the Court took the parties’ agreement into consideration. The parties emphasized that they did not desire a remand; rather, they would accept a reinstatement of the jury’s verdict.
As such, the Court affirmed the Appellate Division’s decision. The Court reinstated the jury’s verdict and held MT vicariously liable for the damages award.
