Pantano v. New York Shipping Association

In November 2013, plaintiff Philip Pantano, a mechanic employed by Container Services of New Jersey (CSNJ), was injured at work while attempting to move a heavy piece of industrial equipment. Lawrence Giamella, who was also working on the site that day, tried to help plaintiff move the equipment with a forklift; plaintiff’s foot was crushed in the process. Plaintiff collected workers’ compensation benefits from his employer, CSNJ. He and his wife also brought a personal injury action against numerous defendants, including Marine Transport, Inc. (MT). MT and CSNJ were related companies owned by the same person. The core of the parties’ dispute concerned which entity or entities employed Giamella at the time of the accident: MT, CSNJ, or both. The trial court granted summary judgment in favor of CSNJ because of the statutory bar established by N.J.S.A. 34:15-8. MT also moved for summary judgment, arguing that it was not Giamella’s employer and was therefore not vicariously liable for his negligence. Although Giamella was on MT’s payroll, MT raised the affirmative defense that he was a “borrowed servant” or “special employee” working for CSNJ at the time of the accident, applying the multi-factor test set forth in Galvao v. G.R. Robert Construction Co., 179 N.J. 462 (2004). The pretrial judge denied MT’s motion. At the close of plaintiff’s case, MT moved for judgment pursuant to Rule 4:40-1, founded on the same borrowed-employee theory it had raised earlier in its summary judgment motion. The trial judge did not rule on the motion, reserving judgment for after the jury verdict. The jury awarded plaintiff damages for pain and suffering, lost wages, and loss of consortium. Pursuant to an agreement reached by counsel, the jury was asked to presume that MT was vicariously liable and was not asked to resolve the borrowed-employee question. Instead, counsel assented to have the court resolve the borrowed-employee argument through the mechanism of MT’s yet-to-be-decided Rule 4:40-1 motion. The trial judge vacated the verdict and awarded judgment to MT, concluding that Giamella was a borrowed employee working for CSNJ when the accident occurred. The Appellate Division reversed, vacated the directed verdict, and reinstated the jury verdict in plaintiff’s favor. Finding no reversible error in the appellate court's judgment, the New Jersey Supreme Court affirmed.