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NJSEA Teamster Truck Driver Found Not To Be Special Employee Of Exhibitors At Izod Center

By on May 31, 2019 in Policy with 0 Comments

A cardinal rule in workers’ compensation is that an employee cannot sue his or her employer in civil court for a work injury except for rare circumstances involving intentional harm.   But what if the employee has two employers?  Does that rule apply to both employers?  The answer is yes, the rule applies to both employers, so the focus in many cases is on whether there really is an employer relationship to begin with.  The case of Carabello v. Jackson Dawson Communications, Inc. and Transcend Creative Group, LLC, A-3294-17T3 (App. Div. March 26, 2019) provides some helpful insight on the requirements to establish “the second employer.”

Mr. Carabello worked for the New Jersey Sports and Exposition Authority as a teamster truck driver. The NJSEA contracted with Transcend and Jackson Dawson for a Mercedes Benz event at the Izod Center which the NJSEA owned.  Carabello was the only forklift operator at the Izod Center during the event.  NJSEA assigned him to operate the forklift to unload the trucks of Transcend and Jackson Dawson Communications.  Carabello was told to report to Jackson’s head man for further instructions in securing the tent structure for Transcend and Jackson. 

The head man for Jackson instructed Carabello to transport barrels filled with water using the forklift.  Carabello proposed that it might be wiser to transport the barrels while they were empty but that suggestion was not followed.  While loading the filled barrels on the forklift, two barrels fell off.  As Carabello moved the last of sixteen barrels off the forklift, he felt a pop in his shoulder.  His injury was promptly reported to the NJSEA, and the NJSEA paid workers’ compensation benefits.

Carabello then attempted to sue Transcend and Jackson Dawson for negligence in a third party action.  Jackson and Transcend argued in essence that Carabello could not bring a civil suit against them because he was their “special employee.”  The trial judge agreed and barred the civil suit, leading to an appeal by Carabello.  In his appeal, Carabello argued that the five-pronged test of a special employee did not apply to his situation.

First, he argued that there was no express contract between Carabello and Transcend and Jackson.  Second, he argued that he was doing the work of the NJSEA.  It was on NJSEA property.   The Appellate Division agreed with Carabello on both of these points.

Next, Carabello argued that his work was not controlled by Jackson and Transcend.  The Appellate Division said this point was unclear.  NJSEA told Carabello to use the forklift to help the exhibitors set up the event.  Jackson and Transcend told him to move the filled water barrels to help secure their tent.  On balance, the Court felt that NJSEA really controlled the work.  “Plaintiff testified the scope of his employment for NJSEA included helping production personnel with event setup, which involved operating the forklift and assisting others during the production process.”

Fourth, Carabello argued that he was paid by NJSEA.  The Court noted that Transcend and Jackson paid a fee for operation of the forklift, but they did not pay Carabello’s salary. 

Lastly, Carabello argued that he could not be fired by any entity other than the NJSEA.  The Court agreed that the license to produce the exhibition at the Izod center did not provide Jackson and Transcend with the authority to hire or fire Carabello. 

For these reasons, the Appellate Division reversed and allowed Carabello to sue Jackson and Transcend in a civil suit for their alleged negligence in contributing to his shoulder injury.  One key distinction between this case and other special employee cases involving assigned nurses is that Carabello was working on NJSEA property when he was injured.  In many of the nursing cases where special employment status is found, the nurses work on hospital property under direct control of the hospital.

Thanks to Rick Rubenstein, Esq. for bringing this case to our attention.



About the Author

About the Author:

John H. Geaney, a shareholder and co-chair of Capehart Scatchard's Workers' Compensation department, began an email newsletter entitled Currents in Workers’ Compensation, ADA and FMLA in 2001 in order to keep clients and readers informed on leading developments in these three areas of law. Since that time he has written over 500 newsletter updates.

Mr. Geaney is the author of Geaney’s New Jersey Workers’ Compensation Manual for Practitioners, Adjusters & Employers. The manual is distributed by the New Jersey Institute for Continuing Legal Education (NJICLE). He also authored an ADA and FMLA manual as distributed by NJICLE. If you are interested in purchasing the manual, please contact NJICLE at 732-214-8500 or visit their website at www.njicle.com.

Mr. Geaney represents employers in the defense of workers’ compensation, ADA and FMLA matters. He is a Fellow of the College of Workers’ Compensation Lawyers of the American Bar Association and is certified by the Supreme Court of New Jersey as a workers’ compensation law attorney. He is one of two firm representatives to the National Workers’ Compensation Defense Network. He has served on the Executive Committee of Capehart Scatchard for over ten (10) years.

A graduate of Holy Cross College summa cum laude, Mr. Geaney obtained his law degree from Boston College Law School. He has been named a “Super Lawyer” by his peers and Law and Politics. He serves as Vice President of the Friends of MEND, the fundraising arm of a local charitable organization devoted to promoting affordable housing.

Capehart Scatchard is a full service law firm with offices in Mt. Laurel and Trenton, New Jersey. The firm represents employers and businesses in a wide variety of areas, including workers’ compensation, civil litigation, labor, environmental, business, estates and governmental affairs.


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