NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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,

(App.

Div.), certif. denied,

(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.,

(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.,

(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,

(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.,

(App. Div. 2000) (quoting Ryan Operations G.P.

v. Santiam-Midwest Lumber Co.,

(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,

(App.

Div. 2000), certif. denied,

(2001).

However, "[t]o be estopped a party must have convinced the

court to accept its position in the earlier litigation." Ali v.

Rutgers,

(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."

.

Plaintiff's reliance upon Cummings v. Bahr,

(App. Div. 1996), is misplaced. First, Cummings involved

multiple contradictory arguments raised in different hearings in

the same personal injury action.

. 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.

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."

. 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,

(App. Div.), certif. denied,

(1986).

8 A-5053-12T4 Nor does invoking the "going and coming" and "on call"

rules, addressed in Sabat v. Fedder Corp.,

(1978)

and Mule v. New Jersey Manufacturers Co.,

(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.

;

. 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.,

(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.'"

at 6 (quoting Barbarise

v. Overlook Hosp. Ass'n,

(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

.

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."

. The court described the "mutual

benefit doctrine," under which injuries are compensable when

sustained during a recreational activity beneficial to employer

and employee.

. By analogy, the court applied this

principle, to residential facilities furnished to a plaintiff.

10 A-5053-12T4

. 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."

.

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.

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,

(App. Div. 2000). Morris v. Krauszer's Food

Stores, Inc.,

(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.

.

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.,

(App. Div. 1988),

certif. denied,

(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.,

(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."

.

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.,

(10

Cir. 1937), cert. denied sub nom., Associated Indemnity Corp v.

George F. Getty Oil Co.,

,

,

(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."

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.,

(D.D.C. 1965); Restatement Agency 2d, § 227 (1958)).

Subsequently in Volb v. G.E. Capital Corp.,

(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[.]"

.

In Kelly v. Geriatric and Medical Services, Inc.,

(App. Div.), aff'd,

(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,

(2008); see

also Konop v. Rosen,

(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.,

(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,

(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,

-

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[.]"

.

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[.]"

.

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