Associate Justices, may it please the Court, Mr. Chief justice, may
I just reserve a minute or 2 for rebuttal. THE COURT: Yes.
MR. MINTER: Thank you. On behalf of my client, I come before the Court today
requesting reversal of the Appellate Division's order and reinstatement
of the order of dismissal that was entered by the trial court in May of 2020.
I recognize that the court has before it substantial briefing so in addition
to answering any questions that the court may have, I'd like during my presentation
ZUFT to highlight 3 points if I could. First point that I'd like to
highlight is the manner in which the borrowed servant doctrine issued here was
addressed at the trial level was the product of an explicit agreement amongst
all parties, the plaintiffs, my clients, and ultimately the Court. This is
a fact that simply undeniable and it was not until the case reached this court
that the plaintiffs for the first time argued that the borrowed servant
analysis should be 1 that's reserved for the jury. And quite frankly, that position
taken here brings about and implicates the invited error doctrine. That's
our first point. And our second point really guess to the
main point that we were granted certificate on which is how should this court
deal with the borrowed servant doctrine. Should it be determined as a matter of law
or should it be determined as a question of fact. And just as a pre
cursor to my comments, all the law that we had when we tried it case suggested
that it should be determined as a matter of law and we would ask that that
hold true going forward. However if this court determines to announce a new rule
on the issue we would ask and I will get into a little bit more of the detail
that the new rule be applied prospectively here rather than
retroactively. And finally, as a point of emphasis, at the end
of my presentation, I would also like to emphasize the points that go to the
fact that the trial judge here got it right when he examined the factors that
the gallon VA I don't court set forth when you do a borrowed servant
analysis. He analyzed control over both on spot and broad and he analyzed, although
he didn't have to get to the issue, he analyzed business furtherance
and got that right as well. So let me first talk about briefly the issue of the
fact that the way we handled this at trial in 2019 was definitively the
product of an agreement amongst all of us. Now, we quoted in our brief
at footnote 2, it is rather lengthy but we wanted the Court to have a real
context for the agreement and this was an agreement that all of us believed was
wait to handle the Barrowed servant issue and it's important to have the
context much the defense, my clients, we moved for summary judgement prior to
trial on the borrowed servant doctrine issue and the motion was denied based
on the presence of disputed issues of fact. So when we were called in
for trial, all parties, myself SHS excuse me, the defense, the plaintiffs agreed
or urged the Court I should say consider the borrowed servant doctrine
as a question of law that should be reserved for Court and we quote in our brief
and I just want to quote it here because I think it's important to the
invited error doctrine issue that the plaintiffs, plaintiff's counsel stated and
I will give you 2 quotes, I do believe it's a legal question that the end
of the evidence your Honor should make the Court should make. End quote.
Second quote, I think whether or not Mr. Gentleman mellow is a borrowed
employee at the time this accident occurs I I really think that under case
law is for your Honor to died. End quote. Now the defense completely
greed with that proposition. It was essentially a joint application to
be fair but THOIS were the words of plaintiff's counsel so we were surprised when
we submitted simultaneous briefs here that the only point in the plaintiff's
brief urged the Court to consider the borrowed servant issue as a question
of fact to be reserved for a jury. That's the polar opposite position of that
which was taken at the trial court level and quite frankly in this court's
pronouncements under the invited error doctrine they should be barred from taking
a position that's contrary to the -- polar opposite of the position
that they urged the Court to take at the trial level SAB. ��
of course a RIT it a trial with always be waived through pleadings or otherwise
so is it necessarily inconsistent for the plaintiff to say to us and
consistent with some older case that said it that generally this is a jury question
but you have the prerogative if you want to waive the jury to do so.
MR. MINTER: Justice, I think in the context of this case, this explicit, because
this is an unusual circumstance. There was an explicit agreement about how
to handle this and we explicitly, all of us greed that this was going to be carved
out and essentially be a bench trial on the issue of the borrowed servant
doctrine. THE COURT: Which means you wanted the judge to
make the call. MR. MINTER: All of us did, yes. THE
COURT: Okay. Help us understand why that needs our focus now because what we have
is a straightforward legal question that was presented that the court
granted and looking at the questions presented it is is vicarious liability under
the borrowed servant liability a question of law to be decided by the
law or a question of fact to be decided by the jury. That's the issue you framed.
MR. MINTER: Yes. THE COURT: And that's the only
issue that the court took. As to that line of cases, La rock KA, Yonkers
from the court of errors and on appeals they all say it's a question of fact.
Do you have country case law. MR. MINTER: Your Honor, yes,
on the issue of whether the Barrowed servant doctrine should be
determined as a question of the matter of law or a question of fact, I believe
first you look at -- first we look at G A L VA EO, and what we look at so if
you. THE COURT: Did G A L V EO address that issue.
MR. MINTER: G A L V EO did not say this was something to be determined
by a jury. No question. THE COURT: Did it overrule prior cases that
appear to have answered that question? MR. MINTER: Well
on the borrowed servant doctrine issue, Mr. Chief justice, I believe first of
all if you look at how G was treated it was a question of law all the
way through. There was summary judgement. Then there was the Appellate
Division decision that didn't make any real deference to those findings
but did a separate analysis and so did the Supreme Court.
ASSOCIATE JUSTICE RACHEL WAINER APTER: I have a question just because a case
is decided on summary judgement does not mean that that issue is always
a pure question of law of the right? So for example, you could have a negligence
case and negligence is typically a question of fact that is determined
by a jury but 1 party could request summary judgement saying something like viewing
all evidence in the light most favorable to the plaintiff and granting the
plaintiff all reasonable inferences there from there's no evidence from which
a reasonable jury could conclude that the jury was negligent. The case would
then be decided on summary judgement but that if mean that negligence
in general is a pure question of law. It just means that in that case there was
no evidence that the defendant was negligent. How is that different
from the case here? Are you arguing that a borrowed employee question is always
a pure question of law somehow like a question of statutory interpretation and
if so, why would you need a bench trial to determine it? Because a bench
trial is to determine questions of fact. It's to determine questions of fact
by the judge butity not to determine pure questions of law.
MR. MINTER: Well, clearly this is it wouldn't be accurate for me to argue that
this didn't involve mixed questions of fact and law. I want to try to
answer your question at the answer your question definitely try to answer the
chief's question about the precedent of the Weaver talking about the borrowed
servant doctrine so the present prior to G was V and was really look
at a worker's compensation case and was look at immunity and whether the general
employer would be entitled to the same immunity but it got into the
borrowed servant doctrine analysis by, really all it did was the V court did was
it remanded the borrowed servant doctrine issue to be determined prior to
trial. That was the words that came from this court. And V and G were
what we had as practitioners. THE COURT: Didn't V expressly say this
evidence raises a jury question? MR. MINTER: Well, but on
the issue of, your Honor, on the issue of my reading of V is that on the
issue of borrowed servant doctrine it indicated, and I this we quoted it here,
that that should be addressed to-to address that issue prior to trial and our
take away from that was that the borrowed servant doctrine issue on
respondent's superior was 1 that should be -- a determination to be made as a matter
of law so. THE COURT: Correct me if I am wrong and I may
have it wrong. MR. MINTER: Yes, sir. THE COURT:
Yonkers found that this question goes to the jury and V says, (Inaudible).
MR. MINTER: Our take away from V was it it reserved and again, informs
an interpretation that we would -- we can't argue this without looking at the
agreement that happened in this case. We all thought that it should be
a determination to be made as an as a matter of law. ASSOCIATE
JUSTICE RACHEL WAINER APTER: But you said you thought it should be determined
by a bench trial so that's not quite the same as a determination that's
a pure question of law, right? MR. MINTER: I agree. I agree. And
V sent it back for remand when there were mixed questions of fact and
law as well. But I think when we enter mingle the concept of what the agreement
was, if the Court wants to announce because G is silent, right, as to how the
determination should be made. Should it be a jury question? Should it
be determined as an as a matter of law? I don't think that the parties were complete
L off base to evaluate it and believe that it should have been determined
by the -- reserved for trial court. If this Court wants to clarify G further
and say hey, from now on we'll have a jury, a model jury charge on it or
from now on these factors that are set forth in G should be examined by a jury,
that's fine but what we would ask for today is prospective application of that
and I think we've set forth case law about why in fairness prospective
application is something that should occur here. Particularly because you just
simply can't ignore, first of all, you don't have G giving real instruction
to the bar about how it should be handled so you may be announcing, if you want
to go that route, you may be announcing a slightly new rule. THE
COURT: I hear what you're saying so what I'd like you to do is tell us is there
a case that expressly says this is a question of law, the borrowed
certify VAPT doctrine. MR. MINTER: No, and I don't think -- the
answer is no, your Honor. G I think tightened up -- tightened up V by describing
what the test is going to be now, and it relegated business furtherance to a
secondary aspect of it and we took as the procedural history of G, all
of us, plaintiff's counsel, defense counsel, and ultimately the court, believed
that based on the history of G that it should be determined as an as a
matter of law. JUDGE JACK M. SABATINO: Are you suggesting that
there's anything unworkable or problematic with the multi factor test and the
model jury charge that has been developed for the jury deciding under all
these factors if the person was under the control of the defendant and also,
the 1 who caused the consideration accident and, and whether it was in
furtherance of the business. I mean look at the various factors as a practitioner,
are you saying to us this is too complicated or challenging for a jury or that
we need a channel with some kind of verdict form what they do or are you
satisfied that it is workable? In this case, the deal that was made to have the
judge do it? MR. MINTER: I don't want to say I don't have
a horse in the race. Our view was it should continue to be determined as an as a
matter of law. But again, if the Court, if the Court wants to create a molds
jury charge that's specific to this doctrine and have the jury determine it,
I'm not saying I think that's too complicated for a your to figure out,
justice. I don't think it would be. THE COURT: Mr. Minter and I'm
sorry, to come back to the same question you said you think it's (Inaudible)
to continue to WOM back with a matter of law. And that's what I'm wrestling with.
Where is it state that had it should be treated as an as a matter of law
that you're asking us to continue. MR. MINTER: It's not. The parties
interpreted G. THE COURT: In had case we say you say we
want the judge to make the call. MR. MINTER: We did.
THE COURT: That's not essentially a legal analysis is it.
MR. MINTER: Well, I will say that when we urge, when we jointly urged the Court
to do that we thought we were correct. Our interpretation of G was it's
a determination to be made. ASSOCIATE JUSTICE FABIANA PIERRE-LOUIS:
So again, you're talking just specifically about this case. Are
you representing that in your experience it's the case that this question has been
answered by the judges as as a matter of law or are you just talk about what
happened in this case. MR. MINTER: I don't think I had any other
before rowed servant doctrine in this case, that I recall.
ASSOCIATE JUSTICE RACHEL WAINER APTER: That you wanted judge to determine
the question as a bench trial but in reality you ended upbringing a motion
under Rule 440-1 and doesn't that motion itself require the trial court to accept
quoting as true all the evidence which supports the position of the party
defending against the motion and according him the benefit of all inferences which
can roomily and legitimately be deduced there from. MR. MINTER:
That's clearly the case law. I don't think Rule 440 itself talks about inferences
but that's clearly, justice, you cited exactly what I believe the standard
is when you set out then. We styled this motion 440. There's no, I have to --
in all candor, that's how it was styled. There was no inferences raised
by the plaintiff in opposition to that motion ever at the trial level and.
ASSOCIATE JUSTICE RACHEL WAINER APTER: What does that mean inferences
raised? MR. MINTER: Yeah, I will tell you what it means.
The notion of inferences wasn't raised until we were in the Appellate Division
because we had. ASSOCIATE JUSTICE RACHEL WAINER APTER: You
mention that had they were entitled to all inferences being weighed in their
favor. MR. MINTER: Correct. They didn't argue in opposition
to the motion at any point during the trial or when we argued -- when we argued
before trial judge how the borrowed servant doctrine issue should be
determined by the -- there was no argument at the trial level that they would be
entitled to inferences. ASSOCIATE JUSTICE ANNE M. PATTERSON: On
summary judgement you took will he summary judgement standard, you look
at the facts in the manner most favorable to the nonmoving party, etc.,,
right. MR. MINTER: I agree. ASSOCIATE JUSTICE ANNE M.
PATTERSON: If you went to argue it I'm sure you argued probably hundreds of
summary judgement motions, you don't say to every judge, by the way, judge, we're
here on summary judgement. Therefore I am arguing that you must review the
facts and give the inferences to my client than (Inaudible) right.
MR. MINTER: I agree. ASSOCIATE JUSTICE ANNE M. PATTERSON: It
doesn't seem to be, if the rule has a particular standard, it doesn't seem
to be a waiver of any argument on their part to have not asserted that you
have to look at the facts with all the inferences being drawn in their favor.
MR. MINTER: Fair. I think it's, I think it's worth pointing
out that there was no attempt to -- we were dealing with uncontroverted facts
when it came to control, whether it was on spot or broad or business
furtherance much these were simple straightforward facts so I agree, justice I
agree with what you're saying. Of course you don't claim people waived it
during typical summary judgement but this was anything but typical. I understand
that this is unusual, but we were all, including the trial judge trying to work
through an issue that we didn't feel we had absolute clarity on how
it should be handled and the defense had made a motion for summary judgement
on the borrowed VAERNT and it had been denied because there were disputed
issues of fact that were found. JUDGE JACK M. SABATINO: Were you
concerned about having the jury make the call because of the atmospherics
of the case or fairness? Was there something STROO JEECH JIKcally about not
wanting the jury to make the decision? MR. MINTER: Truthfully,
to answer your Honor's question shall from defense perspective I was more
comfortable with the trial judge making this determination but, begin, this was
an absolute joint application and I quoted to you the words that came
right from the plaintiff's mouth but I wanted to answer also what justice Paterson
asked about these inferences. I can't height hide from the fact that we
called it a 440 motion, right. ASSOCIATE JUSTICE ANNE M. PATTERSON:
And I'm guessing because I've been there, there's sometimes when your
motion doesn't fit anywhere perfectly. MR. MINTER: There isn't an
appropriate thing to call what our motion was. But the inferences under
440 shall that's when you're trying to take something away from the jury. You're
looking for a really big home run here to end the case and take it away
from the jury. Here we all agree to take it away from the jury to begin with
so the appropriateness of applying inn presences I believe is gone. I can't hide
from the court that we styled it that and I can't deny what you said
justice about what the standard is. ASSOCIATE JUSTICE ANNE M. PATTERSON:
And I understand why you would do that because it's important to give
judges motions that they are generally familiar with but that 1 comes with some
baggage. MR. MINTER: Understood. We just didn't have
something to style it with and secondarily to the inferences because I would like
to talk about them because I was, I mean obviously surprise bid and unhappy
with the outcome in the Appellate Division but the facts that were central to
the borrowed servant analysis, pretty limited and pretty tight and they all
come ret at this much PR from Mr. Santomo's testimony and I I
personally whether inference WRZ entitled to be taken or not, if you look at the
inferences that the Appellate Division made and with all due respect I
think some of these inferences got completely spun, completely spun out of whole
cloth and if I could I'd just like to address a couple them just by way of
example if the Court would permit. The first 1 was when the Appellate Division
was doing their business furtherance analysis and I'm quoting here, they say
a reasonable inference from the record is that the arrangement under
which Giamella and other mechanics were hired by MT and thereafter loaned to
CS N.J. was financially beneficial to both companies. MT benefited by
having mechanics on the payroll who could perform services for MT at a lower
rate than if MT had purchased such services from CS N.J.. I'm almost done.
Moreover by ensuring a qualified number of mechanics on site, the arrangement
assisted in drawing commerce to the container depot. This is completely, an
inference and we set forth the law, has to be tethered to some base fact.
This is totally untethered from any fact in the record. The customers MT they
don't even come to the site. Marine, for the most part. Marine transport's
business is when a container arrives down in Newark. The container is shipped,
to take an example, A&P warehouse. They are the enter immediate YAD robbery I,
enter the freight carrier that makes that happen much the Appellate
Division is going through this while something described as an inference of things
that don't even happen. ASSOCIATE JUSTICE RACHEL WAINER APTER:
Well WOOBT be that based in part on MT's website which says we provide
repair services to many steamship lines within the port of New York well respected
dry and reFUSH mechanics can perform repairs, BOENG major and minor
so if doesn't sound like the Appellate Division was just maybing it up whole
cloth. It in fact it sounds like the Appellate Division was referring to
MT's website our season ILA reif your mechanics can perform repairs, both major
and minor. They were advertising that. MR. MINTER: So 2
points. No dispute that's what the website says. These 2 companies are -- they
have some common ownership, just like in G but they are separate companies.
There was. ASSOCIATE JUSTICE RACHEL WAINER APTER: They doesn't
hold themselves out (Inaudible). MR. MINTER: The website itself and
Mr. Santo know will testify to that RP. He didn't think container service
HZ a website, so yes, there is no question justice that when they created that
website it was inartful and it says what it says. There's no question.
But, when you're doing the G analysis and you're talking about what was Mr. Gentleman
mellow, a loan employee doing on the date the accident happened where
his agos were alleged to have caused, you know, damage to the plaintiff, what
does -- and I'm not (Inaudible) what you're asking but I'm saying retore
Rickcally what does the website have to do with it. Who controlled him on that
date. ASSOCIATE JUSTICE RACHEL WAINER APTER: So in terms
of Mr. Santomo controlling him, wasn't the evidence also that he didn't know
he was a CS N.J. employee. He was listed as the primary customer contact on
MT's website and he had an MT e-mail address. MR. MINTER: Yes, and
again he testified he was asked about that on cross and he testified I don't
think container services had a website. So his email address was (Inaudible)
there's no question about it but he also testified that he was an employee of
container services, that they are the ones that paid his salary and
that the work that Mr. Gentleman mellow was doing that he controls it on a day
-to-day basis, he controlled it on the day of the accident, and the only
company that reaped the benefit from the work that Mr. Joe mellow did was contain
er services but no question justice, that the website is, there's good facts and
bad facts in every case. That's not a God fact. If you're here standing
in my shoes making this argument so it says what it says but the testimony and
I would urge the court to focus on exactly what was happening on that
date and that evidence demonstrates that the control sat with cop takener services.
ASSOCIATE JUSTICE RACHEL WAINER APTER: What about the
evidence with Mr. The shop steward and an enter immediate yourry between Mr. Santomo
and the mechanic, what about the evidence that he is paid by both MT
and CS N.J. MR. MINTER: Again, what I would say about that
evidence is I talk about, I suggest the relevance of it. It's Mr. Joe medical
La. Listen these companies are co-owned. They exist on the same property.
ASSOCIATE JUSTICE RACHEL WAINER APTER: Who controls Mr. Giamella, right
so it's. MR. MINTER: That's Mr. Jury and between him and
Mr. Gentleman mellow are right. MR. MINTER: The testimony is direct
supervisor, the 1 who calls all the shots and the shots implicate Mr.
Geo mellow is Santomo. ASSOCIATE JUSTICE RACHEL WAINER APTER: It
seems like all of this are facts that as you mentioned might not be,
there might be facts, there might be contrary facts but it seems like all this
is fact that the Appellate Division could use and that they were not
creating things out of whole cloth. MR. MINTER: Okay. I believe they
made some credibility determination as in a court of original jurisdiction
that the trial court shove made. I believe that some of these inferences, I have
norm inference for you where the Appellate Division, they say to what
degree was Santomo acting as Joe mellow's shadow supervisor for MT as well as
his direct supervisor for his employer CS N.J.. That question was never asked
or answered. That said the inference is to be drawn in plaintiff's favor
a task we are bound to perform compels at that we view his testimony with some
skepticism considering the evidence. Well, he was asked and answered
that. And he testified that he was the supervisor for Joe mellow and Joe had no
corresponding supervisor at MT so and I'm saying this as respectfully as
I can about the inference that the Appellate Division (Inaudible) that's not
only grounded in any fact that's contrary. That's contrary to the evidence.
THE COURT: We're coming up on a half hour now.
MR. MINTER: That was quick. THE COURT: Is there anything else you
would like to add before we draw this part of the argument to close.
MR. MINTER: No. I hope that I have answered all of your questions.
THE COURT:^ thank you.