$861,000 Judgment Reinstated for a Port Newark Mechanic Whose Foot Was Crushed by an Untrained Forklift Operator

On November 19, 2013, Philip Pantano was working as a mechanic for Container Services of New Jersey at a six-acre container yard on Doremus Avenue in Newark, minutes from Port Newark. The yard was shared with Marine Transport, Inc., a trucking company under the same ownership. Pantano had knocked a genset, the heavy generator that powers a refrigerated shipping container, onto its side and needed help righting it. Lawrence Giamella, a refrigeration mechanic who was on Marine Transport's payroll but worked full time repairing gensets for Container Services, offered to lift it with a forklift.

Giamella looped a chain over the forks. When Pantano stepped back as asked, Giamella tilted the forks up and the chain slid off. The genset fell and landed on Pantano's left foot. Several surgeries failed, and the foot was amputated. Giamella had never been sent for forklift training, which federal OSHA rules at 29 C.F.R. 1910.178(l) require. Marine Transport sent him for that training only after the accident.

Pantano collected workers' compensation from Container Services, which barred any tort claim against his own employer. He and his wife Phyllis sued Marine Transport and others in Middlesex County (docket L-6659-15). Matthew A. Schiappa of Lomurro, Munson, Comer, Brown & Schottland tried the case and argued both appeals. Plaintiffs' expert testified that Marine Transport's failure to train Giamella violated the standard of care and contributed to the accident.

Marine Transport's defense was that Giamella, whatever payroll he was on, was a borrowed servant of Container Services, so that his negligence belonged to the immune employer and not to Marine Transport. A pretrial judge denied summary judgment on that theory in June 2018. After an initial mistrial, the case was tried to a jury over eight days in December 2019. At the close of plaintiffs' case Marine Transport moved for judgment on the borrowed-employee theory, and by agreement of counsel the judge reserved decision and let the jury decide the rest, with Marine Transport presumed liable for Giamella if the motion failed.

The jury found Giamella 70 percent negligent and Pantano 30 percent negligent, and awarded $1,230,000 for pain and suffering, lost wages, and Phyllis Pantano's loss of consortium. The judge molded the award to $861,000 under the Comparative Negligence Act. Then, in a May 15, 2020 order, he granted Marine Transport's motion, found that Giamella was in every practical sense a Container Services employee, and vacated the verdict.

The Appellate Division reversed on June 8, 2022. It held the trial judge had weighed the evidence rather than viewing it in the light most favorable to the plaintiffs, and that facts pointed both ways: Marine Transport paid Giamella without reimbursement, retained responsibility for his forklift training, and advertised on its website the very repair services he performed. The panel reinstated the jury verdict.

The New Jersey Supreme Court granted certification and, in a published opinion by Judge Sabatino on June 5, 2023, held that the borrowed-employee test under Galvao v. G.R. Robert Construction Co. is presumptively a jury question that a court may decide only when the evidence is one-sided. Because it was not one-sided here, the motion should have been denied. Both sides told the Court they did not want a new trial on the agency issue, so the Court affirmed, awarded final judgment to the plaintiffs, and remanded for entry of a judgment reinstating the verdict.