Could Company that Borrowed Laborer who Tripped on Asphalt be Sued for Negligence?

What Do You Think?

The exclusivity rule protects employers from injured workers’ negligence lawsuits and from potentially large money judgments. But what if an employer assigns an employee to temporarily work for another company? Can the employee sue the second company if he’s injured?

A recent case involving a laborer answers that question. He tripped and fell on a piece of asphalt while excavating and sued the company supervising the work for negligence. Posillico was the company supervising his work.

At the time, the laborer’s actual employer was Morley Mechanical so he figured he could sue Posillico and not be barred by the exclusivity rule.

Prior to the injury, Posillico had entered into an agreement with Morley Mechanical, to use its laborers on the project. Under that agreement. Morley surrendered control over its workers and Posillico assumed supervision and control over the work of those laborers.

Posillico argued that the lawsuit was barred by the exclusivity rule.

The laborer argued that the rule did not apply because Morley paid his wages and Worker’s Compensation insurance.

A worker may be deemed a special employee where he is transferred for a limited time to serve another entity. A court is most likely to find special employe status where the company the employee is transferred to controls and directs the employee's work. A special employee is subject to the exclusivity rule.

The exclusivity rule provides that an injured worker’s only remedy is workers compensation benefits.

Was the laborer limited to workers' compensation as his exclusive remedy?

A. Yes. Posillico took over the duty from Morley to supervise the laborer’s work.

B. No. Morley was his employer and paid his wages.

If you selected A, you agreed with the court in Ceja v. Posillico Civil, Inc., No. 2024-07053 (N.Y. App. Div. 12/11/25), which ruled that the worker’s only remedy was workers’ compensation.

The laborer was a special employee based on the contract between the two companies. It was particularly telling that Posillico took over supervision and control of the laborer’s work.

Further, the injury was clearly work-related, as the laborer tripped over a piece of debris in his work area.

The appeals court affirmed the trial court’s dismissal of the case.

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