Workers’ Compensation Has Jurisdiction Of Claim Against Co-Employee

Co-employee immunity was permitted to be invoked in a claim where the fellow employee was not on the actual job site during the time period that the co-worker was injured. A supervisor at Acme Plastics, Inc., during the years 1983 through November of 1988 removed the safety tape from a computerized saw which ultimately resulted in another employee's injury. The injured employee was hired in March of 1989 and suffered the accident in May of 1989 because of the prior removal of the safety apparatus.

The court recognized that both employees did work for a common employer, and therefore invoked the immunity doctrine which bars a liability claim for the negligent action of the "co-worker" of the same employer. The court reasoned that the former employee, who was alleged to have been negligent in the removal of the device, did perform the alleged act "in the course of" his employment. Therefore, even though the injured worker had not been hired when the negligent act occurred, a claim could not be brought against the "fellow employee." Estrada v. Hendricksaw Corp., et al., 1997 WL 336433 (App.Div.1997).