Del. P.J.I. Civ. § 18.4

EMPLOYEE INJURED BY CO-WORKER

Delaware’s Workers’ Compensation Law provides that a person injured on the

job by a co-worker must accept workers’ compensation and may not file a liability

claim against the person’s employer or the co-worker.

In this case [plaintiff’s name] was an employee of [name]. [Defendant’s

name] claims that [alleged co-worker’s name] was also an employee of [name].

A person who is temporarily acting under the control of another employer may

be considered that employer’s employee even though the person usually works for

someone else. Factors to consider in deciding whether an individual is acting as the

employee of a given employer at a particular time and place include:

(1) The terms of any agreement between the employer and the alleged

employee, and the extent of control that the employer could exert over the alleged

employee. A requirement that the work of the alleged employee be performed

according to standards and specifications imposed by the employer is not sufficient

to establish control. Instead, you must examine the provisions of any agreement

about the manner or means by which the work is to be performed;

(2) Whether alleged employee is engaged in an occupation or business

distinct from the employer;

(3) Whether at the jobsite, the work specified under the contract is usually

done under direction of the contracting party or by a specialist without supervision;

(4) The independent skill required by the alleged employee’s area of work;

(5) Whether the employer paid the wages of the alleged employee while

working on the particular job;

(6) Whether the employer hired and could fire the alleged employee while

working on the particular job;

(7) Whether the employer controlled the manner and performance of the

alleged employee while on the job. Of all the factors, this is the most important;

(8) Whether the employer supplied the tools and place of work for the

alleged employee;

(9) Whether the alleged employee had an opportunity to profit under the

agreement with the employer; and

(10) The length of the relationship between alleged employee and the

employer.

You must determine whether or not [alleged co-worker’s name] was acting in

the business of and under the direction of [name] at the time of the injury to

[plaintiff’s name].