Opinion
DOCKET NO. A-0563-11T4 DOCKET NO. A-0755-11T4
02-12-2013
JERRY JOSEPH, Plaintiff-Appellant, v. ALESIA JEFFERSON & DAMON JEFFERSON, Defendants-Respondents. JERRY JOSEPH, Plaintiff, v. ALESIA JEFFERSON, DAMON JEFFERSON, Defendants/Third Party Plaintiffs-Appellants, v. ZURICH AMERICAN INSURANCE COMPANY, Third Party Defendant-Respondent.
Mark J. Molz argued the cause for appellant Jerry V. Joseph. Deborah C. Halpern argued the cause for respondents/appellants Alesia Jefferson and Damon Jefferson (Parker, Young & Antinoff, LLC, attorneys; Ms. Halpern and Drew J. Parker, on the briefs). Coughlin Duffy LLP, attorneys for respondent Zurich American Insurance Company (James P. Lisovicz, of counsel; Nicole J. Figliolina, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Alvarez and Waugh.
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-3151-09.
Mark J. Molz argued the cause for appellant Jerry V. Joseph.
Deborah C. Halpern argued the cause for respondents/appellants Alesia Jefferson and Damon Jefferson (Parker, Young & Antinoff, LLC, attorneys; Ms. Halpern and Drew J. Parker, on the briefs).
Coughlin Duffy LLP, attorneys for respondent Zurich American Insurance Company (James P. Lisovicz, of counsel; Nicole J. Figliolina, on the brief). PER CURIAM
These related appeals were scheduled before us on the October 2, 2012 calendar, although only A-0563-11 was argued. Because essentially the same factual background is applicable to both, we consolidate them for the purposes of this opinion. In A-0563-11, plaintiff Jerry Joseph appeals the Law Division's September 2, 2011 order granting summary judgment to defendants Alesia and Damon Jefferson, dismissing his personal injury action. In A-0755-11, the Jeffersons appeal the Law Division's June 10, 2011 order granting summary judgment to third-party defendant Zurich American Insurance Company, dismissing their third-party complaint for insurance coverage.
I.
We discern the following factual and procedural history from the record on appeal.
The Jeffersons own a single-family home in Pemberton. In connection with the construction of a pole barn on their property, they ordered two truckloads of concrete for the floor of the barn from Richard E. Pierson Materials Corporation (Pierson). According to Damon, he had no experience working with concrete, so he retained someone whom he knew as "Chinaman" to help him prepare the ground and spread the concrete. Chinaman hired Eddie James Burnett to assist him.
Because the defendants share the same last name, we use their first names to refer to them individually.
Although Damon described Chinaman as a "friend" whom he had known for about sixteen years, he was unable to provide his real name or his address during his deposition.
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Damon had previously used both men for other building and construction tasks, including projects unrelated to the project at issue. Damon paid Chinaman in cash, and Chinaman in turn paid others who helped him with the work. According to Damon, Chinaman told him that he had experience working with concrete.
The concrete was delivered to the Jeffersons' property on June 26, 2009. Damon, Chinaman, and Burnett had constructed forms for the concrete, using rebar, two-by-fours, and wire mesh to strengthen the concrete. According to Damon, Chinaman and Burnett provided tools to work the concrete and he followed instructions from Chinaman in assisting them on the project.
Joseph was employed by Pierson, which assigned him to drive one of the trucks delivering the concrete. When he arrived at the site, his supervisor instructed him on when and where to pour the concrete, which he did from inside the vehicle. After Joseph had released two to three yards of concrete, his supervisor instructed him "to come out and give [him] a hand." Joseph exited the vehicle and assisted in spreading and leveling the concrete. According to Joseph, either Chinaman or Burnett assisted by digging a shovel in the concrete occasionally. Joseph then got back into his truck and unloaded a second segment of concrete. After this was unloaded, he got out of the truck and resumed helping his supervisor spread the concrete. Joseph testified that, as they were working with the concrete, Chinaman and Burnett told him they had "never [done] that before."
As Joseph was raking the concrete, he stepped backward. He noticed that either Chinaman or Burnett was behind him, picking up the wire mesh with both hands. The wire caught on Joseph's leg, causing him to fall and land on a shovel. Joseph did not see Damon at the scene until after he fell, when Damon approached to ask if Joseph was injured. Joseph felt pain in his back, but finished spreading the concrete. He was subsequently diagnosed with a herniated disc at L4-5 and a bulge at L5-S1.
According to Joseph, the concrete forms were not set up in a professional manner because "[t]here wasn't enough guys, there was no equipment, nobody had any knowledge of what was going on other than the concrete delivery guys themselves." Nevertheless, he characterized the manner in which the forms were constructed as "pretty common" at residential job sites where homeowners save money by "trying to do [it] themselves."
Joseph's usual job duties did not include spreading concrete, but he was occasionally instructed to do so by his supervisors. He estimated that he had been asked to do so roughly twenty times in the six months prior to the delivery at issue.
At the time of the incident, the vehicle driven by Joseph was covered by an insurance policy issued by Zurich to Pierson. The policy included a clause stating that Zurich "will pay all sums an 'insured' legally must pay as damages because of 'bodily injury' or 'property damage' to which this insurance applies, caused by an 'accident' and resulting from the ownership, maintenance or use of a covered 'auto.'" The policy defined an "insured" to include, in addition to the policy holder, "anyone else while using with . . . permission a covered 'auto' [the holder] own[s], hire[s] or borrow[s]."
In September 2009, Joseph filed a complaint against the Jeffersons, seeking to recover for the injuries caused by their alleged negligence. The Jeffersons answered in November. They subsequently filed a third-party complaint, arguing that they were entitled to a defense and indemnification under the Zurich policy.
In response to separate motions for summary judgment, the motion judge granted summary judgment in favor of the Jeffersons against Joseph and in favor of Zurich against the Jeffersons. These appeals followed.
II.
Because both appeals are from grants of summary judgment, we outline our standard of review for such grants before turning to the issues raised by the appellants.
It is well-established that our review of a trial judge's conclusions of law is de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) ("A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference."). Consequently, we review a grant of summary judgment de novo, applying the same standard governing the trial court under Rule 4:46-2(c). Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 539-40 (1995); Chance v. McCann, 405 N.J. Super. 547, 563 (App. Div. 2009) (citing Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007)). In addressing a motion for summary judgment, a judge must "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill, supra, 142 N.J. at 540; see also R. 4:46-2(c).
A.
We first address the appeal filed by Joseph in A-0563-11. He contends that the motion judge erred in granting summary judgment because Chinaman and Burnett, whose negligence caused the injury, were employees of the Jeffersons rather than independent contractors. In addition, he argues that they were negligently hired by the Jeffersons and were not qualified to perform the work for which they were engaged.
i.
"Although as a general rule of tort law, liability must be based on personal fault, the doctrine of respondeat superior recognizes a vicarious liability principle pursuant to which a master will be held liable in certain cases for the wrongful acts of his servants or employees." Carter v. Reynolds, 175 N.J. 402, 408 (2003) (emphasis omitted). "The employer, having 'set the whole thing in motion,' should be held 'responsible for what has happened.'" Galvao v. G.R. Robert Constr. Co., 179 N.J. 462, 467 (2004) (quoting W. Page Keeton et al., Prosser and Keeton on Torts § 69, at 500 (5th ed. 1984)).
"Under respondeat superior, an employer can be found liable for the negligence of an employee causing injuries to third parties, if, at the time of the occurrence, the employee was acting within the scope of his or her employment." Carter, supra, 175 N.J. at 408-09 (emphasis omitted). "To establish a master's liability for the acts of [the] servant, a plaintiff must prove (1) that a master-servant relationship existed and (2) that the tortious act of the servant occurred within the scope of that employment." Id. at 409. The existence of a master-servant relationship (now often referred to as an employer-employee relationship) turns on the nature of the parties' relationship.
In contrast, "[o]rdinarily, an employer that hires an independent contractor is not liable for the negligent acts of the contractor in the performance of the contract." Bahrle v. Exxon Corp., 145 N.J. 144, 156 (1996). Such is the case "where a person engages a contractor, who conducts an independent business by means of his own employees." Mavrikidis v. Petullo, 153 N.J. 117, 151 (1998) (quoting Majestic Realty Assocs., Inc. v. Toti Contracting Co., 30 N.J. 425, 430-31 (1959) (no agent relationship where the entity that hires the independent contractor supervises to ensure work is completed, but does not supervise the manner in which work is completed)). The primary dispute between Joseph and the Jeffersons was whether Chinaman and Burnett were the Jeffersons' employees or independent contractors.
The determination of whether an employer-employee relationship exists is typically a factual issue for the jury to decide and is rarely determined as a matter of law. Bennett v. T & F Distrib. Co., 117 N.J. Super. 439, 441 (App. Div. 1971), certif. denied, 60 N.J. 350 (1972). However, if there are no disputed facts or inferences that may be drawn from undisputed facts regarding the employment relationship, a judge may properly grant summary judgment to the moving party. Marion v. Pub. Serv. Electric & Gas Co., 72 N.J. Super. 146, 157-58 (App. Div. 1962). A trial judge should only determine an issue of agency where the facts and inferences are completely one-sided, and a rational jury could not possibly come to an alternate conclusion. Mangual v. Berezinsky, 428 N.J. Super. 299, 308 (App. Div. 2012).
"The relationship of master and servant is not capable of exact definition" and "must be determined in the light of the totality of the facts surrounding the relationship." Gilborges v. Wallace, 153 N.J. Super 121, 132 (App. Div. 1977) (quoting Andryishyn v. Ballinger, 61 N.J. Super. 386, 391 (App. Div.), certif. denied, 33 N.J. 120 (1960)), aff'd in part, remanded in part, 78 N.J. 342 (1978). In determining whether agency exists, New Jersey applies the standard set forth in section 220 of the Restatement (Second) of Agency. Carter, supra, 175 N.J. at 409; Mangual, supra, 428 N.J. Super. at 307. Section 220 provides:
(1) A servant is a person employed to perform services in the affairs of another and who with respect to the physical conduct in the performance of the services is subject to the other's control or right to control.
(2) In determining whether one acting for another is a servant or an independent contractor, the following matters of fact, among others, are considered:
(a) the extent of control which, by the agreement, the master may exercise over the details of the work;
(b) whether or not the one employed is engaged in a distinct occupation or business;
(c) the kind of occupation, with
reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;[Restatement (Second) of Agency § 220 (1958).]
(d) the skill required in the particular occupation;
(e) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work;
(f) the length of time for which the person is employed;
(g) the method of payment, whether by the time or by the job;
(h) whether or not the work is a part of the regular business of the employer;
(i) whether or not the parties believe they are creating the relation of master and servant; and
(j) whether the principal is or is not in business.
Furthermore, New Jersey has provided an additional "catch-all" factor, stating that courts may consider "such other factors as may be reasonably considered in determining whether the entity for which the services are being performed controls, or has the right to control, the entity performing the services." Model Jury Charge (Civil), 5.10I(A), "Agency: Employer/Employee" (2011); see Carter, supra, 175 N.J. at 410.
Although each factor should be considered based on the totality of the circumstances, the primary and oftentimes determinative factor considered by courts is whether the employer exercised control over the individual in question. See Galvao, supra, 179 N.J. at 467 ("The traditional 'essence' of vicarious liability based on respondeat superior relies on the concept of employer 'control' over an employee." (emphasis omitted)). Control exists where the employer has "the right to direct the manner in which the business shall be done, as well as the result to be accomplished, or in other words, not only what shall be done, but how it shall be done." Wright v. State, 169 N.J. 422, 436-37 (2001) (quoting N.J. Prop.-Liab. Ins. Guar. Ass'n v. State, 195 N.J. Super. 4, 8 (App. Div.), certif. denied, 99 N.J. 188 (1984)) (internal quotation mark omitted); see also Majestic, supra, 30 N.J. at 431 ("The supervisory interest relates to the result to be accomplished, not to the means of accomplishing it.").
In New Jersey, control can be established where the employer has either "broad" or "on-spot" control. Galvao, supra, 179 N.J. at 472. "Broad control" exists where the employer has such a broad influence over the entire project that the court may infer the employer's right to control the employee. See id. at 472-73. Some factors to consider when determining "broad control" are the method of payment, which party furnishes equipment, and whether the employer has right of termination. Ibid. On the other hand, "on-spot control" refers to the employer's actual control over the employee's day-to-day work, such as directing the individual's activities while working, providing a supervisory role, or having responsibility for an employee's safety. Id. at 473.
Based upon our review of the record, giving Joseph the benefit of all favorable inferences, we conclude that the motion judge correctly determined that there were no genuine issues of material fact and that Chinaman and Burnett were not employees of the Jeffersons. Chinaman was, in essence, a handyman engaged by the Jeffersons to perform the work. He chose other workers as needed and paid them out of the lump sum he received from the Jeffersons for the project. Although Damon apparently supplied some of the materials, he did not supply the tools required for the work.
Most importantly, there are no competent facts in the record to suggest that either of the Jeffersons controlled the manner in which the work was performed. Damon relied on Chinaman to perform the work and did not have sufficient knowledge to perform or direct the work himself. To the extent he provided assistance, Damon received instruction from Chinaman. Joseph did not see Damon directing the manner of the work. Although Joseph asserts that Chinaman told him he had "never [done] that before," he has not produced any statement from Chinaman to support his own hearsay statement. Brill, supra, 142 N.J. at 529-30; Chi. Title Ins. Co. v. Ellis, 409 N.J. Super. 444, 457 (App. Div.), certif. denied, 200 N.J. 506 (2009). Consequently, we conclude that a rational jury could not find that Chinaman and Burnett were employees of the Jeffersons.
ii.
Joseph also suggests that the Jeffersons violated a duty of care to him as an invitee. It is true that, "[a]s a general rule, a landowner has a non-delegable duty to use reasonable care to protect invitees against known or reasonably discoverable dangers." Kane v. Hartz Mountain Indus., 278 N.J. Super. 129, 140 (App. Div. 1994), aff'd o.b., 143 N.J. 141 (1996). However, "[t]he landowner is under no duty to protect an employee of an independent contractor from the very hazard created by doing the contract work." Sanna v. Nat'l Sponge Co., 209 N.J. Super. 60, 67 (App. Div. 1986). Instead, "the landowner may assume that the worker, or his superiors, are possessed of sufficient skill to recognize the degree of danger involved and to adjust their methods of work accordingly." Ibid.
Although not part of his routine duties in delivering concrete, it was not unusual for Joseph to help with spreading the concrete when, as here, he was asked to do so by his supervisor. Consequently, we see no viable claim for violation of the duty owed to invitees.
iii.
Although not as clearly articulated, Joseph's brief argues that, even if Chinaman was an independent contractor, he was negligently engaged by the Jeffersons because he was not qualified to work with concrete. Negligent engagement of an independent contractor is an exception to the general rule of non-liability outlined above. Majestic, supra, 30 N.J. at 431. We find no merit in Joseph's argument because it is based on the same hearsay statement attributed to Chinaman discussed above, as well as Joseph's personal, self-serving opinion that the work was not professional.
B.
We now turn to the issues raised by the Jeffersons in A-0755-11. They contend that they were entitled to a defense from Zurich because Joseph was engaged in unloading the concrete truck insured by Zurich at the time of his injury.
Having reviewed the arguments raised by the Jeffersons, we find them to be without merit and not warranting extended discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following.
"That the concept of 'use of a vehicle' includes the acts of loading and unloading the vehicle is well settled." Kennedy v. Jefferson Smurfit Co., 147 N.J. 394, 398 (1997). However, to be covered, "the injury 'must have occurred during the process of loading or unloading the vehicle and be causally connected with that act.'" Id. at 399 (quoting Md. Cas. Co. v. N.J. Mfrs. (Cas.) Ins. Co., 48 N.J. Super. 314, 320 (App. Div.), aff'd, 28 N.J. 17 (1958)). New Jersey follows the complete operation doctrine in loading and unloading cases, under which "all that is required to establish coverage is that the act or omission which resulted in the injury was necessary to carry out the loading or unloading." Drew Chem. Corp. v. Am. Fore Loyalty Grp., 90 N.J. Super. 582, 589 (App. Div. 1966) (quoting Emp'rs' Liab. Assurance Corp. v. Indem. Ins. Co., 228 F. Supp. 896, 900 (D. Md. 1964)) (internal quotation mark omitted). In order to be covered, "there must be a substantial nexus between the injury suffered and the asserted negligent maintenance, operation or use of the motor vehicle." Penn Nat'l Ins. Co. v. Costa, 198 N.J. 229, 240 (2009).
Here Joseph unloaded the concrete while he was still inside the truck. After unloading a portion of the load, his supervisor directed him to stop unloading. His supervisor then asked him to get out of the truck and help with spreading the concrete. He then got back into the truck and continued unloading. Subsequently, he got out of the truck to assist with the concrete again, and it was then that he was hurt. Based upon the facts in the record, we conclude that Joseph's injury was not related to his use of the insured vehicle, including the unloading of the concrete. In addition, we are not persuaded that the Jeffersons were "insureds" under the Zurich policy because they were not owners or users of the concrete truck. Consequently, the Jeffersons were not entitled to a defense or indemnification under the Zurich policy. The motion judge appropriately granted summary judgment on that issue.
C.
In summary, we affirm the order granting summary judgment to the Jeffersons in A-0563-11 and to Zurich in A-0755-11.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION