Opinion
Civil Action No. 98-1257 (NHP).
September 17, 1999
Stephen Steinberg, Esq., Clark, N.J., Attorney for Plaintiff.
Philip L. Geibel, Esq., STEVENS MINTER, Secaucus, N.J., Attorneys for Defendants, El Flamingo, 2l WIN Corporation, a/k/a Twenty One Win Corporation.
THE ORIGINAL OF THIS LETTER ORDER IS ON FILE WITH THE CLERK OF THE COURT
Dear Counsel:
This matter comes before the Court on the motion by defendants El Flamingo and 21 Win Corporation a/k/a Twenty One Win Corporation for summary judgment. This Court heard oral argument on September 13, 1999. For the reasons stated herein, the motion by defendants El Flamingo, 21 Win Corporation a/k/a Twenty One Win Corporation for summary judgment is GRANTED and plaintiff's Complaint is DISMISSED WITH PREJUDICE as to defendants El Flamingo, and 21 Win Corporation a/k/a Twenty One Win Corporation.
STATEMENT OF FACTS
Plaintiff Thomas Wansaw ("plaintiff") was employed as a security guard/bouncer for a company known as "the Agency." On March 30, 1997, plaintiff's employer, the Agency, was hired by 21 Win Corporation as an independent contractor along with another "security" outfit referred to as "O.T. Productions" to provide security guards for the purpose of securing 21 Win Corporation's nightclub known as "El Flamingo." On that night, plaintiff was one of the employees sent to work at the El Flamingo. Later that evening, an altercation arose and plaintiff was injured while going to the aid of another security guard/bouncer.Defendants El Flamingo and 21 Win Corporation a/k/a Twenty One Win Corporation ("defendants") filed the subject motion for summary judgment seeking to dismiss plaintiff's Complaint.
DISCUSSION
The standard governing a summary judgment motion is set forth in Fed.R.Civ.P. 56(c), which provides, in pertinent part, that:
[t]he judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
Fed.R.Civ.P. 56(c). A fact is material if it might affect the outcome of the suit under the governing substantive law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
Procedurally, the movant has the initial burden of identifying evidence that it believes shows an absence of genuine issues of material fact.See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). When the movant will bear the burden of proof at trial, the movant's burden can be discharged by showing that there is an absence of evidence to support the non-movant's case. Id. at 325. If the movant establishes the absence of a genuine issue of material fact, the burden shifts to the non-movant to do more than "simply show that there is some metaphysical doubt as to material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
In this matter, there are no genuine issues of material fact and therefore, summary judgment is appropriate at this time.
As this case arises under the Court's diversity jurisdiction pursuant to 28 U.S.C. § 1332, the Court will address the issue in accordance with the substantive laws, including choice of law principles, that would be applied by a New Jersey state court in this case. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487 (1941). A thorough review of New Jersey case law indicates that New Jersey courts apply a "flexible governmental-interest standard" in evaluating choice-of-law issues.Gantes v. Kason Corporation, 145 N.J. 478, 484 (1996); see egs., Boyson, Inc. v. Archer Greiner, P.C., 308 N.J. Super. 287, 296 (N.J.Super.Ct. App. Div. 1998); Greenfeder v. Jarvis, 302 N.J. Super. 153, 159 (N.J.Super.Ct. App. Div. 1997). This standard requires application "of the law of the state with the greatest interest in resolving the particular issue that is raised in the underlying litigation." Gantes, 145 N.J. at 484 (citing Veazey v. Doremus, 103 N.J. 244, 247-49 (1986)).
Notably, New Jersey courts have abandoned the traditional lex loci deliciti approach to resolving choice of law principles which required that the law of the forum state automatically be applied. The Prudential Insurance Company of America v. Nelson, II , 11 F. Supp.2d 572, 578 n. 5 (D.N.J. 1998) (citing D'Agostino v. Johnson Johnson, Inc . , 133 N.J. 516, 523 (1993)).
The first prong of the governmental interest analysis requires that an actual conflict exist between the two pertinent laws. Id. The second prong of the governmental interest analysis serves as the vehicle by which the evaluating court attempts to determine the interest that each state has in resolving the disputed issue. Specifically, the second prong requires the court "to identify the governmental policies underlying the law of each state and [analyze] how those policies are affected by each state's contacts to the litigation and to the parties." Gantes, 145 N.J. at 485 (citing Veazey, 103 N.J. at 248).
In this matter, plaintiff was an employee of an independent contractor on the night of the incident. New Jersey law provides that "ordinarily a landowner owes a duty to employees of an independent contractor who come upon the property to provide those employees with a reasonably safe place to work." Port Authority of New York and New Jersey v. Honeywell Protective Services, Honeywell, Inc., 222 N.J. Super. 11, 22 (App.Div. 1987) (citing Izhaky v. Jamesway Corp., 195 N.J. Super. 103, 106 (App.Div. 1984)). See also Accardi v. Enviro-Pak Systems Company, Inc., 317 N.J. Super. 457, 462 (App.Div. 1999), certif. denied, 158 N.J. 1999). "It has thus been said that a landowner `is under a duty to exercise reasonable care to render the work site reasonably safe for the employee of an independent contractor who comes upon those premises, for the purpose of performing work thereon, and this duty is non-delegable.'" Id. (citing Rodrigues v. Elizabethtown Gas Co., 104 N.J. Super. 436 (App.Div. 1969)).
"An independent contractor is one `who, in carrying on an independent business, contracts to do a piece of work according to his own methods without being subject to the control of the employer as to the means by which the result is to be accomplished but only as to the result of the work.'" Rigatti v. Reddy, et al . , 318 N.J. Super. 537, 542 (App.Div. 1999) (citing Accardi v. Enviro-Pak Sys. Co . , 317 N.J. Super. 457, 463 (App.Div. 1999), certif . denied , 158 N.J. 685 (1999) (quoting Bahrle v. Exxon Corp . , 145 N.J. 144, 157 (1996)).
This duty, however, "is relative to the nature of the invited endeavor and does not entail the elimination of potential operational hazards which are obvious and visible to the invitee upon ordinary observation."Id. (quoting Wolczak v. National Electric Products Corp., 66 N.J. Super. 64, 75 (App.Div. 1961)). See also Accardi, 317 N.J. Super. at 462. "So, too, when a party engages an independent contractor to carry on an activity which by its very nature involves a peculiar or high risk of harm to the contractor's employee, the landowner is generally not responsible for injuries sustained by the contractor's employee in the course of his assigned duties." Id. In other words, "[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." Dawson v. Bunker Hill Plaza Associates, et al., 289 N.J. Super. 309, 318 (App.Div. 1996), certif. denied, 146 N.J. 569 (1996) (quoting Sanna v. National Sponge Co., 209 N.J. Super. 60, 67 (App.Div. 198 6)). See also Rigatti v. Reddy, et al., 318 N.J. Super. 537, 542-43 (App.Div. 1999); Cassano v. Aschoff, et al., 226 N.J. Super. 110, 115 (App.Div. 1988), certif. denied, 113 N.J. 371 (1988). This is because "[t]he 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." Id. (citing Wolczak, 66 N.J. Super. at 75).
The only limitations upon this exception to the general rule are that a landowner "will not escape liability if the landowner retains control `over the manner and means by which the work is to be performed, [or] where the work constitutes a nuisance per se or where one knowingly engages an incompetent contractor.'" Id. (citing Cassano, 226 N.J. Super. at 113). See also Majestic Realty v. Toti Contracting Co., 30 N.J. 425, 431 (1959); Accardi v. Enviro-Pak Systems Company, Inc., 317 N.J. Super. 457, 462 (App.Div. 1999).
Here, there is no actual conflict between the laws of the State of New Jersey and the laws of the State of New York. Cf. Kaczmarek v. Bethlehem Steel Corporation, 884 F. Supp. 768, 776 (W.D.N.Y. 1995); Coyne v. 101 Hudson Street Urban-Renewal Associates, 680 N.Y.S.2d 527, 528 (1998). Therefore, this Court must apply the law of the forum state. See Schreiber v. Camm, 848 F. Supp. 1170, 1174 (D.N.J. 1994) (citations omitted).
In this matter, plaintiff first contends that defendants breached the duty owed by landowners to provide an employee of an independent contractor with a reasonably safe place to work. However, plaintiff neglects to take into account that this duty is relative to the type of work that the employee is hired to perform. Here, plaintiff was employed as a bouncer. The very nature of being a bouncer involves a certain risk of harm that the bouncer will become injured as a result of an altercation which has occurred on the premises. Moreover, defendants were right to assume that plaintiff was capable and possessed of sufficient skill to recognize that there was a certain degree of harm. This Court would venture to say that one of the primary reasons why nightclubs hire bouncers is to break up fights which have occurred on the premises. If bouncers were not employed to end the fights and escort the patrons off the premises, total chaos could occur amongst the other patrons.
Certainly, there are other reasons why a nightclub would hire bouncers. For example, nightclubs hire bouncers in an effort to deter altercations by creating a presence of intimidation. However, it is entirely reasonable to expect that, in a place where drinking alcoholic beverages is prevalent, an altercation will arise between patrons, between patrons and bouncers or between patrons and employees of the nightclub even in the presence of burly bouncers. Since it is undisputed that plaintiff was acting in the course of his assigned duties on the subject night, defendants are not responsible for any injuries sustained by plaintiff.
Finally, plaintiff contends that providing security for a club is an "inherently dangerous" activity and, therefore, defendants owe a duty of care to plaintiff to provide a reasonably safe work place despite the fact that a landowner is under no duty to protect an employee of an independent contractor from the very hazard created by doing the contract work. This claim is equally without merit. Plaintiff offers neither an expert opinion nor case law to support his mere allegation that being employed is an inherently dangerous activity. Therefore, the motion by defendants El Flamingo, 21 Win Corporation a/k/a Twenty One Win Corporation for summary judgment is GRANTED and plaintiff's Complaint is DISMISSED WITH PREJUDICE as to defendants El Flamingo, and 21 Win Corporation a/k/a Twenty One Win Corporation.
SO ORDERED:
____________________ NICHOLAS H. POLITAN U.S.D.J.