Opinion
DOCKET NO. A-0976-12T2
07-29-2014
GREGG SMITH AND JEANETTE SMITH, husband and wife, Plaintiffs-Appellants, v. TOO FAST RECOVERY, INC., SCOTT SCHNEIDER, SACCO SALES & SERVICE, INC., Defendants, and DISCOT, CORP., CARLA SCHNEIDER AND ROBERT SCHNEIDER, Defendants-Respondents.
Evan D. Baker argued the cause for appellants (Law Offices of Rosemarie Arnold, attorneys; Mr. Baker, on the brief). Alan M. Liebowitz argued the cause for respondents Discot, Corp., and Carla Schneider. Scott D. Baron argued the cause for respondent Robert Schneider (Baron Samson, LLP, attorneys; Mr. Baron, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and Maven. On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-4586-09. Evan D. Baker argued the cause for appellants (Law Offices of Rosemarie Arnold, attorneys; Mr. Baker, on the brief). Alan M. Liebowitz argued the cause for respondents Discot, Corp., and Carla Schneider. Scott D. Baron argued the cause for respondent Robert Schneider (Baron Samson, LLP, attorneys; Mr. Baron, of counsel and on the brief). PER CURIAM
Plaintiff Gregg Smith appeals from two orders dismissing defendants from this litigation. Smith's complaint sought recovery for injuries suffered when a forklift operated by defendant Scott Schneider tipped, crushing him. Smith alleged various theories of negligence against Scott and his towing company, co-defendant Too Fast Recovery, Inc. (Too Fast), a tenant of the Paramus real property where Smith's injury occurred; Discot Corporation (Discot), a realty holding company solely owned by Carla Schneider, Scott's mother, that owned the Paramus property; and Robert Schneider, Carla's husband and Scott's father, who sublet space from Scott, and for whom Smith was providing services when he was injured.
For ease in our opinion, we present the matter as if Gregg Smith was the sole plaintiff, however, we are aware Jeanette Smith filed a derivative claim for loss of consortium.
Because the defendants are related and share a common surname, after an initial introduction we will refer to them by their first names.
Prior to trial, Smith settled with Scott and Too Fast. Next, summary judgment was granted in favor Discot and Carla. Trial proceeded against Robert. At the close of Smith's case, the trial judge granted Robert's motion to dismiss. On appeal, Smith argues the court erroneously dismissed these three defendants from the litigation. We disagree and affirm.
I.
These facts are taken from the trial record. In the spring of 2008, Robert hired Smith to perform a "swap-out" of two trucks: after retrieving two salvaged Freightliner trucks and hauling them to the Paramus property, Smith was to combine the parts into one functioning vehicle, for which Robert paid him approximately $2 50 per day.
Carla originally held title to the Paramus property. In 1996 she formed Discot and was its sole shareholder. Robert was not "an owner, agent, incorporator, director or shareholder [of Discot]." Carla transferred the Paramus property to Discot in 2006, which owned and managed the realty. Scott, individually, and Too Fast, Scott's closely held corporation, were tenants of Discot's Paramus property, subject to a written, five-year, commercial lease agreement, executed on December 20, 2007. Robert was not an owner, "director, officer, or employee of Too Fast." Robert did not maintain any kind of business on the Paramus property, but acknowledged he helped Scott build trucks on the property for which he was not compensated.
The lease required Too Fast and Scott to "make all repairs including decorating and painting," and prohibited "encumber[ing] []or obstruct[ing] the sidewalks, driveways, yards, entrances, hallways, and stairs," and affirmatively required the tenant to "keep and maintain the same in a clean condition, free from debris, trash, refuse, snow, and ice." While the lease permitted Discot and Carla to enter the premises "for the purpose of examining . . . or making repairs or alterations[,]" the same clause explicitly disclaimed any covenants on behalf of Discot and Carla to make repairs. Additionally, Scott and Too Fast were responsible for "all rents or charges for water or other utilities used" by them.
During the year prior to the May 1, 2008 accident, Smith worked for Too Fast, transporting cars from the Paramus storage yard to various locations in Pennsylvania. He would "[t]ake two cars out, pick two cars up and bring two cars back." Smith performed at least five or six of these assignments "plus [he] would also go and pick up cars at [the] salvage auction." When accomplishing these tasks, Smith sometimes used Too Fast's cars, or his own "Ford flatbed."
In completing the job commissioned by Robert, Smith received some instructions. In addition to being told where to pick up the two trucks, he was instructed to deliver the trucks to the Paramus property. Also, Robert told Smith which vehicle was to be the functioning truck after reconstruction and Robert instructed Smith to remove the nose and front axle from one truck and install the functional parts into the other. Robert also explained "how to disconnect some of the stuff, because he wanted to save stuff that wasn't going to be used for that truck to be used on another vehicle[,]" as well as "[h]ow to lift the cab of the truck." Further, Robert helped Smith "disconnect stuff" and at one point, Robert "got his hand caught between . . . the cab and the frame."
In order to perform the requested work, Smith had to utilize tools, including a forklift and a Sawzall found on the Paramus property. The forklift belonged to Too Fast, which it purchased on Ebay prior to the accident.
Much testimony was devoted to the forklift's condition. At the time of acquisition, the forklift was in "poor condition[,]" such that "the whole machine" was "unfunctionable [sic]." Smith testified he had experienced steering difficulties while operating the forklift and "sometimes [the forklift] would have brakes, sometimes it wouldn't have brakes."
To complete the swap out for Robert, Smith used the forklift "to move the truck around. And to . . . move all the [scrap] that was there out of the way." Robert had advised Smith, on two occasions, "if . . . [he were] to move the truck . . . it had to be . . . [l]ifted a certain way or whatever not to damage the nose." To do so, Smith was "physically require[d]" to "chain it a certain way so [he] didn't damage what was left on the truck."
On the day of the accident, Smith arrived at the Paramus property to perform his second day of work on the trucks. Robert was not present. Smith testified Robert had discussed "what he was going to get done that day and how [he] was going to leave it at the end of the day." Following Robert's instructions regarding how to move the truck with the forklift, Smith connected chains "to the wheel of the truck" and the other portion of the chain was connected to "the mass of the . . . forklift. The actual front of the forklift." Smith last remembered "hooking the vehicle" to the forklift as he prepared to move one truck closer to the other when he "heard the [forklift] running[,]" which sounded "[l]ike it was getting louder." Smith "s[aw] Scott [] in the [forklift]." The forklift tipped, pinning Smith in a position bent over with his head between his knees. Scott summoned emergency personnel who extricated Smith and rushed him to the hospital. When police arrived, they found Smith pinned underneath the forklift and the forklift engine compartment on fire.
Smith's injuries were extensive and he was in a coma for two weeks. He underwent numerous surgeries and required extensive hospitalization. As a result of the accident, he remains confined to a wheelchair.
Following initial discovery, Discot and Carla moved for summary judgment. Also, Robert filed a separate motion for summary judgment. The judge granted Discot and Carla's motion and dismissed Smith's complaint against them. As to Robert's motion, the judge granted partial summary judgment. Specifically, the judge dismissed count one, which alleged negligent ownership and maintenance of the Paramus property because it was "improperly premised on the notion that Robert was the 'owner, landlord, lessee and/or lessor and/or management company' of the premises[;]" and as to counts five and six, which are directed at fictitious designations, and "neither count makes any clear and/or applicable allegations against Robert." However, Robert's motion under count two, which alleged negligence with regard to the forklift, was denied. The judge found:
The judge also partially granted Robert's motion as to the cross-claim for indemnification and contribution by Scott and Too Fast, which erroneously alleged cross-claims under the New Jersey Tort Claims Act, and failed to establish a relationship warranting indemnification.
[A]lthough Robert did not own the forklift and testified that he never knew anything about the forklift, there are genuine issues of material fact as to Robert's duty and breach thereof related to the forklift. [Smith] allege[s] that Robert actively oversaw the work being done using the forklift and directed the precise manner in which the forklift was positioned and used.
Similarly, the trial court denied Robert's motion as to count three, alleging negligence for failure to supply Smith with proper safety equipment or a safe work environment, and count four, which alleged Robert's failure to train and supervise his employees and/or independent contractors, even though specific evidence showing Smith was Robert's employee was absent.
Trial against Robert began on September 11, 2012. Smith and his wife testified. Smith also called Robert as his witness. When plaintiff rested, Robert moved for a directed verdict. Robert acknowledged "there's different versions [of the facts,]" even "assuming the version [Smith] gave everything about that is true, there is simply no basis for which any reasonable juror could find proximate cause of this accident" resulting in Robert's liability. Judge Menelaos W. Toskos agreed and dismissed the case. Smith appeals.
II.
We review separately Smith's challenges (1) to the summary judgment dismissal of his complaint against Carla and Discot and (2) the directed verdict dismissing his complaint against Robert.
A.
When reviewing a grant of summary judgment, we employ the same standards used by the motion judge under Rule 4:46. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). First, we determine whether, affording the non-moving party the benefit of all reasonable inferences, the moving party has demonstrated there were no genuine disputes as to material facts, and then we decide whether the motion judge's application of the law was correct. Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230-31 (App. Div.), certif. denied, 189 N.J. 104 (2006). We may not resolve contested factual issues, but instead must determine whether a genuine factual dispute exists. Agurto v. Guhr, 381 N.J. Super. 519, 525 (App. Div. 2005). If there are materially disputed facts, the motion for summary judgment should be denied. Parks v. Rogers, 176 N.J. 491, 502 (2003); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). A motion may be granted only when the evidence is found to be "'so one-sided that one party must prevail as a matter of law[.]'" Brill, supra, 142 N.J. at 540 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986)).
In our review, we view the evidence in the light most favorable to the non-moving party. Estate of Hanges v. Met. Prop. & Cas. Ins. Co., 202 N.J. 369, 374 (2010) (citations omitted). We accord no special deference to a trial judge's assessment of the documentary record, as the decision to grant or withhold summary judgment does not hinge upon a judge's determinations of the credibility of testimony rendered in court, but instead amounts to a ruling on a question of law. See Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) (noting that no "special deference" applies to a trial court's legal determinations). Finally, we need not defer to the motion judge's conclusions on issues of law, Estate of Hanges, supra, 202 N.J. at 382-83, which we review de novo. Dep't of Envtl. Prot. v. Kafil, 395 N.J. Super. 597, 601 (App. Div. 2007).
Smith asserts summary judgment was erroneously granted to Discot and Carla, arguing these defendants breached their non-delegable duty as property owners to protect invitees by maintaining safe premises, free of reasonably discoverable hazards. Smith maintains as a business invitee, Carla and Discot as the "proprietor of premises to which the public is invited for business purposes of the proprietor owes a duty of reasonable care to those who enter the premises upon that invitation to provide a reasonably safe place to do that which is within the scope of the invitation." Brown v. Racquet Club of Bricktown, 95 N.J. 280, 290 (1984) (citation and internal quotation marks omitted). Specifically, Smith contends: (1) the premises were being used for ultra-hazardous activities and Carla and Discot breached their duty by failing to inspect the premises; and (2) Carla and Discot's "operation of the salvage yard in a haphazard manner . . . constitute[d] a per se nuisance for which Discot and Carla [] should be liable." These arguments are unavailing. Viewing all facts in the light most favorable to Smith, defendants are nevertheless entitled to judgment as a matter of law.
It is well-settled that "to render a person liable on the theory of negligence there must be some breach of duty, by action or inaction, on the part of the defendant to the individual complaining, the observance of which duty would have averted or avoided the injury." Brody v. Albert Lifson & Sons, Inc., 17 N.J. 383, 389 (1955). "The existence of a duty to exercise reasonable care to avoid a risk of harm to another is a question of law," Fackelman v. Lac d'Amiante du Quebec, 398 N.J. Super. 474, 486 (App. Div. 2008) (citing Olivo v. Owens-Illinois, Inc., 186 N.J. 394, 401 (2006)), subject to our de novo review. "Of course, the legal determination of the existence of a duty may differ, depending on the facts of the case. Wang v. All State Ins. Co., 125 N.J. 2, 15 (1991).
Determination of whether a duty exists turns on questions of fairness and policy that, in turn, implicate many factors. Fackelman, supra, 398 N.J. Super. at 486 (citing Carvalho v. Toll Bros. & Developers, 143 N.J. 565, 572 (1996)). We recognize a defendant's duty to one injured on his or her property turns on a number of considerations, including "the relationship of the parties, the nature of the attendant risk, the opportunity and ability to exercise care, and the public interest in the proposed solution." Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439 (1993).
Although, a landowner "who invites workmen of an independent contractor to come upon his premises is under a duty to exercise ordinary care to render reasonably safe the areas in which he might reasonably expect them to be working[,]" that duty "to provide a reasonably safe place to work is relative to the nature of the invited endeavor and does not entail the elimination of operational hazards which are obvious and visible to the invitee upon ordinary observation and which are part of or incidental to the very work the contractor was hired to perform." Sanna v. Nat'l Sponge Co., 209 N.J. Super. 60, 66-67 (App. Div. 1986). See also Rigatti v. Reddy, 318 N.J. Super. 537, 541-42 (App. Div. 1999); Accardi v. Enviro-Pak Sys. Co., 317 N.J. Super. 457, 463 (App. Div.), certif. denied, 158 N.J. 685 (1999).
Smith cannot demonstrate Carla and Discot invited him or engaged him to perform services on the property; that they, as landlords, retained control over "the manner and means of doing the work he was performing" or that the work he performed constituted a nuisance per se. Accardi, supra, 317 N.J.Super. at 463. See also Sanna, supra, 209 N.J. Super. at 67 ("[A] landowner is under no duty to protect an employee of an independent contractor from the very hazard created by doing the contract work.").
Courts have seemingly abandoned the term "nuisance per se." As distinguished from an "ultrahazardous activity," such conduct is termed "inherently dangerous activity," for which "liability depends upon proof of negligence." State, Dep't of Envtl. Prot. v. Ventron Corp., 94 N.J. 473, 490-91 (1983).
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More apt to this matter, which was not addressed by Smith, is a landowner's general obligation to maintain a safe premises can be altered by allocating the responsibility under the terms of a lease, like the one at issue here. See McBride v. Port Auth. of N.Y. & N.J., 295 N.J. Super. 521, 523 (App. Div. 1996) (holding a commercial landlord who had leased a warehouse where the lease agreement put tenant in exclusive possession and made it responsible for maintenance and repair did not owe a duty to tenant's employee who was injured when a vehicle he was operating struck a hole in the loading dock, even though the landlord retained the right to enter the premises to perform repairs); Geringer v. Hartz Mountain Dev. Corp., 388 N.J. Super. 392, 400-01 (App. Div. 2006) (finding commercial landlord owed no duty to repair or maintain interior stairway within the leased premises on which tenant's employee slipped and fell, under provisions of a "triple net" lease where tenant agreed to undertake all repairs of the premises), certif. denied, 190 N.J. 254 (2007). Accordingly, a landlord is not liable for personal injuries suffered by a commercial tenant's invitees on the leased premises, which results from a lack of proper maintenance of the leasehold when the lease explicitly requires the tenant to assume responsibility to maintain the premises.
Here, the contractual lease arrangement between Discot as the landlord and Too Fast and Scott as the tenants, "contains no ambiguity with regard to the responsibility for maintenance and repairs with regard to the lot which was the site of the accident." See McBride, supra, 215 N.J. Super. at 522-23. Section 2 places the onus on the lessee to "take good care of the premises" and to "make all repairs." While Section 7 reserves a right to the landlord to perform repairs, its disclaimer clause is explicit and unambiguous that "[t]his clause shall not be deemed to be a covenant by the landlord nor construed to create an obligation on the part of the landlord to make such inspections or repairs." Therefore, the lease agreement obviates any duty owed by Discot and Carla to Smith. After viewing the facts most favorably to Smith, we conclude Carla and Discot are entitled to judgment as a matter of law.
Next, Smith suggests "[h]ad the defendant [Carla] performed reasonable inspections, she would have likely noted the dangerous condition of the rear yard with numerous salvage vehicles being serviced by an 'unfunctionable' forklift." This argument lacks merit. We reject as a matter of law Smith's assertion that the property was used by Scott and Robert for "ultra-hazardous work," imposing a higher duty on the landlord.
The abnormally dangerous activities doctrine "imposes liability on those who, despite social utility, introduce an extraordinary risk of harm into the community for their own benefit." Biniek v. Exxon Mobil Corp., 358 N.J. Super. 587, 598 (App. Div. 2002) (citing T & E Indus. v. Safety Light Corp., 123 N.J. 371, 386-87 (1991)). Although the law tolerates such hazardous conduct, "the risk of loss is allocated to the enterpriser who engages in it." Ibid.
In considering the issue, this court is guided by the following factors:
(a) existence of a high degree of risk of harm to the person, land or chattels of others;
(b) likelihood that great harm would result therefrom;
(c) the inability to eliminate those risks through the exercise of reasonable care;
(d) the common usage of the activity;
(e) the appropriateness of the activity; and
(f) the value of the activity to the community.
[Id. at 598-99 (citing Restatement (Second) of Torts, §520 (1977)).]
"[W]hether an activity is abnormally dangerous is to be determined on a case by case basis." Id. at 598. In this matter, Smith does not identify any particular activity alleged to satisfy the ultrahazardous exception. We reject the notion such a status can be inferred because the premises was used by Discot's tenant as a salvage yard who owned a used, sometimes unreliable forklift.
B.
We turn to the directed verdict and dismissal of the complaint against Robert. Rule 4:37-2(b) requires a trial judge requested to enter an involuntary dismissal to determine "whether the evidence, together with the legitimate inferences therefrom, could sustain a judgment in . . . favor of the party opposing the motion[.]" Dolson v. Anastasia, 55 N.J. 2, 5 (1969) (alteration in original) (internal quotation marks and citations omitted). "[I]f, accepting as true all the evidence which supports the position of the party defending against the motion and according [the party] the benefit of all inferences which can reasonably and legitimately be deduced therefrom reasonable minds could differ, the motion must be denied." Potente v. Cnty. of Hudson, 187 N.J. 103, 111 (2006) (first alteration in original) (quoting Monaco v. Hartz Mt. Corp., 178 N.J. 401, 413 (2004)). The court's function on a motion for involuntary dismissal is "quite a mechanical one" as the "court is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the party opposing the motion." Dolson, supra, 55 N.J. at 5-6.
In our review, "we apply the same standard as the trial court[.]" Bennett v. Lugo, 368 N.J. Super. 466, 479 (App. Div.), certif. denied, 180 N.J. 457 (2004). In doing so, we do not defer to the legal conclusions made by the trial judge. Manalapan Realty, supra, 140 N.J. at 378.
In deciding Robert's motion for directed verdict, he "t[ook] as true" Smith's trial testimony, including his explanation that Robert "instructed him how to do the work," that is, how to attach the truck to the forklift. The judge evaluated Smith's claims that Robert was negligent in failing to provide a "safe working environment" or failed to properly supervise the work activity.
The judge also considered Smith's expert report that discussed the cause of the accident. The expert opined:
[A]t the time of Mr. Smith's accident, Mr. Smith was down on the ground on both of his knees and most likely, he completed the connection of the end of the chain to the cross-bar that is attached to the [f]orks on the [f]orklift. The cross-bar and [f]orks were in the lower position on the mast for the [f]orklift at the time that Mr. Smith connected the end of the chain to the [f]orklift. When Mr. Smith heard the loud sound of the machine, this was Mr. Scott Schneider powering up the engine on the [f]orklift in order for the [f]orklift to gain power to raise the [f]orks and crossbar which had the chain attached to it. The raising of the [f]orks with the chain attached to it created a force on the front of the [f]orklift. The chain, being connected to the cross-bar on the left side of the [f]orks, which is also on the left side of the [f]orklift, created an
unbalanced force on the front of the [f]orklift.
With the chain connected to the left front side of the [t]ruck . . . and on the left side of the [f]orklift, this created a [d]iagonal [f]orce across the front of the [f]orklift. Based on [e]ngineering [p]hysics [l]aw, this diagonal force created two component forces; one force in the horizontal direction, which is across the front of the [f]orklift, and the other force is in the vertical direction, which is attempting to overturn or tip the [f]orklift to the left. The chain that is connected on the left side of the [f]orklift is on the cross-bar which is beyond the alignment of the left tire on the f]orklift.
As Mr. Schneider increased the power of the engine on the [f]orklift, he was simultaneously raising the [f]orks with its chain attached to the cross-bar. Eventually the vertical component of the forces became so large that it overcame the dead weight of the [f]orklift thus causing the [f]orklift to tip over onto Mr. Smith. . . .
It is also this [e]ngineer's opinion, based on [e]ngineering [p]hysics [l]aw, and based on a reasonable degree of [e]ngineering certainty, that had Mr. Scott Schneider not raised the [f]orks on the [f]orklift, any diagonal force that may have occurred due to misalignment between the [f]orklift and the [t]ruck would not increase the vertical component of the forces, thus keeping the forklift in the upright position and Mr. Smith's accident would have been avoided.
Finally, the judge considered Smith's argument that he disagreed with Robert's instruction that he chain the truck to the forks, rather than following his own inclination to put the forks through the truck's nose. Smith argued because he was in the process of securing the chain as Robert directed, he was bent over and in a "precarious position" when Scott started to raise the forks and the truck flipped. He states:
And although . . . Scott then operated the forklift. The only reason that Mr. Smith was in that vulnerable position was because he was chaining it and securing the forklift to the freightliner in the manner that was prescribed and directed by [Robert] Schneider, contrary to what Mr. Smith would have liked to have been done.
Weighing all available evidence, considered in a light most favorable to Smith, the judge made these findings and conclusions:
The [c]ourt can't find any evidence or reasonable evidence to be adduced that Robert Schneider was negligent either in supervising [Smith] because, initially, I don't find any evidence that they came to an agreement that he was going to supervise the work. Yes, I'm taking as true the testimony of [Smith]. There's no reason for me not to believe it, but I also have to take it as true for purposes of this motion that there was an agreement . . . and [as] part of that agreement, he instructed him how to do the work, but the fact that he told [Smith] to use the forklift doesn't . . . indicate that he was negligent in any way.We find no flaw in Judge Toskos's analysis of the facts or the application of the law.
The fact that he told him to use a forklift that, perhaps, was not in good condition, there's no indication that the condition of the forklift caused the accident, absolutely no evidence at all on that. The fact that . . . he told him to do this work at [the Paramus property] . . . a
yard that was somewhat congested, let's put it that way, from the photographs that are in evidence, but there's no . . . evidence whatsoever to indicate that the condition of the yard caused the accident. And with respect to supervising, there's no evidence to indicate that there was negligent supervision. Even if I can somehow infer from that evidence that's before the jury that Mr. Robert Schneider undertook to supervise him, there's no evidence that he did it in a negligent manner.
So, I can't find even a scintilla of evidence that Mr. Schneider was negligent, and even if he was negligent, then we have the issue of proximate cause and although proximate cause is an issue normally reserved for the jury, that rule is far from absolute[.]
I find that . . . there's absolutely no explanation as to how the accident occurred and the [c]ourt is cognizant that one of the witnesses that was going to be called by the defendant was going to be plaintiff's expert and I can understand that because apparently the prime target of the action as a defendant was Scott Schneider who was operating the . . . forklift, when the accident occurred and it clearly appears that it was the negligent operation by Mr. Scott Schneider that caused the accident, at least that would have been the explanation given, I surmise, by [Smith's expert] as to how this accident happened. . . . [T]here was no explanation as to what caused this accident and certainly no explanation that the cause of the accident was the result of any negligence by the defendant, Robert Schneider, and I recognize that Mr. Smith suffered severe injuries from this accident. . . . So, for those reasons I'll grant your motion and dismiss the case[.]
Smith's suggestion that the evidence was sufficient to allow the jury to consider the ultimate question is unfounded. There is no evidence linking the condition of the forklift or its unreliability as the cause for it to tip. Unlike the plaintiff in Alloway v. Bradlees, Inc., 157 N.J. 221 (1999), cited by Smith to support his position, the injury did not occur in the course of an attempt to fix a defective component of faulty equipment necessary to perform a work function. Id. at 232.
Also, assuming Robert gave Smith directions, the facts do not support a claim that Robert exerted control over the job location or direction of the manner in which the delegated tasks were carried out. See Muhammad v. N.J. Transit, 176 N.J. 185, 198 (2003) (holding a contractee is under no duty to protect an independent contractor from the very hazard created by the doing of the contract work, provided the contractee does not retain control over the means and methods of the execution of the project). Robert had no ownership interest or control over the Paramus property. Robert did not control Scott's business activities. The mere familial relationship of the parties does not reflect a blurring of the lines of ownership and authority over the various entities requiring the jury's review and factual determination. See Accardi, supra, 317 N.J. Super. at 460 (reversing summary judgment where the parties interrelationship obscured the lines of control over the realty and the contractor's obligations to abide the instructions of the landowner as well as the regarding the equipment located thereon).
Accepting the facts most favorable to Smith, his expert's opinion as well as his own testimony during cross-examination suggest the cause of the accident was Scott's operator error in engaging the forklift prior to the load being completely secured. Apparently, it was Scott who failed to consider the safety issues. No evidence shows Scott acted at Robert's direction or instruction. Therefore, the trial judge appropriately entered the directed verdict.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPEALATE DIVISION