Opinion
DOCKET NO. A-4420-13T3
08-12-2015
ITALO GOMEZ and NORMA HERRERA, Plaintiffs-Respondents, v. CUMBERLAND USA, INC., Defendant, and MONTCLAIR STATE UNIVERSITY, Defendant-Appellant.
Michael A. Cifelli argued the cause for appellant (Scarinci & Hollenbeck, LLC, attorneys; Mr. Cifelli, of counsel and on the briefs; Frances Barto, on the brief). Gerald H. Clark argued the cause for respondents (Clark Law Firm, PC, attorneys; Mr. Clark, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz, Espinosa and St. John. On appeal from an interlocutory order of the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-1536-12. Michael A. Cifelli argued the cause for appellant (Scarinci & Hollenbeck, LLC, attorneys; Mr. Cifelli, of counsel and on the briefs; Frances Barto, on the brief). Gerald H. Clark argued the cause for respondents (Clark Law Firm, PC, attorneys; Mr. Clark, of counsel and on the brief). PER CURIAM
In this interlocutory appeal, defendant Montclair State University (MSU) challenges the trial court's denial of its motion for reconsideration of the court's prior order denying MSU summary judgment. Plaintiff Italo Gomez initiated suit against MSU and defendant Cumberland USA, Inc. (Cumberland), an independent contractor hired by MSU and plaintiff's employer, after he fell from a roof on MSU property while working after a heavy snowstorm. The complaint alleged MSU was negligent and failed to maintain a safe workplace. In denying MSU's motions for summary judgment and reconsideration, the motion judge rejected MSU's contention it was immune from liability under the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3.
Norma Herrera, Gomez's wife, asserted a loss-of-consortium-claim per quod. In the interest of clarity, we refer to Gomez as plaintiff for the balance of the opinion.
On appeal, MSU argues the motion judge erred by (1) finding its property was in a "dangerous condition" at the time of plaintiff's injury, N.J.S.A. 59:4-2, and (2) concluding it contracted for and assumed a legal duty to protect plaintiff, an employee of an independent contractor, from injuries sustained due to the nature of his work. See N.J.S.A. 59:2-2. Having reviewed the arguments advanced in light of the record and governing law, we reverse and remand for entry of summary judgment in favor of MSU, dismissing the case against it with prejudice.
I.
We adduce the following facts and procedural history from the record, viewed in the light most favorable to plaintiff, the non-moving party. Robinson v. Vivirito, 217 N.J. 199, 203 (2014). In December 2010, MSU contracted with Cumberland to install "snow guards" on the roof of the College Hall Building on MSU's campus in Montclair. The agreement between the parties (the agreement) provided construction was to begin within three days of Cumberland receiving the materials, importantly, adding the phrase "weather permitting." Installation was to be completed within two weeks. Incorporated into the agreement, dated December 14, 2010 and signed by Cumberland, was MSU's seven-page Safety Program.
The snow guards were intended to prevent snow build-up on the roof from falling onto sidewalks and entrances adjacent to the building.
The Safety Program directed contractors, among other things, to employ safe methods and comply with all pertinent federal, state and local safety regulations. The Safety Program further provided one of MSU's "primary responsibilities [wa]s to provide oversight for a comprehensive Safety Program for this Project." The Safety Program authorized MSU's project safety coordinator to make regular safety inspections and "implement immediate corrective action regarding noncompliance" with the Safety Program or applicable regulations.
Cumberland received the materials from a third party on January 17, 2011. Due to multiple snowstorms, work did not begin until January 24. Glenn Crooker, Jr., Cumberland's president and plaintiff's supervisor, planned to install the snow guards using a catwalk suspended between two large ladders as the means of access to the roof. The plan called for only one Cumberland employee, in this case plaintiff, to be on the roof. For safety purposes, plaintiff was to "anchor" himself immediately upon reaching the roof. This consisted of removing several shingles and inserting a nail into the roof, to which plaintiff would attach a rope connected to a safety harness to be worn by him. Plaintiff suggested a scaffolding or "boom" be used in the installation, which Crooker denied. Ultimately, a catwalk was not employed and plaintiff elected to install the snow guards while standing directly on the roof. Before work began, Crooker met with Victor Misarti, MSU's Senior Project Manager, to discuss safety precautions being taken to protect the workers and passersby.
The two discussed barricading off walkways beneath where work was to be done, as well as the importance of securing ladders to the building and anchoring when on the roof. Misarti also discussed with plaintiff and the other workers the importance of wearing hardhats and being anchored at all times.
By January 26, the installation was approximately three-quarters complete. On January 27, MSU received fifteen-and-a-half inches of snow and no work was performed. The next day, upon arriving at the site, plaintiff observed "a lot of snow" on the roof. Plaintiff called Crooker and expressed his concerns regarding the amount of snow. According to plaintiff, Crooker told him to finish the job, no matter what, further stating "it's the end of the month . . . the money has to come in." Because the snow made him unable to stand directly on the roof, one of plaintiff's co-workers installed a "bracket" onto the roof, allowing plaintiff an area to stand and work.
Plaintiff began working in those areas of the roof that appeared to have less snow and continued the installation without incident. He then moved towards an area of the roof with accumulated snow. While standing on the bracket, plaintiff attempted to clear snow away from a portion of the roof so he could remove the tiles and anchor himself. This caused an avalanche, wherein all the snow from that area rapidly began sliding off the roof. Plaintiff unsuccessfully attempted to grab onto something, but was swept off the roof onto the ground three stories below. As a result of the fall, he suffered a fractured pelvis, and required treatment for vision, shoulder, back and jaw injuries.
Plaintiff filed suit against Cumberland and MSU, alleging the former intentionally created a dangerous condition by which he was injured, while the latter negligently supervised the project and failed to maintain a safe workplace. MSU subsequently moved for summary judgment on the ground it was immune from suit under the TCA, which plaintiff opposed. Following oral argument, the motion judge denied summary judgment, concluding disputed material facts existed regarding whether plaintiff could prevail pursuant to N.J.S.A. 49:4-2's "dangerous condition" exception to the TCA's general immunity for public entities. Applying the statutory factors for the exception, the judge held: snow on the roof could create a dangerous condition; the dangerous condition proximately caused plaintiff's injuries; the dangerous condition created a foreseeable risk of the type of injuries which occurred; Misarti, acting within the scope of his employment, could be found to have acted negligently or wrongfully in creating the dangerous condition or MSU had actual or constructive notice of the dangerous condition with sufficient time to prevent it and, finally, those acts or omissions could have been "palpably unreasonable."
Shortly thereafter, the court granted Cumberland's unopposed motion for summary judgment, thereby dismissing it from the case. The record before us does not disclose the basis for Cumberland's dismissal. --------
MSU moved for reconsideration of the denial of its summary judgment motion and, alternatively, a stay pending interlocutory appeal. After oral argument, the court denied both requests. We granted MSU's amended interlocutory motion for leave to appeal the denial of reconsideration.
II.
Motions for reconsideration of a final order are governed by Rule 4:49-2, and should be granted "only where '1) the [c]ourt has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the [c]ourt either did not consider, or failed to appreciate the significance of probative, competent evidence.'" Pitney Bowes Bank, Inc. v. ABC Caging Fulfillment, 440 N.J. Super. 378, 382 (App. Div. 2015) (alterations in original) (quoting Capital Fin. Co. of Del. Valley, Inc. v. Asterbadi, 398 N.J. Super. 299, 310 (App. Div.), certif. denied, 195 N.J. 521 (2008)). "We review [the trial court]'s decision on a reconsideration motion for an abuse of discretion," Giannakopoulos v. Mid State Mall, 438 N.J. Super. 595, 599 (App. Div. 2014), certif. denied, ___ N.J. ___ (2015), and will reverse only where the "'decision is made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" Pitney Bowes Bank, supra, 440 N.J. Super. at 382 (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002)).
Under the TCA, "a public entity is 'immune from tort liability unless there is a specific statutory provision' that makes it answerable for a negligent act or omission." Polzo v. Cnty. of Essex, 209 N.J. 51, 65 (2012) (quoting Kahrar v. Borough of Wallington, 171 N.J. 3, 10 (2002)); see also Dickson v. Twp. of Hamilton, 400 N.J. Super. 189, 195 (App. Div.) ("'[T]he dominant theme of the [TCA] is immunity, with liability as the exception.'" (first alteration in original) (quoting Massachi v. AHL Servs., Inc., 396 N.J. Super. 486, 495 (App. Div. 2007), certif. denied, 195 N.J. 419 (2008))), certif. denied, 196 N.J. 461 (2008).
N.J.S.A. 59:4-2 subjects a public entity to liability for an injury caused by a "dangerous condition" if the plaintiff establishes: (1) "the property was in a dangerous condition at the time of the injury"; (2) "the injury was proximately caused by the dangerous condition"; (3) "the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred"; and (4) either (a) the dangerous condition was caused by the negligence, omission or wrongful act of a public employee acting within the scope of his or her employment or (b) the "public entity had actual or constructive notice of the dangerous condition . . . a sufficient time prior to the injury to have taken measures to protect against the dangerous condition."
The TCA defines "dangerous condition" as "a condition of property that creates a substantial risk of injury when such property is used with due care in a manner in which it is reasonably foreseeable that it will be used." N.J.S.A. 59:4-1. Therefore, "[t]he dangerous condition[,] which is the predicate for liability under N.J.S.A. 59:4-2[,] must be . . . inherent in property owned or controlled by the public entity." Dickson, supra, 400 N.J. Super. at 196 (alterations in original) (citations and internal quotation marks omitted); see also Levin v. Cnty. of Salem, 133 N.J. 35, 44 (1993) ("[C]ourts have understood a 'dangerous condition' as defined in N.J.S.A. 59:4-1[(a)] to refer to the 'physical condition of the property itself and not to activities on the property.'" (quoting Sharra v. City of Atl. City, 199 N.J. Super. 535, 540 (App. Div. 1985))).
We note the distinction between N.J.S.A. 59:4-2(a), which speaks of a public employee's negligent act or omission that affirmatively creates a dangerous condition, and N.J.S.A. 59:4-2(b), which speaks of a public entity that is on notice of a dangerous condition — either actually or constructively — and fails to protect against it. A dangerous condition of property may be "created" if, for example, a public entity's snow plow creates a pothole or the entity's paving of a roadway is negligently performed. See, e.g., Tymczyszyn v. Columbus Gardens, 422 N.J. Super. 253, 264 (App. Div. 2011) (concluding a jury could find that defendant's negligent snow removal created icy sidewalk on which plaintiff fell), certif. denied, 209 N.J. 98 (2012); Atalese v. Long Beach Twp., 365 N.J. Super. 1, 6 (App. Div. 2003) (determining the public entity's creation of "a three-quarter inch difference in the level of the pavement" between a road and adjacent bike lane "could be accepted by a jury as creating a substantial risk of injury and hence a dangerous condition under the [TCA]"). But a public entity does not create a dangerous condition merely because it should have discovered and repaired it within a reasonable time before an accident.
The fact that the public entity did not create a dangerous condition does not, however, necessarily render it unaccountable under the TCA, since public-entity liability may also be based on the entity's actual or constructive notice of a dangerous condition. N.J.S.A. 59:4-3(a)'s definition of "actual notice" requires that the entity "had actual knowledge of the existence of the condition and knew or should have known of its dangerous character." A public entity has "constructive notice" "only if the plaintiff establishes that the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character." Ibid.
However, in no event is the public entity liable for a dangerous condition "if the action the entity took to protect against the condition or the failure to take such action was not palpably unreasonable." N.J.S.A. 59:4-2. In defining "palpably unreasonable," the Court has concluded: "'[F]or a public entity to have acted . . . in a manner that is palpably unreasonable, it must be manifest and obvious that no prudent person would approve of its course of action or inaction.'" Ogborne v. Mercer Cemetery Corp., 197 N.J. 448, 459 (2009) (first alteration in original) (quoting Kolitch v. Lindedahl, 100 N.J. 485, 493 (1985)).
Here, plaintiff's proofs failed to establish the statutory requirements for imposing liability on a public entity for an injury caused by the snow on the roof. First, the accumulation of snow — even fifteen-and-a-half inches — on the building's roof is not "inherent in [the] property owned or controlled by the public entity." Dickson, supra, 400 N.J. Super. at 196 (citations and internal quotation marks omitted). Therefore, MSU's property contained no "dangerous condition" as statutorily defined. Furthermore, MSU did not affirmatively create the situation which led to plaintiff's injury. For example, it did not negligently clear the snow from the roof or improperly affix safety equipment.
Nor was the presence of snow on the roof "for such a period of time and . . . of such an obvious nature" that MSU was on constructive notice of any risk. N.J.S.A. 59:4-3. No work was performed on the day of the storm and, the day of plaintiff's injury, work began at approximately 10:00 a.m., which was insufficient time to suggest MSU was on constructive notice of the conditions that day. Lastly, MSU did not act palpably unreasonably in expecting Cumberland to exercise its judgment and ensure safe working procedures consistent with all pertinent safety regulations. See Muhammad v. N.J. Transit, 176 N.J. 185, 199 (2003) (holding it was not palpably unreasonable for public entity to expect a private contractor "would inform its employees of the dangers inherent to the project"). As such, we hold the facts of this case do not fall within N.J.S.A. 59:4-2's narrow exception to the TCA's general immunity for "dangerous conditions."
Plaintiff also contends MSU had a contractual duty to him of safeguarding the workplace and it breached that duty which resulted in his injuries. Although N.J.S.A. 59:2-2 provides for public-entity liability "for injury proximately caused by an act or omission of a public employee within the scope of his employment," we recently recognized that a landowner owes no duty to the employees of independent contractors to make its premises safe from "'known hazards which are part of or incidental to the very work the contractor was hired to perform.'" Nielsen v. Wal-Mart Store #2171, 429 N.J. Super. 251, 264-65 (App. Div.) (quoting Olivo v. Owens-Illinois, Inc., 186 N.J. 394, 407 (2006)), certif. denied, 213 N.J. 535 (2013).
"This exception to the landowner's general duty exists because '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.'" Olivo, supra, 186 N.J. at 407 (brackets omitted) (quoting Muhammad, supra, 176 N.J. at 199); accord Tarabokia v. Structure Tone, 429 N.J. Super. 103, 113 (App. Div. 2012) ("[A] . . . contractor 'may assume that the independent contractor and [its] employees are sufficiently skilled to recognize the dangers associated with their task and adjust their methods accordingly to ensure their own safety.'" (quoting Accardi v. Enviro-Pak Sys. Co., 317 N.J. Super. 457, 463 (App. Div.), certif. denied, 158 N.J. 685 (1999))), certif. denied, 213 N.J. 534 (2013). "The exception only applies, however, when 'the landowner does not retain control over the means and methods of the execution of the project.'" Olivo, supra, 186 N.J. at 407 (quoting Muhammad, supra, 176 N.J. at 198).
Nevertheless, plaintiff argues the Court's decision in Pfenninger v. Hunterdon Central Regional High School, 167 N.J. 230 (2001), compels MSU's liability. In Pfenninger, the Court instructed "in a contractual relationship, an individual may be liable in tort if he or she undertakes 'gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other's person or things.'" Id. at 241 (quoting Restatement (Second) of Torts § 323 (1965)).
Here, the Safety Program set forth in the agreement required Cumberland to employ safe methods and comply with federal, state and local safety regulations. It also provided one of MSU's "primary responsibilities is to provide oversight for a comprehensive Safety Program for this Project." (Emphasis added). The Safety Program authorized Misarti, MSU's project safety coordinator, to make regular safety inspections and "implement immediate corrective action regarding noncompliance" with the Safety Program or pertinent regulations. However, the retention of only such general superintendence as is necessary to ensure that the work is performed safely in accordance with the agreement, is insufficient to subject MSU to liability for the contractor's negligence. Giroud v. Stryker Transp. Co., 104 N.J.L. 424, 427 (E. & A. 1928); Bergguist v. Penterman, 46 N.J. Super. 74, 85-86 (App. Div.), certif. denied, 25 N.J. 55 (1957); Trecartin v. Mahony-Troast Constr. Co., 18 N.J. Super. 380, 386-89 (App. Div. 1952).
Plaintiff cites the Safety Program in the agreement for the proposition that MSU retained the right to control the manner of doing the work. The Safety Program does not indicate that MSU or Misarti were to supervise the method of installation to be followed. To the contrary, the agreement provided only general supervisory authority as was necessary to ensure that the work was performed safely. MSU hired Cumberland, an independent contractor, to install snow guards on the College Hall Building. The project inherently involved dangerous work on the roof. Contrary to plaintiff's assertions, MSU had no right to control or direct the day-to-day operation of the work. It neither provided the materials (unlike in Pfenninger) or equipment, determined on what days work was to be done, nor controlled the actions of plaintiff or Cumberland's other employees. It was Crooker, not MSU, who insisted work resume on January 28, even though a week remained before the contractual period for completing the project expired. Therefore, MSU owed no contractual or other duty to make the roof safe for plaintiff. See Nielsen, supra, 429 N.J. Super. at 264-65.
For these reasons, we conclude the trial judge "inexplicably departed from established policies" in denying MSU's motion for reconsideration, thereby resting its denial "on an impermissible basis." Pitney Bowes Bank, supra, 440 N.J. Super. at 382 (citation and internal quotation marks omitted).
Reversed and remanded for entry of summary judgment in favor of MSU. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION