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Gilborges v. Wallace

Decided: September 22, 1977.


Lynch, Milmed and Antell. The opinion of the majority was delivered by Lynch, P.J.A.D. Antell, J.A.D. (dissenting).


On December 7, 1973 the 16-year-old plaintiff Rosemarie Gilborges (hereafter Rosemarie), while a passenger in an automobile driven by defendant Linda Giannini (hereafter Linda) and owned by Anthony F. Giannini, was seriously injured*fn2 as a result of a collision of the Giannini car with a truck driven by defendant John Wallace (hereafter Wallace) and owned by defendant Cross Country Express, Inc. (hereafter Cross Country). The accident occurred at the intersection of Route 73 and Old Fork Landing Road, in Cinnaminson Township. The intersection was controlled by a traffic light and the drivers, Linda and Wallace, respectively claimed that each had the green light at the intersection.

On January 15, 1974 plaintiffs first filed a complaint against defendants Linda, Anthony Giannini, Wallace, Cross Country and 3rd Down Auto Body. On October 23, 1974, after receiving permission to file a late claim pursuant to the Tort Claims Act (N.J.S.A. 59:8-9) against the Board of Education of Maple Shade (hereafter Board), an amended complaint was filed adding it as a defendant.

The claim against the Board was based upon an allegation that at the time of the accident Linda was acting as

its agent and servant in that she, with plaintiff Rosemarie and two other girls as passengers, was returning from Cinnaminson High School on a trip sponsored by Maple Shade High School as a function of a Distributive Education class in which the girls were students.*fn3

Prior to trial plaintiffs moved for partial summary judgment on the issue of agency of Linda on behalf of the Board. The trial judge determined that an agency relationship did exist between them and summary judgment to that effect was entered, thus generating one of the principal issues here.

Trial was held from June 18 to July 3, 1975 and resulted in a verdict in favor of plaintiff Rosemarie (by her guardians ad litem) in the amount of $1,000,000 against Wallace and Linda individually and the Board by reason of her "agency." Wallace was found to be negligent to the extent of 80% and Linda (and the Board as her principal) to the extent of 20%. Pursuant to those findings a judgment in favor of plaintiffs and against Linda and the Board was entered in the amount of $200,000 and against Wallace in the amount of $800,000.

The Board appeals and defendant Linda cross-appeals.

The contentions of the respective parties on appeal will be considered seriatim.


The contentions of the Board

As stated in its brief, the Board contends that:

Point I -- The granting of a motion for summary judgment on the issue of agency was reversible error;

Point II -- The finding of 20% negligence on the part of Linda A. Giannini, as agent of the Board of Education, is against the weight of the evidence;

Point III -- The admission into evidence of the testimony of Dr. Leshner and Mr. Goodfarb resulted in plain error;

Point IV -- It was plain and prejudicial error to permit the plaintiff's vocational expert, Dr. Leshner and/or plaintiff's actuary, Mr. Goodfarb, to place before the jury gross dollar total amounts of future pecuniary loss;

Point V -- The Court's charge when read in its entirety constitutes plain and reversible error;

Point VI -- The summation of plaintiff's counsel was rife with unprofessional conduct and techniques condemned by our Supreme Court;

Point VII -- A public entity is not responsible to pay more than its jury-determined share of a comparative negligence award.

The summary judgment establishing Linda as agent of the Board

In granting the partial summary judgment declaring that Linda was the "agent" of the Board in the operation of her car at the time of the accident the judge based his conclusion on a finding of fact that she was in such relationship. In the colloquy on the motion he made reference to plaintiffs' requests pursuant to R. 4:22-1 that the Board admit that Linda was its agent. The judge referred to what he termed the Board's "failure to answer the request for admission on the subject of agency." In stating his conclusions on the motion he made no reference to the Board's alleged failure to answer the requests and it therefore might be said that it was not a factor in the granting of summary judgment. However in colloquy on the argument of the motion the judge had said that plaintiffs' requests went "right to the heart of the issue, and there is no answer to it." (Emphasis supplied.)

It is true that the requests had not been answered by the Board within the 30-day time limitation set forth in

R. 4:22-1, namely by March 10, 1975. But it was simply not so that there was "no answer to it" at the time of the argument on the motion on May 16, 1975. On April 10, 1975, 41 days before the argument, the Board had filed its denial of agency. Request No. 6 read:

That on the date of the accident alleged in the Complaint the defendant Linda Giannini was required to be a student in the Maple Shade High School from 9:00 a.m. to 1:00 p.m.

(a) That during those hours the defendant, Linda Giannini, was under the direct supervision and control of the administrative personnel, teaching personnel, principals, vice-principal and the like of the Maple Shade High School. [Emphasis supplied]

The Board's April 10, 1975 answer to the foregoing request was:

6. We are unable to admit or deny Miss Giannini's school hours at this time as we are still waiting for her class schedule from the school.

Subsection (a) is specifically denied. [Emphasis supplied]

Request No. 8 demanded that the Board admit:

That on December 7, 1973, one of the defendant Linda Giannini's instructors directed her to drive to Cinnaminson High School during the course of her school day.

And the Board's answer to No. 8 was:

8. Denied.

Thus, contrary to the dissent's statement that "as matters stood at the time of the motion Linda's 'agency' was judicially admitted", it had been "specifically" denied. The trial judge took no notice of that denial despite counsel's reminder to that effect. Since, therefore, there existed a genuine issue of material fact from the "admissions on file," summary judgment was precluded. R. 4:46-2.

It is true, as we have said, that the Board's denial was late. But we take issue with the dissent in asserting that to accept the denial out-of-time "goes to the very integrity of the system." And it is saying less than need be said to assert: "Either our Rules mean what they say or they do not * * *." Our "system" is first and foremost a system of justice, not to be frustrated by mechanical application of rules. And when we consider our rules we must consider all of them, including that which provides that "any rule may be relaxed and dispensed with by the court * * * if adherence to it would result in an injustice." R. 1:1-2. Thus it has been said by our Supreme Court: "Rules of court are mechanical aids to the administration of justice; they are designed to effectuate substantive rights, and to this end they are subject to relaxation where their enforcement would work 'surprise or injustice.'" Sattelberger v. Telep , 14 N.J. 353, 363 (1954). And by this court, per Goldmann, P.J.A.D.: "The rules are to be construed to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay. They are a means to justice, and not an end in themselves; their purpose is to provide for a just determination of every proceeding." (Emphasis supplied.) State v. Emmett , 108 N.J. Super. 322, 325 (App. Div. 1970). And this is particularly true where the public interest is involved. Cf. Elizabeth Bd. of Ed. v. Elizabeth City Council , 55 N.J. 501, 505 (1970); DeSimone v. Greater Englewood Housing Corp. No. 1 , 56 N.J. 428, 434 (1970). Here the issue of the Board's liability for the acts of a student to the extent of a million dollar verdict was a matter of public interest and it was not to be disposed of by a failure to notice that agency had in fact been denied by the Board.

Further, the rule governing consideration of requests for admissions itself recognizes its subservience to consideration of the merits. It provides that the court may permit amendment of an admission "when the presentation of the merits of the action will be subserved thereby and the

party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action or defense in the merits." R. 4:22-2. There was no showing of prejudice by plaintiffs here if the Board's denial were to be accepted as within time, and it was an abuse of discretion not to accept it pursuant to R. 4:22-2.

We note also that plaintiffs' motion for summary judgment on the issue of agency was principally based on the depositions of Linda, her classmate Darlene Doddier (Darlene), who was a passenger in the car at the time of the accident, and Joel Grennor, the teacher of Distributive Education at Maple Shade High School in whose class in that subject plaintiff Rosemarie Gilborges, Linda and Darlene were students.

Linda's deposition was taken on July 18, 1974 before the Board became a party to the action by amendment of the complaint on October 23, 1974. Consequently, the Board was not represented by counsel at the taking of that deposition. When the Board was later made a party its counsel did not move to reopen the deposition. However, considering the leading nature of the questions asked of Linda by plaintiffs' attorney and the factual basis elicited thereby in support of the existence of the alleged "agency" relationship, we conclude that the circumstance of counsel's failure to move for reopening of the depositions does not outweigh the prejudice created by the nature of such questioning in the absence of counsel for the Board, and it is outweighed by the primary objective of considering the merits of the issue in the interest of justice.

On the merits we determine that the entry of the partial summary judgment establishing Linda as "agent" of the Board was erroneous.

Summary judgment is not to be granted unless it is clearly shown that there exists no genuine issue of material fact. It is the movant's burden to exclude any reasonable doubt as to existence of such issue and all inferences of doubt are

to be drawn against the movant. Judson v. Peoples Bank & Trust Co. of Westfield , 17 N.J. 67 (1954).

We do not deem it necessary to discuss analytically whether the relationship here disputed is one of "agency" or one of "master and servant," a dichotomy discussed at some length by the Board in this appeal. We are satisfied that it clearly is the latter, for the issue is whether the Board is vicariously liable for the negligence, if any, of Linda in the operation of her car. See Mechem, Outlines of Agency (4 ed. 1952), §§ 12, 13, 412 et seq. The question remains whether Linda was in fact and law the servant of the Board when she operated her car at the time of the accident.

In Andryishyn v. Ballinger , 61 N.J. Super. 386 (App. Div.) certif. den. 33 N.J. 120 (1960), it is said:

Generally speaking, whether a person who performs services for another is a servant or an independent contractor depends upon the control which the employer exercises or retains the right to exercise over the manner in which the worker performs his services. 1 Restatement, Agency 2d, § 220(1), p. 485, and comment, pp. 486-489 (1958); Galler v. Slurzberg , 22 N.J. Super. 477, 487 (App. Div. 1952); Ibid. , 31 N.J. Super. 314, 324 (App. Div. 1954), affirmed per curiam , 18 N.J. 466 (1955); 2 C.J.S. Agency § 2 d, pp. 1027-1028 (1963) and 56 C.J.S. Master and Servant § 2 d, pp. 32-37 (1948). The relationship of master and servant is not capable of exact definition. 1 Restatement, Agency 2d, § 220(2), pp. 485-486, lists various factors that may be considered in determining whether one who acts for another is a servant or an independent contractor. Control is only one of them, albeit usually considered the principal one. It has been said that when the manner of performing the service is beyond another's control because of its nature, absence of direct control over such details may become significant in the overall view of the facts and the circumstances to be taken into account in determining the relationship. DeMonaco v. Renton , 18 N.J. 352, 357 (1955) (newsboy), quoting from Hearst Publications v. United States , 70 F. Supp. 666 (D.C. Cal. 1946), affirmed 168 F.2d 751 (9 Cir. 1947); Hannigan v. Goldfarb , 53 N.J. Super. 190, 196 (App. Div. 1958) (taxicab driver). Whether Ballinger was, in fact, an employee of Bayonne Block Co. must be determined in the light of the totality of the facts surrounding the relationship. [at 391]

And in Miklos v. Liberty Coach Co. , 48 N.J. Super. 591 (App. Div. 1958), it was said:

"Servant" denotes, if anything, an emphasis on the subordinate character of the agent for service to the principal party defendant -- a subservience characteristic of the master-servant relation. "Servant" has been defined as "a person employed to perform service for another in his affairs and who, with respect to his physical conduct in the performance of the service, is subject to the other's control or right to control." Restatement, Agency , § 220, p. 483 (1933). In determining whether one acting for another is a servant or an independent contractor, the following elements are to be considered, among others: (1) the extent of control which, by agreement, the master may exercise over the details of the work; (2) whether or not one so employed is engaged in a distinct occupation or business; (3) 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; (4) the skill required in the particular activity; (5) whether the employer or the person doing the work supplies the instrumentalities, tools and the place of work; (6) the length of time for which the person is employed; (7) the method of payment; (8) whether or not the work is part of the regular business of the employer; and (9) whether or not the parties believe they are in the relationship of master and servant. Ibid. , and comments, pp. 486-493. Generally, see Mechem, Outlines of the Law of Agency (4 th ed. 1952) §§ 413-415, pp. 280-281. [at 602]

And in Annotation, "Schools -- Tort Liability -- Student's Acts," 36 A.L.R. 3d 330, 339 (1971), it is said:

Generally speaking, a school district, school board, or other agency or authority in charge of public schools or a public institution of higher learning is not liable, as such, for acts or omissions of pupils or students, since usually no relationship of respondeat superior exists between the district, agency or authority on the one hand, and the pupils or students on the other.

See also Annotation, "Private Schools -- Torts -- Supervision," 39 A.L.R. 3d 908, 915 (1971).

Whether the relationship of respondeat superior exists here remains to be determined.

In consideration of that issue note may be taken of several factors which may be contraindicative of a masterservant relationship in the circumstances of this case: the fact that the "instrumentality" -- the automobile -- was owned not by the Board but by Linda's father; the fact ...

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