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Roman v. Mitchell

Decided: January 11, 1979.

MICHAEL ROMAN, AN INFANT, BY HIS GUARDIAN AD LITEM, CAROL ROMAN, AND CAROL ROMAN, INDIVIDUALLY, PLAINTIFFS-APPELLANTS,
v.
ROBERT MITCHELL, JR., SHERMAN WADE, JR. AND SALVATERRA CONSTRUCTION COMPANY, DEFENDANTS-RESPONDENTS



On appeal from Superior Court, Law Division, Union County.

Fritz, Bischoff and Morgan.

Per Curiam

Plaintiffs, a mother and her 12-year-old son, sued defendants for damages arising out of injuries to the son. The accident occurred when rear wheels of a truck owned by defendant Robert Mitchell, Jr. and driven by defendant Sherman Wade, Jr. fell off and struck the boy while he was standing with his bicycle on the shoulder of the New Jersey Turnpike. Defendant Salvaterra Construction Company was alleged to have been liable as the employer of defendant Wade. During the trial the action was dismissed as to defendants Salvaterra and Wade, the only issue remaining being whether defendant Mitchell was negligent in inspecting the lug nuts of his truck, thereby causing the wheels to separate from the truck. Defendant's theory was that the boy was contributorily negligent in being on the turnpike.

In response to special interrogatories the jury found defendant to have been 25% negligent and plaintiff 75% negligent. Accordingly, the judge molded the verdict under the Comparative Negligence Act and entered judgment for defendant.

Plaintiffs' motions for a judgment n.o.v. and for a new trial were denied. They appeal and argue that the conduct of the infant plaintiff was not a proximate cause of the accident and that there was insufficient evidence to support the jury finding of 75% comparative negligence on the part of the infant plaintiff. We disagree. The finding

that plaintiff's conduct was 75% of the negligence and a proximate cause of the accident is supported by the evidence, and we will not disturb that finding of the jury or the trial judge's denial of the motions for that reason. Dolson v. Anastasia , 55 N.J. 2 (1969).

Plaintiff also contends that the trial judge erred in dismissing the action against Wade and Salvaterra Construction Company. Defendant Mitchell was the owner of the truck. At the time of the accident he was employed by Salvaterra Construction Company as a mason foreman. Under an informal agreement between Mitchell and Salvaterra, Mitchell would lend his truck to Salvaterra for use on any job where Mitchell was employed as foreman. On the day of the accident, a Saturday, Salvaterra requested and was granted use of Mitchell's truck on a job where Mitchell was not employed. This was the first time this had occurred. Salvaterra sent its employee Wade to drive the truck. Mitchell testified at trial that it was his responsibility alone to inspect and maintain the truck and that Salvaterra was not obligated in any way to monitor the truck's condition. Mitchell testified that he made regular inspections of the truck's equipment and that he would specifically check the lug nuts every two or three weeks. He estimated that the lug nuts had been inspected from one to two weeks before the accident.

At trial and in their brief on appeal plaintiffs sought to impose liability on Salvaterra and Wade on the theory of respondeat superior , arguing that both Wade and Mitchell were employees of Salvaterra. At oral argument plaintiffs for the first time suggested that there was an affirmative duty on both Wade and Salvaterra to personally inspect the vehicle and, in particular, the lug nuts on the wheels to be certain they were tight and that the vehicle was safe to operate. They contend the jury could find liability based on a breach of that duty in addition to the theory of respondeat superior.

We agree with the trial judge's ruling that neither Wade nor Salvaterra could be bound by the theory of respondeat superior. On the day of the accident Mitchell gratuitously loaned the truck to Salvaterra to be operated by another employee of Salvaterra. It was not used in connection with any job on which Mitchell was employed or with which he was connected. Mitchell's general employment by Salvaterra is not enough of a link to form the basis for imputing to Salvaterra or to Wade any negligence of which Mitchell might have been guilty in the maintenance of the truck. Wright v. Globe Porcelain Co. , 72 N.J. Super. 414, 418 (App. Div. 1962); cf. Gilborges v. Wallace , 78 N.J. 342 (1978).

Nor is plaintiff aided by espousing the theory that both Salvaterra and Wade had a separate affirmative obligation to inspect the truck to determine if the lug nuts were properly tightened.

The only allegation of negligence in the case is the alleged failure to discover the loose lug nuts and tighten them. The jury determined that this negligent act constituted 25% of the entire negligence causing the accident. That percentage cannot be increased by holding that one, three or ten persons are ...


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