B. Choice of Law
As a federal court sitting in diversity, we apply the choice-of-law principles of the forum state. Klaxon v. Stentor Elec. Mfg. Co., 313 U.S. 487, 85 L. Ed. 1477, 61 S. Ct. 1020 (1941). New Jersey has rejected the traditional rule of lex loci delicti in favor of the more flexible governmental-interest analysis in choice-of-law decisions. See, e.g., State Farm Mutual Ins. Co. v. Estate of Simmons, 84 N.J. 28, 34, 36, 417 A.2d 488 (1980). Under that analysis, the court must first determine whether a conflict exists between the laws of the interested states.
If one exists, the court undertakes a qualitative analysis of the governmental policies underlying the laws of each state and of the contacts between the states and the litigants. See Veazey v. Doremus, 103 N.J. 244, 248, 510 A.2d 1187 (1986), and cases cited therein.
In the absence of a conflict, the district court applies the law of the forum state. Schum v. Bailey, 578 F.2d 493, 497 (3d Cir. 1978); Hiller v. Franklin Mint, Inc., 485 F.2d 48 (3d Cir. 1973); see also Restatement (Second), Conflict of Laws, § 136, cmt. h; Eugene F. Scoles & Peter Hay, Conflict of Laws § 2.6 at 17, § 12.19; cf. N.J.S.A. 2A:82-27 (discussing requirements for judicial notice of foreign law; noting that where parties have failed to present such law, presumption arises that such law is the same as that of New Jersey). The parties in this case have presented no evidence of conflict between the laws of Jamaica, Florida, and New Jersey on the issue of the liability of a landowner for the negligent acts of an independently-hired security guard, and we will therefore rely on the law of New Jersey in analyzing of the issue.
C. Liability under New Jersey Law for the Negligent Acts of an Independent Contractor
The general rule in New Jersey, as in most jurisdictions, is that an owner who hires an independent contractor is not liable for the negligence of that contractor and any harm resulting therefrom. O'Keefe v. Sprout-Bauer, Inc., 970 F.2d 1244 (3d Cir. 1992). "Ordinarily, where a person engages a contractor, who conducts an independent business by means of his own employees, to do work not in itself a nuisance (as our cases put it), he is not liable for the negligent acts of the contractor in the performance of the contract." Majestic Realty Associates v. Toti Contracting Co., 30 N.J. 425, 431, 153 A.2d 321, 324 (1959); see also id. and cases cited therein. New Jersey courts recognize exceptions to this rule where (1) the landowner retains control of the manner and means of the doing of the work which is the subject of the contract, (2) he knowingly engages an incompetent contractor, or (3) the activity contracted for constitutes a nuisance per se. Id.; see also Cassano v. Aschoff, 226 N.J. Super. 110, 543 A.2d 973, 975 (App.Div.), certif. denied, 113 N.J. 371, 550 A.2d 476 (1988).
In the previous motion for summary judgment, plaintiffs argued that Camm was liable under the "incompetent contractor" exception because of Northern Security's lapsed insurance coverage.
See generally Majestic Realty, 30 N.J. at 431-32; see also Terranella v. Union Bldg. & Construction Co., 3 N.J. 443, 446, 447, 70 A.2d 753 (1950); Izhaky v. Jamesway Corp., 195 N.J. Super. 103, 478 A.2d 416 (App.Div. 1984). However, plaintiffs' argument was rejected in a recent decision of the Third Circuit which held that "under New Jersey law, one . . . who hires an independent contractor who is uninsured, or financially unable to pay tort judgments . . . [is not, without more] liable in tort for that independent contractor's negligence under New Jersey's 'incompetent contractor' exception to the general rule against such imputed liability." Robinson v. Jiffy Executive Limousine Co., 4 F.3d 237 (3d Cir. 1993), overruling Becker v. Interstate Properties, 569 F.2d 1203 (3d Cir. 1977), cert. denied, 436 U.S. 906, 56 L. Ed. 2d 404, 98 S. Ct. 2237 (1978).
Plaintiffs now argue that the defendant had a non-delegable duty to protect guests from harm that renders him vicariously liable for the negligent acts of the security guard. In the remainder of the opinion, we will examine those provisions of the Restatement (Second) of Torts that address the vicarious liability of an employer for the negligence of an independent contractor, to determine whether a non-delegable duty exists on the facts of this case.
D. Vicarious Liability Under the Restatement
1. The General Rule and Its Exceptions
Section 409 of the Restatement (Second) of Torts sets forth the general rule of non-liability of an employer for physical harm caused to another by the act or omission of an independent contractor. The rationale behind the rule is discussed in the accompanying commentary:
The explanation for [the rule of non-liability] most commonly given is that, since the employer has no power of control over the manner in which the work is to be done by the contractor, it is to be regarded as the contractor's own enterprise, and he, rather than the employer, is the proper party to be charged with the responsibility of preventing the risk, and bearing and distributing it.