The opinion of the court was delivered by: Cuff, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and Lesemann.
On appeal from Superior Court, Law Division, Middlesex County.
Following two days of trial, plaintiff's claim against defendants IKEA USA (IKEA) and Ultimate Services, Inc. (USI), IKEA's janitorial service, was dismissed at the close of plaintiff's case. The trial judge found that plaintiff had failed to submit any evidence of actual or constructive notice of the condition which caused his fall. At the same time, the trial judge ruled in favor of IKEA's insurance carrier, third-party defendant Reliance National Indemnity Company (Reliance), in IKEA's declaratory judgment action seeking indemnification. We reverse the involuntary dismissal of plaintiff's claims against defendants and remand for trial. We affirm the order in favor of third-party defendant Reliance.
Plaintiff John Craggan, Jr. is an independent contractor delivering home furniture and other related items to customers pursuant to contracts with home delivery service companies. He has owned Craggan Trucking, Inc. since 1990. In 1993, plaintiff entered into a contract with Merchants Home Delivery Service which served defendant IKEA. By early 1995, plaintiff was delivering almost exclusively for IKEA.
Around the end of February or beginning of March 1995, a delivery pick up and loading method was implemented at IKEA. Generally, plaintiff would pick up "knock down goods" (unassembled furniture that comes inside a flat box), as well as sofas, mattresses and chairs to deliver to customers who bought the goods. IKEA had a customer pick up area in the parking lot with an overhang to protect the merchandise from the outside elements. The merchandise was staged on pallets in these areas for pick up.
The loading area contained removable and stationary metal railings positioned to prevent cars from entering under the canopy area where the contractors load their trucks. Near the stationary railings are approximately ten to twelve yellow boxes, which contain string to assist customers in securing merchandise in the trunk or on the roof of their cars. Plaintiff claimed he never used the string when loading his truck and had never observed other truck drivers or their assistants use the string. Plaintiff asserted that truckers have "no use for that string" because they do not "tie down anything"; if anything needs to be tied down, truckers use nylon webbing in the form of straps.
Plaintiff usually loaded and delivered approximately sixteen to twenty pallets of merchandise on any given delivery day. When loading, plaintiff removed nylon strapping and cellophane placed on the pallet to secure the merchandise. This strapping and cellophane material was discarded in rolling garbage cans located around the loading area. Plaintiff was one of approximately a dozen other contractors who picked up and delivered merchandise for IKEA. Often, IKEA personnel were present moving merchandise into the loading area via forklift. Plaintiff asserted that ordinarily neither IKEA nor USI personnel cleaned the loading area while trucks were loading.
On July 18, 1995, plaintiff arrived at IKEA with his driver and assistant, Tim Dugan, around 6:05 a.m. for a pick up. Upon arrival, plaintiff spoke with Luke Dempsey, an IKEA supervisor, to take care of paperwork. Plaintiff then directed Dugan where to park the truck for loading. Plaintiff claimed that he was one of the first trucks to arrive at IKEA that morning. Plaintiff had approximately seventeen pallets of furniture to load that day. Plaintiff explained the loading process: he would remove the strapping and cellophane from the merchandise with a razor knife, place the removed materials into the garbage bin, lift the item from the pallet onto his shoulder and hand it up to Dugan who was in the truck organizing the merchandise for delivery.
Around 6:30-6:40 a.m., while loading the eighth piece of merchandise into his truck, plaintiff fell. He claimed he picked up the merchandise from the pallet, placed it over his shoulder, took two steps and "felt something restrict [his] feet" causing him to fall. As he fell, he collided with portable railings leaning against the overhang. His right leg became "situated" between the two railings. Once on the ground, plaintiff realized his feet were entangled in the string from the yellow boxes left out for customer use. About thirty feet of the string was outside the box, coiled loosely in a ball resting about six to seven feet to the right of the truck. He claimed he did not notice any string in the area outside that yellow box where he was loading prior to his fall. He also admitted that he had "absolutely no idea how long or when that string came onto the ground." He had not used the box of string, nor had he observed anyone else use the box of string that morning.
Dugan, who participated in the loading process that day, did not observe the string prior to plaintiff's fall. In fact, Dugan did not observe plaintiff fall; he was inside the truck organizing the merchandise. Rather, he heard a "clang," "crash," and "yelling," ran to the back of the truck and saw plaintiff on the ground with his feet entangled in string and his legs wedged between railings which had fallen.
At trial, plaintiff also introduced deposition testimony of defendant USI's executive vice president, Richard J. Goldring. Goldring was the USI site supervisor for IKEA. He testified that USI provided janitorial services to IKEA and was responsible to clean and inspect the customer loading area. Typically, USI came to IKEA around 7:30 a.m. to clean and sweep the loading area after the early morning rush of merchandise pick-ups. USI then returned after 7:30 p.m. that same day and stayed until closing to clean and do a final sweep and inspection of the area between 9 and 9:30 p.m. Goldring testified only as to the general process of the services provided. There was no testimony concerning the condition of IKEA's loading area the night before plaintiff's accident, or the cleaning activities actually performed the night prior.
After the close of plaintiff's case, defendants moved for an involuntary dismissal pursuant to R. 4:37-2(b). Defendant IKEA argued that in order for it to be liable for negligence, it had to have notice that the string was loose in the loading area and created a dangerous condition for independent contractors or customers. It argued that plaintiff failed to make a prima facie case that defendant had either actual or constructive notice of a dangerous condition. Defendant USI joined in the motion for involuntary dismissal. It argued that ...