On appeal from Superior Court of New Jersey, Law Division, Morris County, Docket No. L-719-99.
Before Judges Conley, Newman and Carchman.
The opinion of the court was delivered by: Carchman, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
In this appeal, we address the duty of a delivery person to notify a possessor of land of a dangerous condition caused by the actions of the delivery person. We conclude that where a beer delivery person tracked in an inordinate amount of snow to create a pool of water covering an area of approximately five feet at a depth of one-eighth inch, the delivery person owed a duty to notify the possessor of such condition. We reverse the order of the Law Division dismissing the complaint.
These are the relevant facts. On March 17, 1997, at approximately noon and during the "lunchtime rush," plaintiff Joseph La Russa, a bartender and waiter at the Sheraton Hotel, was walking from the lounge area of the hotel to the kitchen when he slipped and fell in a puddle of water "five feet in area" and one-eighth of an inch deep, located directly in front of the walk-in beer cooler near the entrance to the kitchen. The floor in this area was covered with ceramic tile. The weather conditions outside were "icy, snowy, [and] rainy."
Plaintiff had noticed the delivery person, Scott Thomas Rogers, employed by defendant High Grade Beverage Corp., tracking in snow with his hand truck approximately twenty-five minutes before plaintiff fell, and alerted Rogers to the accumulation of snow. Rogers did not respond. Although it was the responsibility of all hotel employees to clean up spills on the hotel premises, plaintiff neither reported the existence of snow to anyone at the hotel nor cleaned the area himself.
Rogers, who had no independent recollection of the delivery or incident, admitted that his hand truck would track in snow or debris during a snow storm. He did not believe it was his responsibility to clear away a "pile of snow or a little bit of water" even if he tracked it in nor considered it his responsibility to notify anyone on the premises that he had brought in snow or water. As he explained, "It is generally acknowledged that I am there to make a delivery. Just like if the snow was not shoveled, I am not shoveling the snow. If I can make the delivery, I make it; and then if I can't, I can't." Rogers did concede that he would meet an employee on duty before making the delivery, who would then direct him where to deliver the goods.
We address the issue of duty recognizing that whether a person owes a duty of reasonable care toward another is a question of law. Clohesy v. Food Circus Supermarkets, Inc., 149 N.J. 496, 502 (1997); Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439 (1993); Wang v. Allstate Ins. Co., 125 N.J. 2, 15 (1991); Sanchez v. Indep. Bus Co., Inc., __ N.J. Super. __, __ (App. Div. 2003) (slip op. at 5).
The imposition of a duty requires a balancing of competing interests and considerations. In determining whether to impose a duty, we must engage in a rather complex analysis that weighs and balances several, related factors, including the nature of the underlying risk of harm, that is, its foreseeability and severity, the opportunity and ability to exercise care to prevent the harm, the comparative interests of, and the relationships between or among, the parties, and, ultimately, based on considerations of public policy and fairness, the societal interest in the proposed solution. See Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439, 625 A.2d 1110 (1993). [J.S. v. R.T.H., 155 N.J. 330, 337 (1998).]
Our analysis is fact-specific and "must lead to solutions that properly and fairly resolve the specific case and generate intelligible and sensible rules to govern future conduct." Hopkins, supra, 132 N.J. at 439; Sanchez, supra, __ N.J. Super. at __ (slip op. at 6). In determining whether to impose a duty, we "must also consider the scope or boundaries of that duty." J.S., supra, 155 N.J. at 339 (citing Kelly v. Gwinnell, 96 N.J. 538, 552 (1984)).
We impose a duty where foreseeable events posing a risk of harm necessitate that a duty of due care be imposed on those able to prevent the harm. Included within the scope of that duty is the obligation to warn of a known or apparent danger. See, e.g., Clohesy, supra, 149 N.J. at 514-16 (imposing a duty on the owner of a supermarket to provide security or warnings in his parking lot to protect customers where there had been a large number of criminal incidents on his premises the previous two-and-a-half years); Wlasiuk v. McElwee, 334 N.J. Super. 661 (App. Div. 2000) (imposing a duty of care and warning on a driver who allowed a stranger to ride in his car where his passenger was shot by the stranger as it was foreseeable that allowing a stranger to ride in the vehicle would lead to danger). See also J.S., supra, 155 N.J. at 352 (imposing a duty on the wife of a sex offender to prevent or warn her neighbors of her husband's sexual abuse or propensity for sexual abuse); James v. Arms Tech., Inc., __ N.J. Super. __, __ (App. Div. 2003) (slip op. at 36-37) (imposing a duty on gun manufacturers of a more supervised scheme of distribution of weapons sold in Newark as it was foreseeable that the misuse of handguns would result in large costs to the city). Even the simplest gesture, such as a friendly wave by a motorist signaling another motorist to pull out in front of him, created a duty of care as it was reasonably foreseeable that the driver waved into traffic would rely on the gesture, and the risk of harm from any resulting accidents would be "serious." Thorne v. Miller, 317 N.J. Super. 554, 559 (Law Div. 1998). We have declined to impose a duty where the circumstances were so remote that the imposition of such duty would impose an unfair burden. See, e.g., Taylor ex rel. Taylor v Cutler, 306 N.J. Super. 37 (App. Div. 1997) (declining to impose a duty to an infant where a driver was involved in an accident and the infant was not conceived at the time of the accident, but was born seven years later), aff'd, 157 N.J. 525 (1999). The seller of a home had no duty to inform the buyer that the neighbor did not like the home and had made numerous complaints about the home. Levine v. Kramer Group, 354 N.J. Super. 397, 405 (App. Div. 2002) ("We do not hold that sellers and brokers have a duty to investigate or disclose transient social conditions in the community that arguably affect the value of property.") (quoting Strawn v. Canuso, 140 N.J. 43, 64 (1995)). A bus company did not owe a duty to its passengers who were shot by another passenger as the bus company was unaware that the passenger was armed and "had no reason to know of [the passenger]'s violent predispositions." Sanchez, supra, __ N.J. Super. at __ (slip op. at 10). We refused to impose the "extreme" duty of requiring all buses to have security guards as passengers. Id. The owner of a pool was under no duty to warn his social guest, who had swam in the pool on twenty prior occasions, about the varying depths of the pool. Tighe v. Peterson, 175 N.J. 240 (2002). Finally, the manufacturer of a water softener did not have a duty to a man who suffered a heart attack after seeing rust- colored water come out of his faucet as it "was an extraordinary occurrence, not reasonably to be expected in a normal person and so must have constituted an idiosyncratic reaction by this particular plaintiff." Caputzal v. Lindsay Co., 48 N.J. 69, 76 (1966).
Here, the risk that someone would slip on the five-foot puddle was both serious and foreseeable. This condition and attendant risk was in a corridor between a restaurant and kitchen and immediately adjacent to a cooler. Defendant asserts that the hotel had the absolute duty to clean up the puddle. "A landowner has 'a non-delegable duty to use reasonable care to protect invitees against known or reasonably discoverable dangers.'" Rigatti v. Reddy, 318 N.J. Super. 537, 541 (App. Div. 1999) (quoting Kane v. Hartz Mountain Indus., 278 N.J. Super. 129, 140 (App. Div. 1994), aff'd, 143 N.J. 141 (1996)); see also Moore v. Schering Plough, Inc., 328 N.J. Super. 300, 305 (App. Div. 2000). The hotel certainly had a duty to plaintiff. *fn1 But that obligation does not relieve the party that created the hazard from liability.
Similarly, defendant argues that as an independent contractor, it had no responsibility to either notify or clean the area. Defendant was an independent contractor. See Moore, supra, 328 N.J. Super. at 305-06 ("An independent contractor is one 'who, in carrying on an independent business, contracts to do a piece of work according to his own methods without being subject to the control of the employer as to the means by which the result is to be accomplished but only as ...