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Medina v. BRW Limited Holdings

June 26, 2008

ABRAHAM MEDINA AND DULCE MEDINA, HIS WIFE, PER QUOD, PLAINTIFFS-APPELLANTS,
v.
BRW LIMITED HOLDINGS, L.L.C., ERAN WAJSWOL, PHIL BUZZERIO, QUIL MANAGEMENT, T.C. DUNHAM PAINT & COATINGS, INC. AND HUDSON FLOOR SUPPLY, DEFENDANTS-RESPONDENTS, AND INDIAN HARBOR INSURANCE COMPANY, AS SUBROGEE OF BRW LIMITED LTD. AND QUIL MANAGEMENT, PLAINTIFFS,
v.
WASHINGTON FLOOR COVERING AND ABRAHAM MEDINA, INDIVIDUALLY, DEFENDANTS.



On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Hudson County, Docket No. L-1436-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: March 31, 2008

Before Judges C.S. Fisher and C.L. Miniman.

Plaintiffs Abraham and Dulce Medina appeal from an order for summary judgment dismissing their personal injury and per quod claims against BRW Limited Ltd. (BRW),*fn1 Eran Wajswol, Phil Buzzerio and Quil Management (Quil).*fn2 Because the principle that the owner of property is under a duty to provide a reasonably safe place in which independent contractors perform services for the owner, Accardi v. Enviro-Pak Systems Co., 317 N.J. Super. 457, 462 (App. Div. 1999), certif. denied, 158 N.J. 685 (1999), was not followed, we reverse and remand for trial on the merits.

The facts most favorable to plaintiffs, and the reasonable inferences that may be drawn from them, Brill v. Guardian Life Insurance Co. of America, 142 N.J. 520, 523 (1995), establish that BRW and Quil were formed and operated by Buzzerio and Wasjowl; BRW held title to two pieces of real estate at 803-805 Washington Street, Hoboken, and Quil*fn3 managed BRW's rental properties and almost one hundred condominium properties for various associations.*fn4 BRW had no employees and both Buzzerio and Wajswol worked for Quil, as did five other employees, including maintenance workers and office staff.

Abraham, who had been doing business as Washington Floor Covering for at least twelve years at the time of the accident, had an established relationship with defendants. Abraham would perform floor refinishing and other services for defendants from time to time in the properties they owned in Hoboken and managed for others.

When Abraham first began to work for defendants, he was not refinishing floors for them but rather laying carpet and linoleum. However, Buzzerio wanted Abraham to take over floor refinishing and they discussed the requirements of the job. Abraham explained to Buzzerio that before he began any refinishing work for BRW, Buzzerio had to have the gas service to the unit or the building turned off. Buzzerio replied that they would have their men take care of that requirement. Buzzerio did not dispute this conversation. David Killion, who was employed by Quil and supervised by Buzzerio, was primarily responsible for preparing rental units for new tenants. Thereafter, each time that Abraham was asked to refinish wood flooring, Killion would take care of having the gas to the unit turned off. Abraham would bill BRW and the bill generally was paid by Quil with a BRW check.

Generally, when working on wood floors, Abraham would supply all of the equipment, stain and lacquer. The rental unit would have to be vacant for seventy-two hours to do the work and allow the floors to dry. If the unit was occupied, the owner would have to remove everything on the floors to be refinished. The owner was always responsible for moving the furniture and turning off the gas. When Abraham arrived at a job, he would confirm with the owner that the gas was off. If the owner did not know how to do so, Abraham would instruct them to contact PSE&G or a plumber. Abraham himself did not know how to turn off the gas. Almost every time he did a job, Abraham would check to make sure the gas was off by turning on the stove and checking the hot water heater. He did this because he knew he was working with flammable material.

In June 2004 Quil contacted Abraham and arranged to have Abraham refinish the wood floors in Apartment 3 on the second floor of 803 Washington Street, a multi-unit apartment building. Abraham had worked in that building several times installing linoleum or carpet and refinishing wood floors. Apartment 3 had a living room, bedroom, bathroom, kitchen and an entry hall. Abraham was to refinish the wood floors in the entry hall, living room and bedroom in preparation for a new tenant.

Abraham picked up the key from Quil and went to the apartment to inspect it. He discovered that there was a lot of piled-up furniture on the floors that he was to refinish and he could not do the work. At about this time Killion had a hernia operation and was recuperating at home. Abraham called Quil and spoke to the secretary, Tracey Pfledging, who said that she would let someone know about the problem. Abraham returned to the apartment on June 22 or 23, 2004, and saw that all of the furniture had not been removed. This was several days to a week after Killion's surgery. Abraham called Quil again and was told that it was going to send people there to take care of the gas line and the furniture, and get everything out of the way. Abraham testified that Killion had always taken care of the gas and it was Abraham's practice, if he was not with Killion when he turned off the gas, to check to make sure it was off.

Abraham returned to the apartment a third time on June 23, 2004, between 3:30 and 4:00 p.m. Before he did so, he had been told that the furniture was out of the way and the gas was off and Quil was urging him to get the job done that day. Abraham found all of the furniture in the kitchen in front of the stove and hot water heater.*fn5 One of the kitchen windows was open and Abraham, after moving some chairs and possibly a small refrigerator, opened the other window. He then opened all three windows in the living room and the one in the bedroom. Abraham did not check to confirm that the gas was off because he had just been told that everything was ready. Also, the furniture was blocking the stove and hot water heater and Abraham would have had to move some or all of it out of the kitchen in order to check the gas.

Abraham began work by sanding the floors and then he applied a quick-dry lacquer sealer made by Danhams Company, which he had purchased from Pino & Son in Union City. He sealed the bedroom and living room and was in the process of sealing the entry hall at about 7:50 p.m. when the hot water heater turned on and the lacquer fumes exploded. Abraham suffered third-degree burns on his face and upper body resulting in cellulitis of his face and the loss of dexterity in one hand.

This action was instituted thereafter and, when discovery was complete, BRW, Buzzerio and Wajswol sought a summary judgment as a matter of law on the grounds that a landowner is not liable for the negligence of independent contractors, i.e., Quil, and members of a limited liability company have no individual liability for the debts of the company. Over plaintiffs' opposition, the judge concluded that there was no basis for imposing liability on Buzzerio and Wajswol because their corporation, not they, owned the real estate. She ...


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