April 9, 2009
RONALD CARTLIDGE, PLAINTIFF-APPELLANT,
VERIZON NEW JERSEY INC., DEFENDANT-RESPONDENT, AND
MOHALEE COWHERD, DEFENDANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-6127-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 2, 2008
Before Judges Parker and LeWinn.
Plaintiff Ronald Cartlidge appeals from the November 16, 2007 order of the Law Division granting summary judgment to defendants dismissing his complaint with prejudice. For the reasons that follow, we affirm.
The pertinent factual background may be summarized as follows.*fn1 On September 22, 2004, at approximately 12:30 p.m., plaintiff was crossing Springfield Avenue in Maplewood Township, while talking on his cell phone to a friend. As he crossed the street within the designated pedestrian crosswalk, defendant Mohalee Cowherd, an employee of Verizon New Jersey, Inc. (Verizon), was sitting in the driver's seat of a Verizon van stopped at the traffic light. Cowherd "yell[ed]" to plaintiff, "Why don't you get the f- - - off the phone." Plaintiff turned and looked at Cowherd; he noticed that Cowherd was talking on a cell phone while in the driver's seat of the van. Plaintiff responded, "Why don't you get off the phone."
Still talking on his cell phone, plaintiff then entered a restaurant known as Panda Kitchen, where he intended to purchase lunch. He noticed Cowherd following him into the restaurant, and told his friend on the phone, "I think I need to go[,]" and hung up the phone.
Cowherd approached defendant from behind while he was in line waiting to place his order. Cowherd said, "[E]xcuse me, I just wanted to make sure I heard what the f- - - you just said." Plaintiff stated that he was "scared for [his] life," because Cowherd was "6'5", [a] black man, 250, it's very scary." Plaintiff repeated what he had said, to which Cowherd responded, "that's what the f- - - I thought you said."
Cowherd then assaulted plaintiff, who described the incident as follows:
I saw it in slow motion. His right hand went up. I saw the gold ring on his finger. He came down, he hit me from my ear down to my jaw. And he walloped me; pounded me. He hit me so hard that I fell right to the ground. My left shoulder hit first. He twisted my body around. Then my head hit the ground. I blacked out.
When I finally came to, I don't know how long I was out. But when I finally came to he was standing on top of me. I stood up very, very slowly after I regained my balance and he said, "What are you going to do now bitch?" I very slowly said, "Nothing." He said, "That's what I thought."
Then he walked out of the restaurant, got in his truck and drove away.
Plaintiff filed a complaint with the Maplewood Police Department. Plaintiff's mother notified Verizon about Cowherd's assault. Verizon conducted its own investigation of the incident and, in a report dated October 21, 2004, Angela H. Long, director of Verizon security concluded: "Facilities Technician Mohalee Cowherd admitted hitting Ronald Cartlidge in the face at Panda's Chinese restaurant on September 22, 2004. He told Security that he acted in self-defense, but his statements and those of witnesses failed to corroborate his claim." Verizon subsequently terminated Cowherd; that decision was upheld in arbitration.
In his Law Division complaint, plaintiff alleged that Verizon was negligent in hiring and supervising Cowherd, and that Verizon was liable on the basis of respondeat superior/vicarious liability. Cowherd failed to answer the complaint, and default was entered against him on December 7, 2006.
On October 15, 2007, Verizon filed a motion for summary judgment. Verizon documented that Cowherd had been hired in 1997 by Verizon's predecessor, Bell Atlantic Communications and Construction Services, Inc. (BACCSI). Verizon was unable to locate Cowherd's original employment application with BACCSI. Cowherd had been "hired to perform basic (simple) wiring installations for telephone services."
Jose Centeno, who had been Cowherd's supervisor, certified that:
[p]rior to the assault incident with the plaintiff, . . . [he was] not aware of any other similar aggressive behaviors toward third parties which would place Verizon on notice of Cowherd's unfitness for work as a facilities technician.
Similarly, there was nothing in Mohalee Cowherd's personnel file which would place Verizon on notice of Cowherd's unfitness for work. Indeed, his only disciplinary actions involved attendance.
Plaintiff noted that Cowherd had been "determined guilty of possession of an illegal drug" and was sentenced to two years probation on June 6, 1991; that he received a speeding summons for driving ninety-one miles per hour in a sixty-five mile per hour zone in North Carolina on May 20, 1994; and that his driving history record abstract from 1991 through 1997, prior to his being hired by BACCSI, showed charges of speeding and operating while suspended or revoked in March 1995. During his employment with Verizon, from 1997 to 2003, Cowherd had a speeding charge in 1998 and was required to attend a driver improvement program; he also had a charge of unsafe operation of a motor vehicle in 2003.
Plaintiff also analyzed Cowherd's performance appraisals by Verizon showing that, in 2001, he was in need of "[i]mprovement . . . to [m]eet [his] [p]osition [r]equirements" and had "been scheduled for additional training to further his knowledge and increase his work performance." Cowherd had similar performance appraisals in 2003 and 2004. Plaintiff also noted that Cowherd had been subject to disciplinary "discussions" about his attendance in 2002 and 2003.
At oral argument, the trial judge noted that plaintiff was not alleging an "automobile accident" or "road rage based on an accident . . . ." Therefore, the court found that Verizon's failure to produce documentation of the initial background check on Cowherd when he was hired was not germane to plaintiff's causes of action.
Regarding plaintiff's claim of negligent supervision and retention of Cowherd, the judge asked plaintiff to identify "what should be raising alarms in their mind . . . that should bring them to action." Plaintiff responded that, "once [Cowherd] was in their employ, they should have supervised him properly." Plaintiff posited that, "with all the pressures that had been on him because he had been suspended -- on and off suspensions, things like that, his aggressive nature, his reckless nature, . . . he snapped." When asked for "evidence" of that allegation, plaintiff asserted that "[t]he evidence of his aggressive nature is his driving record, Judge."
In support of his vicarious liability argument, plaintiff relied upon our decision in Hill v. New Jersey Dep't of Corr. Comm'r Fauver, 342 N.J. Super. 273 (App. Div. 2001), certif. denied, 171 N.J. 338 (2002), for the proposition that: "In considering whether an employer is vicariously liable for the acts of its employees or agents, the fact that the tort is negligent or intentional is of no real consequence." Id. at 305. As plaintiff noted, in Hill, the court found "genuine issues of material fact with respect to whether or not the two teachers, the union representative and the E.E.O. director were acting within the scope of their employment" when they allegedly conspired to file false sexual harassment charges against the superintendent.
Here, however, as the trial judge noted, with plaintiff's concurrence, "[a]ssaulting people" was not "part of [Cowherd's] job responsibility." Therefore, the judge concluded that the Hill decision "has nothing to do with the facts in this case."
On appeal, plaintiff presents the following arguments for our consideration:
I. THE MOTION JUDGE FAILED TO MAKE FINDINGS OF FACT AND CONCLUSIONS OF LAW AS REQUIRED BY RULES 1:7-4 AND 4:46-2(c)
II. THE MOTION JUDGE ERRED IN GRANTING SUMMARY JUDGMENT BECAUSE VERIZON DID NOT ESTABLISH AS A MATTER OF LAW THAT IT WAS NOT VICARIOUSLY LIABLE FOR THE CONDUCT OF COWHERD OR LIABLE FOR ITS NEGLIGENT HIRING, RETENTION OR SUPERVISION OF HIM
A. Respondeat Superior (Vicarious Liability)
B. Negligent Hiring/Supervision/Retention
Rule 1:7-4(a) provides that "[t]he court shall, by an opinion or memorandum decision, either written or oral, find the facts and state its conclusions of law thereon . . . on every motion decided by a written order that is appealable as of right . . . ." It is the duty of the trial court to "state clearly its factual findings and correlate them with the relevant legal conclusions." Curtis v. Finneran, 83 N.J. 563, 570 (1980).
Plaintiff contends the trial judge failed to fulfill this duty. While we regard the trial judge's decision from the bench to be somewhat perfunctory, we nonetheless conclude that he complied with the intendment and purpose of the rule.
In rejecting plaintiff's claim of negligent hiring, the trial judge found that, even if Cowherd's initial employment application file had been available, nothing in Cowherd's record would have alerted Verizon not to hire him. As noted, the judge stated that plaintiff was not claiming "road rage based on an accident," and, therefore, Cowherd's prior driving record was irrelevant.
Regarding plaintiff's negligent supervision and/or retention argument, the judge again noted that Cowherd's driving record "has nothing to do with this particular case." Finally, regarding plaintiff's vicarious liability argument, the judge stated that "assaulting people is [not] part of [Cowherd's] job responsibility[.]"
Based on the foregoing, we conclude the trial judge adequately "f[ou]nd the facts and state[d] [his] conclusions of law" to satisfy the requirements of Rule 1:7-4(a).
We turn next to plaintiff's contention that the trial judge erred in granting summary judgment to Verizon. In deciding a motion for summary judgment, a trial judge must consider whether "the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Our standard of review of the denial of a motion for summary judgment mirrors that of the trial judge: namely, whether there is a genuine issue of material fact and, if not, whether the moving party is entitled to summary judgment as a matter of law. Kopin v. Orange Prods., Inc., 297 N.J. Super. 353, 366 (App. Div.), certif. denied, 149 N.J. 409 (1997); See also McClelland v. Tucker, 273 N.J. Super. 410, 415 (App. Div. 1994).
The tort of negligent hiring or retention of an employee has two basic components:
The first involves the knowledge of the employer and forseeability of harm to third persons. An employer will only be held responsible for the torts of its employees beyond the scope of the employment where it knew or had reason to know of the particular unfitness, incompetence or dangerous attributes of the employee and could reasonably have foreseen that such qualities created a risk of harm to other persons. The second required showing is that, through the negligence of the employer in hiring the employee, the latter's incompetence, unfitness or dangerous characteristics proximately caused the injury. [Di Cosala v. Kay, 91 N.J. 159, 173-74 (1982) (internal citations omitted).]
In that case, the Court held that summary judgment should not have been granted where the facts established that the employer knew that the employee, a camp ranger, kept firearms within his employer-provided lodgings; one of those weapons was mishandled by a third party; and plaintiff was injured as a result. Id. at 165. The Court held that the plaintiff had been exposed to an "enhanced hazard" and a "zone of risk" created by the employment; therefore, the Court concluded that the harm resulting to plaintiff was foreseeable. Id. at 178.
Plaintiff argues that one of Cowherd's "specific duties" in the course of his employment with Verizon was driving a company vehicle and that "[i]njuries to the public from the operation of that vehicle were foreseeable." Plaintiff concedes that Cowherd "was not operating the vehicle at the exact moment that he assaulted [plaintiff]," but argues nonetheless that "it is certainly a permissible conclusion on this record that the assault was the result of 'road rage' engendered during Cowherd's operation of the vehicle."
This argument flies in the face of the position plaintiff advanced below which, as noted, expressly eliminated the claim that "this [was] road rage based on an accident . . . ." Moreover, plaintiff acknowledged that Cowherd was not operating the Verizon van; rather, the assault occurred after Cowherd followed plaintiff into the Panda Kitchen restaurant.
As the trial judge found, nothing in Cowherd's disciplinary or other employment-related records could reasonably have given Verizon cause for concern that Cowherd was unfit or incompetent in the manner evidenced by his physical assault upon plaintiff. In other words, nothing in the record supports a finding that Verizon had prior knowledge or reason to believe that Cowherd was an employee who would create a risk of physical harm to third parties.
We reject plaintiff's contention that a negative inference should be drawn from Verizon's inability to locate records relating to Cowherd's hiring. In support of that contention, plaintiff relies upon Rosenblit v. Zimmerman, 166 N.J. 391 (2001). However, Rosenblit permits such an inference to be drawn only where the record demonstrates that a party has "intentionally hidden or destroyed . . . evidence." Id. at 411. No such argument has been advanced here.
Finally, regarding plaintiff's vicarious liability claim, we concur with the trial judge's conclusion that plaintiff's reliance upon Hill, supra, is misplaced. There, the court noted that the conduct of a servant is not within the scope of employment if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master. Other factors to be considered are whether the conduct is of the same general nature as that authorized, or incidental to the conduct authorized; whether the master has reason to expect that such an act will be done; the similarity and quality of the act done to the act authorized; and the extent of departure from the normal method of accomplishing an authorized result. [Hill, supra, 342 N.J. Super. at 306 (citing Restatement (Second) of Agency, §§ 228, 229 (1957)).]
Pursuant to these standards, it is clear that Cowherd's physical assault upon plaintiff in the restaurant, after he parked and exited his Verizon van, was a "departure from the normal method of accomplishing [his] authorized result." Ibid. Therefore, summary judgment on this claim was also appropriate.