On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-3816-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne and Waugh.
Plaintiff Eduardo Costa appeals the dismissal of his personal injury action at the end of the trial testimony pursuant to Rule 4:40-1. We reverse and remand for trial in conformance with the legal principles discussed below.
Because a court considering a motion for judgment pursuant to Rule 4:40-1 "must accept as true all the evidence which supports the position of the non-moving party, according him or her the benefit of all legitimate inferences," RSB Laboratory Services, Inc. v. BSI, Corp., 368 N.J. Super. 540, 555 (App. Div. 2004), we set forth the facts adduced at trial in the form most favorable to Costa. We note, however, that defendant Said Bahammou and his wife, defendant Rachel Scroggins,*fn1 gave a very different version of the relevant events during their trial testimony.
In 2003, Costa was employed by Nimco Construction as a mason. On behalf of Nimco, he was engaged in removing a cement sidewalk and replacing it with brick pavers in Elizabeth, adjacent to the office where Bahammou was employed. Costa testified that Bahammou approached him and asked what he was doing. After hearing Costa's response, Bahammou told Costa he might have "jobs to be done" at his home in Califon. Costa subsequently went to Bahammou's home and met with him and Scroggins. Bahammou engaged Costa to replace a walkway on his property with brick pavers, like the ones used on the project in Elizabeth. Costa testified that neither Bahammou nor Scroggins supervised his construction of the walkway.
After the sidewalk was completed, Bahammou asked Costa about installing a new driveway to replace an existing gravel one. Bahammou had marked out the path for the proposed driveway with orange spray paint. There was a large tree in the path marked out for the driveway. Costa told Bahammou that he had no experience in tree removal and suggested that he get a professional to do that part of the job. No agreement was reached at that time.
Bahammou approached Costa on another occasion in Elizabeth and told him that, if he wanted to do the driveway, he would also have to cut down the tree. Costa described the conversation as continuing as follows:
And I told him I'm -- I'm not doing [it]. And he said, he's gonna -- don't worry. I provide all the tools and all safe -- safety to -- to cut the tree. Don't -- don't worry about.
And I say okay, let me think. Because I'm not sure; I [don't] want to do it. Okay. But he -- he -- he told me, okay, think and I later talk to you about it. And I said okay. After that, he come -- he comes and he asked me what do you want to do? Okay, if you get all -- if you provide all the tools, because I don't got any ladders. I don't got any chainsaws, I don't got anything. I go -- I go to your house and cut them.*fn2
Costa went to Bahammou's house on Saturday, September 20, 2003. He brought no tools with him for working on the tree. When he arrived, he saw only a ladder and a chainsaw. Costa placed the ladder against the tree in preparation for cutting off a limb. When he had almost cut the branch through with the chainsaw, it started to crack and then fell, resulting in the ladder moving, but not falling. That movement of the ladder caused Costa to lose his balance, fall off of the ladder, and hit the ground, resulting in a broken leg. Although ...