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Taylor v. Aguado

July 15, 2010

DAVID B. TAYLOR, PLAINTIFF-RESPONDENT,
v.
CLIFFORD A. AGUADO, DEFENDANT-RESPONDENT, AND AMERGEN ENERGY CO., LLC, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-475-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued June 3, 2010

Before Judges Cuff and Fasciale.

Defendant, AmerGen Energy Co., LLC (AmerGen), appeals from an August 11, 2009 order of judgment, and from a September 11, 2009 order denying its motion for a judgment notwithstanding the verdict (JNOV). We affirm.

Plaintiff, David B. Taylor, filed a premises liability lawsuit seeking money damages for injuries he sustained on February 2, 2005, while crossing a picket line at the Oyster Creek Nuclear Facility (Facility). AmerGen was the undisputed licensed owner of the Facility, and it leased part of that property to Jersey Central Power and Light (JCP&L) to use as a warehouse. During a strike at JCP&L in 2004-05, JCP&L relied on truck drivers employed by an independent contractor to deliver supplies to its warehouse. Plaintiff was one of the truck drivers.

After making a delivery to the warehouse, plaintiff was assaulted by co-defendant, Clifford A. Aguado, a JCP&L picketer. He sustained various personal injuries for which he sought compensatory and punitive damages. A jury awarded plaintiff $100,000 to compensate him for his injuries, and found AmerGen sixty percent liable and Aguado forty percent liable for the incident. Aguado has not filed a notice of appeal. At issue in this appeal is whether plaintiff adduced sufficient evidence that AmerGen owned the Facility, had a duty to protect plaintiff, and breached that duty.

As noted, plaintiff adduced evidence at trial, undisputed by AmerGen, that AmerGen owned and operated the Facility. Access to the Facility was through either a north, central or south gate. JCP&L's warehouse was accessible by the north and south gates. The central gate provided direct access to the nuclear generator facility and was heavily guarded. AmerGen also placed guards at the north gate. AmerGen provided no security at the south gate, and it was only through this gate that plaintiff and other drivers could access the JCP&L portion of the premises, and JCP&L instructed plaintiff and other drivers to use only the south gate. This limitation resulted from an agreement between AmerGen and JCP&L to keep strike activity at one location. Over the course of nearly two months, plaintiff crossed the picket line on a daily basis because no other route to the warehouse was available to him.

Prior to the incident, plaintiff expressed concern about his safety when delivering supplies to the warehouse. He requested an escort, or some form of security, because he was afraid of being attacked. During the JCP&L strike, AmerGen's private security company, Wackenhut, provided protection at the north and central gates but not the south gate. On four separate occasions, plaintiff attempted to use the safer north gate, but JCP&L instructed him to use the south gate where the picketers were gathered. Prior to the February 2, 2005 incident, picketers screamed at plaintiff, threw bottles and rocks at his truck, and directed crude gestures at him.

Plaintiff testified that over the course of two months, the picketers became more hostile towards him. Despite the escalating intensity of the strike, no security was provided. Even though AmerGen knew that JCP&L was experiencing a daily strike at the south gate for nearly two months, AmerGen had no emergency plan in place. AmerGen did not give plaintiff any emergency number to call and did not give any instructions or guidance about what to do if the harassment of drivers turned violent.

AmerGen understood the importance of providing security during a strike. In 2003, AmerGen experienced its own strike. During the AmerGen strike, it hired Wackenhut to provide protection. The security measures AmerGen provided during its strike included cameras and military police and troopers to monitor the north and central gates.

On February 2, 2005, plaintiff made a delivery to the Facility. He made a left turn from Route Nine onto Discharge Way intending to use the south gate into the Facility. Plaintiff was stopped by the picketers, but made it through the picket line to the JCP&L warehouse. He requested permission to leave through another gate, but was not permitted to do so. After plaintiff completed the delivery, he left the warehouse on his way back to the south gate. As plaintiff's seventy-two foot, flat-bed trailer proceeded through the south gate, he noticed Aguado coming at him at an angle. As plaintiff drove through the gate, Aguado slashed his tires, jumped on the truck, opened the door, and attempted to pull plaintiff out of his truck. Plaintiff used a hammer that he kept inside his truck to fend off Aguado. As a result of the assault, plaintiff suffered severe injuries including a glenoid fracture, labral tear, and rotator cuff tendinitis.

At trial, after the charge conference, AmerGen moved for an involuntary dismissal pursuant to Rule 4:37-2(b). It argued that it did not own the area where the incident occurred, and even if it did, that AmerGen did not owe plaintiff a duty to provide security. The trial judge denied that motion, and, following the return of the verdict, denied AmerGen's motion for JNOV.

On appeal, AmerGen contends that the trial judge erred by not granting its motions for an involuntary dismissal and JNOV. It argues that (1) plaintiff failed to prove that it owned the property where the incident occurred; (2) it did not owe plaintiff a duty to provide security; (3) it did not owe plaintiff a duty to protect him from doing the job he was hired to do; (4) it had no notice ...


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