August 26, 2010
MICHAEL DELEON AND DAMARYS DELEON, PLAINTIFFS-APPELLANTS/ CROSS-RESPONDENTS,
GLIMCHER REALTY TRUST,*FN1 AND TRIDON CLEANING CORPORATION,*FN2 DEFENDANTS, AND OFF 5TH SAKS FIFTH AVENUE OUTLET, DEFENDANT-RESPONDENT/ CROSS-APPELLANT, AND ONESOURCE MANAGEMENT, INC., DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-3727-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 21, 2009
Before Judges Fisher and Sapp-Peterson.
This appeal and cross-appeal arise from orders granting summary judgment in favor of defendants, Off 5th Saks Fifth Avenue Outlet (Saks) and OneSource Management, Inc. (OneSource), stemming from a slip and fall from which plaintiff,*fn3 Michael DeLeon, a Saks employee, sustained injuries. We affirm both orders, but as to Saks, for a different reason.
Plaintiff worked for Saks in its Elizabeth store as a loss prevention associate (also known as a store detective). He slipped and fell on the floor in the men's restroom, sustaining injuries on December 4, 2004, around 4:00 p.m. One month earlier, he had sustained another work-related injury, a sprained left ankle, as a result of chasing a shoplifter. He returned to work on December 3, and, at that time, was walking with a cane and still receiving physical therapy for this injury. Prior to his fall, DeLeon had not observed any water on the floor, but did observe water at the time he slipped.
Defendant, OneSource, contracted with Saks to provide cleaning services to Saks' stores nationwide, including the Elizabeth store. Under its contractual obligation, OneSource provided cleaning services to the Elizabeth store daily. It typically cleaned the restrooms twice a day, before the store opened and around 5:30 p.m. No evidence was disclosed during discovery that OneSource was aware of any water problem in the bathroom on the day of plaintiff's slip and fall. Nor was there any evidence in the record that prior to plaintiff's fall, there had been a recurring water problem in the restroom. Additionally, discovery revealed no other general complaints about the cleanliness or maintenance of the restrooms prior to plaintiff's slip and fall.
Following the accident, DeLeon filed a workers' compensation claim seeking the recovery of benefits stemming from this work-related accident and subsequently received benefits. Saks Incorporated, Saks' parent company, the named insured under an insurance policy covering Saks employees at the Elizabeth store, answered the petition. DeLeon commenced receiving workers' compensation benefits.
In seeking summary judgment, OneSource argued that it breached no duty of care owed to plaintiff. Saks maintained that it was entitled to summary judgment based upon the exclusivity provision contained in the Workers' Compensation Act (Act), N.J.S.A. 34:15-1 to -128, and also because it breached no duty of care owed to plaintiff. In granting summary judgment, the motion judge agreed that it was undisputed that OneSource breached no duty of care owed to plaintiff. As to Saks, the judge concluded that there was a factual dispute as to whether plaintiff was a "special employee" for purposes of overcoming the workers' compensation exclusivity bar but that summary judgment was nonetheless appropriate because Saks breached no duty of care to plaintiff as a matter of law. The present appeal followed.
On appeal, plaintiffs urge the court erred in granting summary judgment to both Saks and OneSource. First addressing Saks, plaintiffs contend the court erred when it found that the "mode of operation"*fn4 rule did not apply and that the restroom was not "inherently dangerous." As to OneSource, plaintiffs contend that the language of its contract with Saks was much broader than construed by the court, which concluded that OneSource "was to go in and do whatever they're supposed to do pursuant to the contract[,] which was evidently to clean it on a periodic basis; periodic, unspecified basis. There was no duty to inspect." In its cross-appeal, Saks contends the motion judge erred in finding that there were disputed factual issues relative to whether the provisions of the Act operated as plaintiff's exclusive remedy for claims against it.
When reviewing a grant of summary judgment, we employ the same legal standards used by the motion judge. Spring Creek Holding Co. v. Shinnihon U.S.A. Co., 399 N.J. Super. 158, 180 (App. Div.), certif. denied, 196 N.J. 85 (2008); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). First, we determine whether the moving party has demonstrated that there were no genuine disputes as to material facts, and then we decide whether the motion judge's application of the law was correct. Atlantic Mut. Ins. Co. v. Hillside Bottling Co., Inc., 387 N.J. Super. 224, 230-31 (App. Div.), certif. denied, 189 N.J. 104 (2006). In so doing, we view the evidence in the light most favorable to the non-moving party and analyze whether the moving party was entitled to judgment as a matter of law. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523, 529 (1995). We accord no deference to the motion judge's conclusions on issues of law, Manalapan Realty, L.P., v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995), which we review de novo. Spring Creek, supra, 399 N.J. Super. at 180; Dep't of Envtl. Prot. v. Kafil, 395 N.J. Super. 597, 601 (App. Div. 2007).
We first dispense with Saks' cross-appeal. Saks argues that the motion judge erred when it concluded factual issues precluded the grant of summary judgment based upon the exclusivity provision of the Act. We agree.
N.J.S.A. 34:15-8 provides:
If an injury or death is compensable under this [Act], a person shall not be liable to anyone at common law or otherwise on account of such injury or death for any act or omission occurring while such person was in the same employ as the person injured or killed, except for intentional wrong.
In Blessing v. T. Shriver & Co., we stated that:
an employee, for the purposes of workmen's compensation, may have two employers, both of whom may be liable to him in compensation, and a recovery against one bars the employee from maintaining a common law tort action against either for the same injury.
[94 N.J. Super. 426, 429-30, (App. Div. 1967).]
We detailed a test to determine whether an employer was a "special employer" and therefore entitled to immunity under the Act. The factors in Blessing are as follows: 1) whether there is an express or implied contract for hire between the special employee and the employer; 2) whether the work being done is essentially that of the special employer; and 3) whether the special employee has a right to control the details of the work. Id. at 430. Two additional considerations that factor in the determination include determining: 4) who pays the wages of the employee; and 5) who has the power to hire and fire the employee. See Walrond v. County of Somerset, 382 N.J. Super. 227, 236 (2006). No one factor is dispositive, and not all five factors must be satisfied in order for a special employment relationship to exist. Marion v. Ind. Crating Co., et al., 358 F.3d 241, 244 (3d Cir. 2004) (citing Blessing, supra, 94 N.J. Super. at 433-34).
Applying the Blessing factors to the undisputed facts here, summary judgment pursuant to the Act's exclusivity provisions should have been granted. Saks and Saks Incorporated are listed on plaintiff's W-2 statement. Plaintiff performed work for both Saks and Saks Incorporated as he worked to prevent loss. Additionally, both the store manager and the district manager had the power and authority to control plaintiff's work. Further, Saks paid a portion of plaintiff's wages. Moreover, Saks points out in its brief that there is a federal employer's identification number for Saks Incorporated and a state employer identification number for Saks on plaintiff's W-2 statement. Finally, Saks had the authority to hire and fire plaintiff.
We are convinced that these undisputed facts should have led to the grant of summary judgment in favor of Saks based upon the exclusivity provisions of the Act since Saks satisfied all of the Blessing elements. Hence, the motion judge erred in denying Saks' motion on this ground. In view of this determination, we need not address plaintiff's argument that the court erred in granting summary judgment to Saks based upon the motion judge's finding that the "mode of operation rule" did not apply and Saks' restroom was not inherently dangerous.
Next, the essence of plaintiffs' argument as to OneSource is that the court construed its cleaning contract too narrowly and that there was no evidence in the record that the "intent of the signatories to the contract was for OneSource to clean the restroom once a day or every hour of the day." Accepting that statement as true for purposes of summary judgment, there is nothing in the record demonstrating that the manner in which OneSource performed its contractual obligations was causally related to plaintiff's slip and fall.
"Ordinarily an injured plaintiff . . . must prove, as an element of the cause of action, that [a] defendant had actual or constructive knowledge of the dangerous condition that caused the accident." Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559, 563 (2003). The fact of an accident resulting in an injury, without more, is insufficient to establish negligence on the part of a defendant. Hansen v. Eagle-Picher Lead Co., 8 N.J. 133, 139 (1951); Vander Groef v. Great Atlantic and Pacific Tea Co., 32 N.J. Super. 365, 370 (App. Div. 1954). The burden of proving negligence is on the plaintiff. Ibid. Negligence is established from circumstances which would allow a legitimate inference that a defendant failed to exercise due care. Ibid. "It is a substantial right of [a] defendant that [a] plaintiff be required to bear this burden." Ibid. Moreover, "[a]n inference can be drawn only from proved facts and cannot be based upon a foundation of pure conjecture, speculation, surmise or guess." Long v. Landy, 35 N.J. 44, 54 (1961) (citing Rivera v. Columbus Cadet Corps of America, 59 N.J. Super. 445 (App. Div. 1960), certif. denied, 32 N.J. 349 (1960)).
Here, plaintiffs have not presented any evidence, direct or circumstantial, that a dangerous condition was created by OneSource or that the wet floor in the restroom had existed for a sufficient length of time that OneSource had constructive notice of same. While there is no dispute that OneSource owed a duty of reasonable care to plaintiff in the performance of its cleaning duties, there is nothing in the record raising a genuinely disputed issue of fact that the cleaning services provided were inadequate or that the water on the floor at the time of plaintiff's slip and fall was causally related to OneSource's breach of its contractual obligations.
Plaintiffs' expert opined:
1. The restroom was neither checked nor cleaned sufficiently to assure that the floors [were] dry and slip resistant;
2. No mats were deployed at either the urinal or the floor area around the lavatories to enhance slip resistance;
3. Toilet water supply pipes are exposed and not insulated so that they can sweat and drip water to the floor;
4. The urinal was not equipped with a splash guard to prevent water from splashing onto the floor.
Nothing in OneSource's contract called for it to provide floor mats, insulate exposed water pipes or to equip urinals with splash guards to prevent water from splashing on the floor. While it is foreseeable that water may drip onto the floor for a number of reasons, that alone does not establish that the manner in which OneSource performed its cleaning obligations was likely to cause the condition which plaintiff claims caused his fall. There was no evidence in the record of any prior complaints relative to the condition of the restrooms or any particular problems with water accumulation. Hence, the motion judge properly granted summary judgment in favor of OneSource.