On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-4100-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Yannotti.
Plaintiff Edgar Marroquin appeals from entry of a directed verdict in favor of defendant Evans Delivery Company, Inc. (Evans), dismissing his complaint seeking to hold Evans vicariously liable for the negligence of Halcor, Inc. (Halcor) and its employee Jose Carvajal. We affirm.
This matter arises out of a forklift accident that occurred on July 6, 2007, on premises leased to Halcor and where Halcor conducts its business activities, including the warehousing and storage of goods. On July 6, plaintiff, who regularly visited Halcor's premises to solicit repair work on vehicles at the facility, was present to perform services on a truck. After completing his work, plaintiff voluntarily assisted Carvajal, who was operating a forklift, unload large wooden beams from a container stored in the yard of Halcor's warehousing facility. During the course of his assistance, one of the beams fell off the forklift and crushed plaintiff's hand.
The owner of the freight in question, Cecco Trading, Inc. a/k/a Timber Holdings (Cecco), had contracted with Evans to transport the lumber from Port Newark to Halcor's facility on Wilson Avenue in Newark. Pursuant to that agreement, Evans delivered the lumber in a sealed container on June 29, 2007, several days before the accident. Halcor, in turn, was paid by Cecco to offload and warehouse the lumber at its facility. Evans's business relationship with Halcor dates back to February 6, 2003, when the two entities executed an Agent Agreement relating to the transportation and delivery of freight.
Plaintiff sued Halcor and Carvajal alleging that Carvajal negligently caused the wooden beam to fall on plaintiff's hand, and that Halcor breached its duty to conduct its warehousing activities, including the movement of merchandise, in a reasonably safe manner and in conformance with the Occupational Safety and Health Administration Act (OSHA). Fourteen months later, plaintiff filed an amended complaint naming Evans as a defendant and alleging that, by virtue of their Agent Agreement, Evans was vicariously liable for Halcor's negligence in failing to oversee and maintain Halcor's premises in a reasonably safe condition and in failing to provide plaintiff a safe workplace under OSHA. Halcor and Carvajal ultimately settled with plaintiff and plaintiff's lawsuit against Evans proceeded to a jury trial, which focused on the relationship among the various parties.
The proofs at trial established that Evans's primary business is the international and domestic transportation of freight. These services are provided pursuant to operating authority and licensing privileges issued by the United States Department of Transportation relating specifically to the transportation of freight and operation of vehicles on highways, and are regulated by the Federal Motor Carrier Safety Administration.
The majority of terminals used by Evans, such as the Halcor facility, are operated under a standard agency agreement, which delegates two essential functions to the agent: (1) solicit customers that need freight shipped (shippers); and (2) recruit independent drivers to deliver the freight to the desired location. Accordingly, Evans's Agent Agreement with Halcor expressly provides that the agent (Halcor) is vested "with authority to represent CARRIER [(Evans)] . . . for the purpose of soliciting, picking up, dispatching and properly documenting all freight that CARRIER may legally and properly transport . . . ." Neither the Agreement nor Evans's licensing privileges addresses the handling, loading, offloading, or storage of freight, only its transportation. By the terms of the Agent Agreement, "[a]ll records or papers of any kind relating to CARRIER'S business and any forms and other materials bearing the name or trademark of CARRIER or any division thereof shall remain the property of CARRIER and shall be surrendered to CARRIER upon demand . . . ." In essence, Halcor serves as Evans's New Jersey sales and recruitment arm. As part of its trucking business, Halcor also provides transportation services for different customers in accordance with Evans's licensure and Agent Agreement, for which Halcor pays Evans a certain percentage of sales.
In addition to its business with Evans, Halcor operates a warehouse facility from which it provides warehousing, distribution, and storage services to its approximately twenty customers. Part of the warehousing operation is the unloading and moving of freight about the premises and the storage thereof, for which Halcor is paid directly by its clients and its employees are solely responsible. Evans has no involvement with Halcor's warehousing operations.*fn1
At the conclusion of plaintiff's case and well into the defense presentation, Evans moved, pursuant to Rule 4:37-2 or Rule 4:40-1, for a directed verdict, which the trial court granted, finding that, as a matter of law, Evans owed no duty to plaintiff. The judge concluded:
The inquiry is whether there is sufficient evidence that's been presented which if all reasonable inferences in favor of the non-moving party are accorded to that evidence would be sufficient to sustain a burden. I believe that the evidence that has been presented, whether that's just the plaintiff's evidence or the defense evidence as well is not sufficient to carry that burden and the motion will be granted.
The existence of a duty is of course a question of law. And . . . the existence of a duty and when a duty is to be found to exist has been spelled out by the Supreme Court in a number of cases including the Carvahalo (phonetic) case [and] the Kelly against Grinnell (phonetic) case . . . . There has to be some duty existing on the part of Evans that was breached and that was owed to [plaintiff] and the ...