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William P. Frazier and Elsa Frazier, His Wife v. P.T.C. Excavations*Fn1 and Pell T. Collins

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 6, 2011

WILLIAM P. FRAZIER AND ELSA FRAZIER, HIS WIFE, PLAINTIFFS-RESPONDENTS,
v.
P.T.C. EXCAVATIONS*FN1 AND PELL T. COLLINS,
DEFENDANTS-APPELLANTS,
AND PAT MCVICKER AND PAT MCVICKER EXCAVATING CO., DEFENDANTS.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, L-10583-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 4, 2011

Before Judges Reisner, Sabatino and Ostrer.

Defendants PTC Excavating (PTC) and its owner Pell T. Collins appeal from a judgment dated May 18, 2010, awarding approximately $3 million in damages, plus counsel fees, to plaintiffs William P. Frazier and his wife Elsa Frazier*fn2 .

The case arose from a 2006 accident in which plaintiff was struck and seriously injured by a backhoe on a construction site. Palimar Homes, a residential construction company, was building a housing development in Livingston. Palimar contracted with PTC to perform excavation and related work on the development. PTC hired Pat McVicker, a backhoe operator. Plaintiff, Palimar's site supervisor, was injured when McVicker drove past him with the door of the backhoe open and the door hit plaintiff in the back of the head.

At the trial, the jury was asked to decide whether McVicker was an agent, servant or employee of PTC or whether he was an independent contractor. The jury determined that McVicker was an agent, servant or employee and, therefore, PTC was liable for his negligence. On this appeal, defendants raise the following issues:

I. THE TRIAL COURT'S INSTRUCTION TO THE JURY ON AGENCY, PREDICATED UPON MODEL JURY CHARGE § 5.10I(A), DOES NOT CONFORM WITH ESTABLISHED NEW JERSEY LAW OR THE RESTATEMENT PRINCIPLES UPON WHICH IT IS BASED.

A. THE TRIAL COURT'S JURY INSTRUCTION WAS TAKEN VERBATIM FROM THE RESTATEMENT (2ND) OF AGENCY § 220 (1958), EVEN THOUGH THE DRAFTERS OF THE RESTATEMENT INTENDED IT TO BE USED BY JUDGES, ATTORNEYS AND LEGAL SCHOLARS - NOT AS A BALANCED AND UNDERSTANDABLE STATEMENT OF THE LAW TO BE USED BY A LAY JURY.

B. 'CONTROL' IN THE CONTEXT OF THE JURY CHARGE (AND RESTATEMENT PRINCIPLES) CANNOT BE DEMONSTRATED BY 'SUPERVISORY CONTROL' OVER A SUBCONTRACTOR AS WAS ARGUED BY PLAINTIFF; IT IS ONLY ESTABLISHED BY CONTROL [OVER THE] 'MEANS AND METHODS' OF THE WORK.

C. WHEN THE CONTROL OVER THE 'MEANS AND MANNER' OF THE WORK TEST IS APPLIED IN THIS CASE, ALONG WITH THE ADDITIONAL JURY CHARGE FACTORS, THE ONLY REASONABLE CONCLUSION IS THAT McVICKER WAS AN INDEPENDENT CONTRACTOR AND NOT COLLINS' EMPLOYEE.

D. MANY OTHER STATES SUCH AS CALIFORNIA, NEW YORK AND PENNSYLVANIA PROVIDE JURY CHARGES THAT REMEDY EACH AND EVERY ONE OF THE DEFICIENCIES IDENTIFIED IN THE NEW JERSEY CHARGE.

E. THE INSTRUCTIONS TO THE JURY CHARGED BY THE TRIAL COURT WERE NOT A CLEAR, CORRECT OR FAIR STATEMENT OF THE LAW AND CONSTITUTE 'PLAIN ERROR.'

II. THE DEFENDANT SHOULD HAVE BEEN GRANTED AN INVOLUNTARY DISMISSAL AT THE CLOSE OF THE PLAINTIFF'S CASE OR, ALTERNATIVELY, JUDGMENT SHOULD BE ENTERED FOR THE DEFENDANT BECAUSE THE JURY VERDICT ON AGENCY WAS AGAINST THE WEIGHT OF THE EVIDENCE.

Concluding that none of these arguments warrant disturbing the judgment, we affirm.

In their first point, defendants contend that the Model Jury Charge on Agency § 5.10IA is flawed. "Like forty-four of our sister states, we recognize section 220 of the Restatement (Second) of Agency as the touchstone for determining who is a servant." Carter v. Reynolds, 175 N.J. 402, 409 (2003). As defendants concede, the charge in this case followed the Model Charge which, in turn, incorporates the Restatement Second.

The Model Charge, which the trial court quoted nearly verbatim, reads:

A servant is a person employed to perform services for another in his/her affairs and who, with respect to his/her physical conduct in the performance of the service, is subject to the other's control or right to control. In determining whether one acting for another is a servant or an independent contractor the following elements are to be considered:

(1) the extent of control which, by agreement, the master may exercise over the details of the work;

(2) whether or not one so employed is engaged in a distinct occupation or business;

(3) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;

(4) the skill required in the particular occupation;

(5) whether the employer or the person doing the work supplies the instrumentalities, tools and the place of work for the person doing the work;

(6) the length of time for which the person is employed;

(7) the method of payment, whether by the time or by the job;

(8) whether or not the work is part of the regular business of the employer;

(9) whether or not the parties believe they are in the relationship of master and servant;

(10) whether or not the principal is or is not in business; and

(11) such other factors as may be reasonably considered in determining whether the employer has control or right to control the person employed. [Model Jury Charge (Civil), § 5.10IA.]

"As the charge intimates, 'control by the master over the servant is the essence of the master-servant relationship on which the doctrine of respondeat superior is based.'" Carter, supra, 175 N.J. at 410 (quoting Wright v. State, 169 N.J. 422, 436 (2001)); see also Galvao v. G.R. Robert Constr. Co., 179 N.J. 462, 467 (2004) ("The traditional 'essence' of vicarious liability based on respondeat superior relies on the concept of employer 'control' over an employee."). "Under the control test, 'the relation of master and servant exists whenever the employer retains the right to direct the manner in which the business shall be done, as well as the result to be accomplished, or in other words, not only what shall be done, but how it shall be done.'" Wright, supra, 169 N.J. at 436--37 (quoting N.J. Prop-Liab. Ins. Guar. Ass'n v. State, 195 N.J. Super. 4, 9 (App. Div.), certif. denied, 99 N.J. 188 (1984)).

Although the charge is taken directly from the Restatement, defendants argue that the Restatement language is too technical to be read verbatim to juries. In other words, they contend that the charge is not written in plain language and does not "plainly spell out how the jury should apply the legal principles to the facts as it may find them." Wade v. Kessler Inst., 172 N.J. 327, 341 (2002). Defendants also argue that the charge does not clearly explain the standard for determining liability for an independent contractor. Thus, defendants argue, plaintiff was able to convince the jury that McVicker was an employee, without proving that PTC controlled the means and methods of performing his work.

We conclude that the doctrine of invited error precludes defendants from raising these issues on appeal. See N.J. Div. Youth & Fam. Servs. v. M.C. III, 201 N.J. 328, 340-41 (2010); Brett v. Great Am. Rec., Inc., 144 N.J. 479, 503 (1996).

The defendant cannot beseech and request the trial court to take a certain course of action, and upon adoption by the court, take his chance on the outcome of the trial, and if unfavorable, then condemn the very procedure he sought and urged, claiming it to be error and prejudicial. [State v. Pontery, 19 N.J. 457, 471 (1955).] Defendants not only failed to object to the charge at trial, but over plaintiff counsel's objection that the charge might be confusing, defense counsel insisted on using the Model Charge exactly as worded, stating to the court that he could cogently argue to the jury on "all 11" of the factors set forth in the charge. It was clear from his argument at the charge conference that he believed the charge, with its numerous factors, provided the defense with a tactical advantage. See Brett, supra, 144 N.J. at 503. Attempting to press that advantage, in his summation, defense counsel presented factual arguments as to all of the Model Charge factors, explaining why they supported the conclusion that McVicker was an independent contractor. We will not relieve defendants of an unfavorable jury verdict based on alleged errors in a jury charge that defendants embraced at trial. Pontery, supra, 19 N.J. at 471.

Defendants' arguments are further barred by the related rule that, absent plain error, we will not consider for the first time on appeal issues not raised in the trial court. R. 1:7-2; R. 2:10-2; Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). And even if we consider defendants' arguments, we find no plain error.

In theory, defendants may have a valid point that some further explanation could be helpful to guide a jury in applying the eleven factors in the Model Charge. But we find no likelihood that the charge caused confusion or an unjust result in this case. R. 2:10-2. In their opening remarks and summations, counsel for both sides made clear to the jury that the dispute with respect to McVicker was whether he was an independent contractor, as the defense claimed, or whether he was an employee (as plaintiff's counsel put it - a "day laborer"). As a practical matter, the case was essentially a credibility contest between Pell Collins, who testified that McVicker had his own excavation company, McVicker Excavating Co., and was not an employee of PTC, and plaintiff's witnesses who testified that McVicker was a PTC employee.*fn3 We briefly review the most pertinent evidence.

Plaintiff presented testimony that McVicker had worked for PTC for years. Howard Weinerman, the owner of Palimar, testified that on the many jobs PTC had performed as a subcontractor for Palimar, McVicker used PTC's equipment and Collins directed McVicker as to how to perform the work. According to Weinerman, at some time in the past, McVicker had his own company "prior to working for Pell [PTC]." On cross-examination, Collins admitted that, although McVicker had his own company back in 1991, that company "kind of went down the tubes" prior to the 2006 accident.

There was evidence that PTC paid McVicker as an employee and not as an independent contractor. PTC only produced one check in discovery, as evidence of its payment to McVicker; that check was made payable to McVicker rather than to McVicker Excavating Co. In response to a subpoena, PTC's bank later produced many checks, all payable to McVicker personally rather than to a business entity. On cross-examination, in attempting to explain why he did not produce all of those other checks, Collins stated, "I just figured if you need them that bad you'd find them."

Further, in response to plaintiff's demand for production of documents, PTC did not produce any invoices issued by McVicker or McVicker Excavating Co. for any work McVicker performed. By contrast, PTC billed Palimar for its work by issuing invoices, evidence suggesting that if McVicker was an independent contractor, he would have issued invoices as well. Nor did PTC produce any federal tax 1099 forms issued to McVicker, as would be required if he was an independent contractor. Additionally, PTC did not have any written contract with McVicker or with McVicker Excavating Co. Collins admitted his company paid McVicker $200 a day; that he could give McVicker directions as to how to do the work; and he could fire him.

On the day of the accident, McVicker was driving PTC's backhoe. Collins also admitted that on occasion he permitted McVicker to drive one of the PTC company vehicles to McVicker's home in Pennsylvania. All of this supported a finding that McVicker was an employee. The evidence also suggested that PTC was trying to conceal the nature of that employment relationship. Shortly after beginning their deliberations, the jury asked for definitions of servant, agent and employee. Without objection, the judge repeated the Model Charge, with an explanation of the parties' relevant claims. There was no indication that the jury was confused. As defense counsel noted on the motion for a new trial, the jury returned a verdict for plaintiffs after an hour and twenty minutes of deliberation. Based on the trial evidence, we find no basis to disturb the verdict, despite defendants' theoretical assertions that the Model Charge could be improved.

In their Point I C and Point II, defendants argue that their motion to dismiss at the close of plaintiffs' case, R. 4:37-2, should have been granted, or in the alternative that the verdict was against the weight of the evidence. See Dolson v. Anastasia, 55 N.J. 2, 5-6 (1969). As illustrated by the preceding discussion of the evidence, these contentions are not supported by the record and need not be addressed further in this opinion. R. 2:11-3 (e)(1)(E).

Affirmed.


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