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

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...


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