The opinion of the court was delivered by: Kugler, United States District Judge:
NOT FOR PUBLICATION (Doc. No. 27)
This is a personal injury case. Plaintiff Michael Ceneviva fell off a ladder while working for a subcontractor hired by Defendant NVR, Inc. d/b/a Ryan Homes. Plaintiff claims that he fell because Defendant Richard Rickards, an employee of Ryan Homes, was negligent in holding the ladder. Presently before the Court is Defendants' motion for summary judgment. Because there is a material issue of fact as to whether Rickards assumed a duty to hold the ladder, and because an employer may be liable for the negligence of its employees committed while acting within the scope of their employment, the Court denies Defendants' motion for summary judgment.
Ryan Homes constructs single family residences. Sometime before 2008, Ryan Homes constructed a residence on Ardmore Road in Mays Landing, New Jersey (the "Property"). Ryan Homes issued the purchasers of the Property a warranty for the residence. In October 2008, the homeowners contacted Ryan Homes about a water leak between the brick and flashing on the front side of the home. Rickards, a service manager for Ryan Homes, handled the homeowners' complaint. In order to cover necessary repairs, Ryan Homes contracted with Metal Tech Roofing and Siding, Inc. ("Metal Tech"). Pursuant to the contract, Metal Tech performed work for Ryan Homes as an independent contractor. Metal Tech employed Plaintiff as a job supervisor. As part of his job, Plaintiff performed service and inspection work regarding roofing and siding.
In response to the reported leak, Ryan Homes asked Metal Tech to send a representative to the Property to investigate the leak. Metal Tech sent Plaintiff. Ryan Homes also sent Rickards to assist with the inspection. Plaintiff and Rickards met at the Property on October 30, 2008. They each present different stories regarding Plaintiff's inspection and fall.
Plaintiff asserts that when Rickards introduced himself to Plaintiff at the Property, Rickards told Plaintiff: "I may not be much help, but at least I can hold the ladder for you." (Ceneviva Dep. 31:15-32). Plaintiff climbed the ladder a total of four times during the inspection. The first time, Plaintiff arranged the ladder and asked Rickards to hold it while he climbed. Plaintiff saw Rickards holding the ladder as he climbed, but Plaintiff began descending the ladder without checking whether Rickards was holding the ladder. When Plaintiff got to the bottom of the ladder, he saw Rickards holding the ladder with one hand. Plaintiff then moved the ladder. Plaintiff climbed the ladder the second time without talking to Rickards, but when Plaintiff climbed back down, he observed Rickards holding the ladder with one hand. Plaintiff moved the ladder again. This time, Plaintiff asked Rickards to hold the ladder before he ascended and before he descended. Plaintiff moved the ladder a fourth time. He again asked Rickards to hold it. Plaintiff climbed up the ladder and began removing a caulk gun from his tool pouch. Plaintiff then "heard a noise of the feet [of the ladder] sliding[.]" (Ceneviva Dep. 89:11-16). The ladder came out from under him, and he fell to the ground. Plaintiff did not see where Rickards was at the time the noise occurred.
Rickards, on the other hand, asserts that Plaintiff never asked him to hold the ladder and that he never offered to hold the ladder. (Rickards Dep. 39:18-40:10). According to Rickards, he "didn't feel" that holding the ladder "was part of [his] job." (Rickards Dep. 40:8-10). Rickards claims that the fourth time Plaintiff moved the ladder, Plaintiff was doing repair work instead of inspection work. Thus, Rickards decided to stay on the property and "do other things" while Plaintiff performed the repairs. (Rickards Dep. 45:8-46:19). During Plaintiff's fourth ascent up the ladder, Rickards did not know where the ladder was. (Rickards Dep. 44:25-12). Rickards claims that he was either at the sidewalk or walking to the sidewalk, when Plaintiff fell.
Plaintiff originally filed suit in state court asserting a negligence claim against Defendants and a loss of consortium claim on behalf of Mrs. Cenevivia. Defendants removed the matter to this Court based on diversity jurisdiction. Defendants now move for summary judgment. Defendants' sole argument is that they did not owe a duty to Plaintiff because he was employed by Metal Tech and Metal Tech was an independent contractor for Ryan Homes. Plaintiff responds that Defendants are liable because Rickards assumed a duty to hold the ladder while acting within the scope of his employment.
Summary judgment is appropriate where the Court is satisfied that "there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). A genuine issue of material fact exists only if the evidence is such that a reasonable jury could find for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When the Court weighs the evidence presented by the parties, the Court is not to make credibility determinations regarding witness testimony. Sunoco, Inc. v. MX Wholesale Fuel Corp., 565 F. Supp. 2d 572, 575 (D.N.J. 2008). "The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson, 477 U.S. at 255.
However, to defeat a motion for summary judgment, the nonmoving party must present competent evidence that would be admissible at trial. See Stelwagon Mfg. Co. v. Tarmac Roofing Sys., 63 F.3d 1267, 1275 n.17 (3d Cir. 1995). The nonmoving party "may not rest upon the mere allegations or denials of" its pleadings and must present more than just "bare assertions [or] conclusory allegations or suspicions" to establish the existence of a genuine issue of material fact. Fireman's Ins. Co. of Newark, N.J. v. DuFresne, 676 F.2d 965, 969 (3d Cir. 1982) (citation omitted); see Fed. R. Civ. P. 56(e). "A party's failure to make a showing that is 'sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial,' mandates the entry of summary judgment." Watson v. Eastman Kodak Co., 235 F.3d 851, 857-58 (3d Cir. 2000) (quoting Celotex Corp., 477 U.S. at 322).