On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-2906-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, Nugent and Kestin.
Plaintiff George Onda was injured when he stepped into a drain and fell at a construction site on the premises of the Cranbury Inn. He initially filed suit in the Law Division seeking to recover monetary damages for his injuries from Gloria and Thomas Ingegneri, individually and in their capacity as representatives of the corporate entities associated with the ownership and management of The Cranbury Inn (Cranbury Inn defendants). Plaintiff also sought relief from defendant Kilby Management Inc., the entity retained by the Cranbury Inn defendants to manage and supervise the construction project at The Cranbury Inn.*fn2
The Cranbury Inn defendants filed a responsive pleading to plaintiff's allegations and a cross-claim against Kilby Management seeking contribution and indemnification. On the day of trial, the court heard plaintiff's in limine motion to preclude the application of the Joint Tortfeasors Contribution Law (JTCL), N.J.S.A. 2A:53A-1 to -5, and bar the Cranbury Inn defendants from arguing that Kilby Management was the entity responsible for ensuring the safety of the construction site. When the court denied the motion, plaintiff voluntarily dismissed his claims against Kilby Management. The trial court also denied plaintiff's motion to amend the complaint against the Cranbury Inn defendants by adding a count for negligent failure to ensure that Kilby Management maintained liability insurance to cover claims arising from its management of the Cranbury Inn construction project.
The jury returned a verdict finding no cause as to the Cranbury Inn defendants, and apportioning liability for the accident between Kilby Management (69% negligent) and plaintiff (31% negligent). Plaintiff filed a motion for a new trial arguing that the court erred when it failed to instruct the jury that Cranbury Inn's duty as a landowner was non-delegable. The court rejected this argument and denied plaintiff's motion to set aside the jury's verdict.
Plaintiff now appeals the court's orders: (1) denying his motion to strike the Cranbury Inn defendants' cross-claim against Kilby Management; (2) denying his motion for a new trial; and (3) denying his motion to amend his complaint to include a claim against the Cranbury Inn defendants for failing to ensure Kilby Management had liability insurance. We affirm.
We derive the following facts from the record developed before the trial court.
In February 2005, the Cranbury Inn defendants retained Kilby Management to oversee the construction of a new kitchen facility and banquet hall on the premises of The Cranbury Inn. Plaintiff's employer, American Food Service Equipment, Co. entered into a contract with the Cranbury Inn defendants to supply, deliver, and install the kitchen equipment.
Plaintiff was injured while delivering kitchen equipment to The Cranbury Inn. The record shows that plaintiff was familiar with the layout and general condition of the Cranbury Inn construction site before the accident. He described the project as a "rather large job," involving not only the delivery of mobile equipment for operating the restaurant, but the installation of "two walk-in boxes," which he described as "a big refrigerator room that had to be delivered in panels" and physically assembled at the site. Plaintiff performed the work of assembling the "refrigerator room" approximately one week before the accident.
On the day of the accident, plaintiff and his co-worker Jose Caraballo were dispatched to deliver to The Cranbury Inn stainless steel work tables, sinks, refrigerators, ice machines, and a refrigerated sandwich unit. Plaintiff and Caraballo had a close working relationship; they depended on each other, and "anticipated each other's wants and needs."
The parking lot of The Cranbury Inn was not fully paved on the day of the accident. As a result, plaintiff and Caraballo parked the delivery truck "about 40 or 50 feet away" from the delivery entrance. According to plaintiff, when he entered the kitchen area, the floor was "totally covered in . . . a pinkish roll of paper [of] about four foot . . . wide . . . underlayment . . . rolled out on the floor and taped down to protect the new tile floor." Plaintiff testified that he did not see any holes that day due to the paper covering. He admitted, however, that he had previously seen open drains and holes in the floor, but he did not pay particular attention ...