January 12, 2012
GEORGE ONDA, PLAINTIFF-APPELLANT,
GLORIA INGEGNERI, THOMAS INGEGNERI, THE CRANBURY INN, INC., THE CRANBURY INN PROPERTIES, INC., CRANBURY INN HOLDINGS, INC., T/A THE CRANBURY INN, DEFENDANTS-RESPONDENTS, AND ARIEL F. ABUD, M.D.; TRENTON NEUROLOGICAL SURGEONS ASSOCIATES, P.A., KILBY*FN1 MANAGEMENT COMPANY, KILBY MANAGEMENT, INC., RICHARD KILBY, INDIVIDUALLY AND T/A KILBY MANAGEMENT COMPANY, DEFENDANTS.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 18, 2011
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 because he was not concerned "with that part of the building." He also testified that no one at the site gave him any instructions regarding the condition of the floor.
The accident occurred as plaintiff and Caraballo were delivering a stainless steel table that weighed between 100 to 120 pounds and was approximately 32 inches wide, 10 feet long, and 34 inches high. Caraballo carried one end of the table walking forward as plaintiff walked backward holding the other end. Plaintiff indicated that he was particularly mindful not to trip "over any of the electrical pipes. . . ." Although the temporary lighting fixtures were not turned on, plaintiff testified that there "was enough ambient light coming from the wide double doors."
The accident occurred as plaintiff stepped back with his left foot. This caused him to "completely f[a]ll into [a] hole," which "immediately jarred [his] back." He said he fell "right back down onto [his] butt and jarred the top of [his] head right down to [his] buttocks." He estimated the hole was about ten-by-ten or twelve-by-twelve inches, and between eight and twelve inches deep. Plaintiff identified photographs taken the day after his accident showing "that the floor drain [was] still covered with the paper, but the paper had been taken off the rest of the floor."
Cranbury Inn defendant Thomas Ingegneri was not on the premises on the day of the accident. He and his wife had gone to Ocean Grove for the weekend and returned four or five days after the accident. Based on the "deal" he had with Kilby, Ingegneri testified that he expected the kitchen to have been substantially completed upon his return from Ocean Grove.
Ingegneri did not have regular contacts or direct dealings with any of the subcontractors working on the project.
Gloria Ingegneri corroborated her husband's testimony. She testified that neither she nor her husband saw the kitchen area before leaving for vacation. According to Gloria, she was not allowed in the kitchen because they were tiling the - when they started tiling the floor over the doorway areas, when they started up in this corner, you could go in, you kind of saw that progressing a little bit. And this kitchen is a big kitchen.
Once they started covering up the doorway areas, you weren't allowed in there because they had those little white thingy spacers and the tile -- Orlando Oliva was the plumbing subcontractor. He prepared the kitchen area for the installation of the equipment plaintiff and Caraballo delivered. Oliva testified that he covered the kitchen floor drains with steel grates, which were in turn covered in duct tape or with hard plastic. According to Oliva, he did not remember seeing the duct tape removed from any of the floor drains when he returned to the kitchen area days after the equipment was delivered.
Kilby assigned Martin Maul to act as project manager for the Cranbury Inn renovations. Maul also recruited and engaged the subcontractors who worked on the project. Maul testified that he "pretty much controlled everything on [the] job." At Maul's direction, Kilby employees placed pink paper down on the kitchen floor to protect the newly installed tiles, or in Maul's own words, so: "nobody would . . . walk on [the] new tile floor."
According to Maul, the kitchen floor drains were installed before four or five inches of concrete were poured; the drains were covered when they were installed to avoid damage or clogging from the concrete. The kitchen area was tiled before equipment was delivered. Maul testified that, to his knowledge, no Kilby employee placed pink paper over any uncovered drain holes in the kitchen. He also disputed that the entire floor was ever covered in the pink paper.
At the charge conference, plaintiff's counsel requested that the court instruct the jury that the duty of care owed to a business invitee is not delegable. That means an owner cannot assign it nor transfer it to another.
The duty always remains with the owner.
Thus, if you find that the premises were in a dangerous condition on the day of the accident and that dangerous condition caused injury to the plaintiff, that you shall find that defendant Cranbury Inn was negligent.
Although the court did not give the jury this precise instruction, it nevertheless charged the jury that with regard to the Cranbury Inn and Kilby Management, an owner or occupier of property is liable to a person who comes onto the property for harm caused by the owner or occupier's failure to exercise reasonable care in conducting an activity upon the property.
The owner or occupier of the property owes a duty to exercise reasonable care in the conduct of activities on the premises to persons who are allowed or have a right to be on the premises. Thus, the owner/occupier of the property must exercise reasonable care in conducting activities on the property so as to avoid injury to persons who are invited or who are otherwise allowed or have a right to be on the property.
The basic duty of a proprietor [of] premises to which the public is invited for business purposes . . . is to exercise reasonable care to see that one who enters the premises upon that invitation has a reasonably safe place to do that which is within the scope of the invitation.
Now, the owner/occupier of premises can be held liable for injury to persons caused by conditions negligently created on the premises by an independent contractor, as well as for the owner's independent negligence. A general contractor, as the occupier in control of the premises under construction is burdened with a duty similar to that owed by the landowner to business invitees.
Against this backdrop, plaintiff argues the court's instructions to the jury, coupled with its earlier ruling denying his motion to preclude the Cranbury Inn defendants from asserting their cross-claims against Kilby, erroneously undermined the principle that owners of land have a non-delegable duty to ensure the safety of those invited onto their property. We disagree.
It is well-settled that, "absent certain exceptions, one who engages an independent contractor is not liable for the negligence of that contractor in the performance of the contract." Baboghlian v. Swift Elec. Supply Co., 197 N.J. 509, 518 (2009) (citing, inter alia, Majestic Realty Assoc., Inc. v. Toti Contracting Co., 30 N.J. 425, 430-32 (1959)). More akin to the facts here is the Court's decision in Alloway v. Bradlees, 157 N.J. 221 (1999).
The issue in Alloway concerned the duty of care owed by a general or prime contractor to ensure the safety of an employee of a subcontractor. Id. at 225. Because the suit brought by the plaintiff in Alloway had been dismissed on the defendants' motion for summary judgment, the Court was required to view all facts in the light most favorable to the plaintiff. Id. at 232. In reversing the grant of summary judgment, the Court in Alloway reaffirmed the principle we articulated in Kane v. Hartz Mountain Industries, 278 N.J. Super. 129, 143 (App. Div. 1994), aff'd o.b., 143 N.J. 141 (1996):
[T]he paramount consideration of a worker's safety is more clearly placed in focus by a more comprehensive rule which makes the primary contractor and each tier of subcontractor responsible for the safety of the workers under them on general negligence principles. This appears preferable to limiting liability to a specific finding of a violation of a regulation, which in some instances may be obscure, vague or difficult to comprehend or apply. [Alloway, supra, 157 N.J. at 235 (alteration in original).]
The "general negligence principles" referred to by the Court in Alloway were first articulated by the Court in Majestic. Under Majestic, a landowner is not liable for the negligence of an independent contractor unless: (1) the landowner retains control of the manner and means of the doing of the work which is the subject of the contract; (2) he engages an incompetent contractor; or (3) the activity contracted for constitutes a nuisance. Majestic, supra, 30 N.J. at 431.
Here, the record supports the jury's verdict. The evidence shows that the Cranbury Inn defendants relied on Kilby to oversee the construction and renovation of the kitchen area. The trial court correctly explained the relevant legal principles to the jury and correctly denied plaintiff's motion attempting to preclude the Cranbury Inn defendants from properly asserting their cross-claim against Kilby as the independent contractor responsible for the safety of the construction site.
We next address plaintiff's argument concerning the trial court's denial of his motion to amend the complaint to include a cause of action against the Cranbury Inn defendants for Kilby's failure to secure general liability insurance. On the day of trial*fn3 , the court addressed plaintiff's in limine motion seeking an order precluding operation of the Joint Tortfeasor's Contribution Act and/or dismissing defendant Ingenieri's claim for contribution against Kilby Management, Inc. under the Joint Tortfeasor's Act against defendant, Kilby Management Co., or permitting plaintiff to recover the entire amount of any judgment in favor of plaintiff against defendants, Ingenieri d/b/a the Cranbury Inn, but then preserving its right of contribution from defendant, Kilby Management Co., or in the alternative, amending the complaint to permit plaintiff to assert a cause of action against defendants Thomas Ingenieri, Gloria Ingenieri, individually and trading as The Cranbury Inn for negligence in failing to investigate and otherwise obtain proof of insurance coverage for defendant, Kilby Management, Inc., as required in their contract with Kilby Management Inc. (Emphasis added.)
In denying the relief highlighted, the court noted its concern with allowing the jury to "hear who has insurance and who doesn't." The court also emphasized that the motion had been filed without legal memorandum or authority supporting amending plaintiff's complaint to include, at this juncture of the litigation, a separate hybrid cause of action sounding in both contract and tort.
Under Rule 4:9-1, after the case has been placed upon the trial calendar, a party may amend his or her pleading only "by written consent of the adverse party or by leave of court which shall be freely given in the interest of justice." However, the trial court retains the discretion to deny such a motion. Franklin Med. Assocs. v. Newark Pub. Sch., 362 N.J. Super. 494, 506 (App. Div. 2003). The court may deny a motion to amend because the merits of the claims are marginal or if the substance of the proposed amendment is not directly relevant to the underlying cause of action. Cutler v. Dorn, 196 N.J. 419, 441 (2008). The court may also deny a motion to amend a pleading that was not brought or prosecuted in a timely fashion. Morales v. Acad. of Aquatic Scis., 302 N.J. Super. 50, 56 (App. Div. 1997).
We discern no basis to overturn the court's discretionary ruling denying plaintiff's motion to amend his pleading to include a new and novel theory of liability against the Cranbury Inn defendants. Although plaintiff may have filed the motion months earlier, it was not considered by the court until the day of trial. There is nothing in the record that explains this delay or, most importantly, that implicates the Cranbury Inn defendants in this untimely outcome. The court was also correctly concerned about disclosing the existence of insurance to the jury. Under N.J.R.E. 411 evidence of liability insurance is inadmissible on the issue of negligence, and may be excluded under N.J.R.E. 403 for its prejudicial impact even if it is otherwise admissible.