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Danielle Fry v. Pepsi Bottling Group

July 3, 2012


On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-0288-09.

Per curiam.


Submitted June 6, 2012

Before Judges Lihotz and Waugh.

Plaintiff Danielle Fry appeals from two Law Division orders dismissing her claims for personal injury against defendants Pepsi Bottling Group,*fn1 Palroll Inc.*fn2 (Palroll), trading as Lakeside Tavern, Robin Rohl, John Rohl,*fn3 and 7Up & RC Soda Dispensing Company (dispensing company). We affirm.

We discern the following facts and procedural history from the record on appeal.

In April 2007, Fry was employed as a cook by Palroll at the Lakeside Tavern in Branchville. Palroll operates the tavern and also owns the building in which it is located. The Rohls are the owners of Palroll.

On April 13, Roy Wenrich, an employee of the dispensing company, delivered fifteen canisters of soda and one CO2 canister to the tavern. They were placed in a narrow passage in or near the tavern's kitchen. According to Wenrich, he placed the canisters against a fixed metal shelf. There were two rows of eight canisters. According to Robin, Wenrich was instructed to put the canisters against the shelf to keep them "out of the way." The canisters would eventually be placed in a storage room by someone other than the deliveryman.

While the canisters were being delivered, Fry was making pasta salad. She had walked from the stove and through the narrow passage to get a box of pasta from the top of the refrigerator without a problem. However, when she went to return the box to the refrigerator ten or twenty minutes later, the kneecap of her right leg hit the side of one of the canisters, causing her to fall and sustain injuries. According to Fry, the canisters had been placed closer to the refrigerator than usual.

Fry filed a complaint in April 2009, and an amended complaint in June. After defendants answered, the parties engaged in discovery. Defendants filed separate motions for summary judgment, which Fry opposed. Following oral argument on June 24, 2011, the motion judge placed a very brief oral decision*fn4 on the record and dismissed the amended complaint. He concluded that Fry could not make a claim against Palroll and the Rohls because they were her employer. He further concluded that Wenrich had no duty of care under the circumstances of this case. This appeal followed.

On appeal, Fry argues that the judge erred in dismissing her claims. It is well-established that our review of a trial judge's conclusions of law is de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) ("A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference."). Consequently, we review a grant of summary judgment de novo, applying the same standard as the trial court under Rule 4:46-2(c). Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 539-40 (1995); McCann, supra, 405 N.J. Super. at 563 (citing Liberty Surplus, supra, 189 N.J. at 445-46).

In addressing a motion for summary judgment, a court must "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill, supra, 142 N.J. at 540; see also R. 4:46-2(c). Because the motion judge granted summary judgment in favor of defendants, we must construe the facts in the light most favorable to plaintiff in determining whether defendants were entitled to judgment as a matter of law. Liberty Surplus, supra, 189 N.J. at 445.

We begin with the judge's determination that Fry could not make a claim against her employers, Palroll and the Rohls, even though they were also owners of the building. As an employee of Palroll, Fry's right to recover from her employer for work-related personal injury would ordinarily be limited to claims brought under the Workers Compensation Act (Act), N.J.S.A. 34:15-1 to -142. See N.J.S.A. 34:15-8. The same bar applies to claims against fellow employees. Barone v. Harra, 77 N.J. 276, 279 (1978).

Fry attempts to circumvent those restrictions by making claims against Palroll and the Rohls in their capacity as landlords of the tavern. However, as we held in Kaczorowska v. Nat'l Envelope Corp., 342 N.J. Super. 580, 592 (App. Div. 2001) (citations omitted), a "'dual capacity'" approach is "disfavored, if not outright disapproved" in New Jersey. Here, the alleged negligence related to a transient condition in the workplace, rather than a structural or similar ...

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