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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 problem with the building. For that reason, we conclude that Fry's claims against Palroll and the Rohls are barred by the Act.

Fry also contends that the judge erred in concluding that Wenrich, the dispensing company's employee, had no duty of care in making the delivery. She relies on La Russa v. Four Points at Sheraton Hotel, 360 N.J. Super. 156 (App. Div. 2003). In that case, a deliveryman tracked a significant amount of melting snow onto the kitchen floor of a hotel, creating a five-foot wide puddle that caused an employee to slip and fall. Id. at 159. The trial judge dismissed the complaint. Ibid.

The appeal turned on whether the deliveryman owed a duty to notify the hotel of the potential hazard created by the melted snow, rather than whether he was negligent in bringing snow into the premises. See id. at 160-62. In outlining the general concepts to be applied in determining whether a duty exists, we noted that "[w]e impose a duty where foreseeable events posing a risk of harm necessitate that a duty of due care be imposed on those able to prevent the harm," that "[i]ncluded within the scope of that duty is the obligation to warn of a known or apparent danger," and that "[w]e have declined to impose a duty where the circumstances were so remote that the imposition of such duty would impose an unfair burden." Id. at 160-61 (citations omitted).

We then analyzed the application of the governing principles to the case then before us:

Here, the risk that someone would slip on the five-foot puddle was both serious and foreseeable. This condition and attendant risk was in a corridor between a restaurant and kitchen and immediately adjacent to a cooler. Defendant asserts that the hotel had the absolute duty to clean up the puddle. A landowner has a non-delegable duty to use reasonable care to protect invitees against known or reasonably discoverable dangers. The hotel certainly had a duty to plaintiff. But that obligation does not relieve the party that created the hazard from liability.

Similarly, defendant argues that as an independent contractor, it had no responsibility to either notify or clean the area. Defendant was an independent contractor. But that status alone is not dispositive.

Defendant's assertion that it had no duty to warn of an open and obvious danger is also misplaced as such notion only applies to the duty of the possessor of land. . . . Although not instructed in the manner of unloading, defendant was directed to an area for unloading and performed that function for the benefit of itself and the hotel.

Defendant's relationship to the hotel is a factor in determining whether to impose a duty. So, too, is the parties' opportunity and ability to exercise care. The delivery person was on the premises to serve the common interests of the hotel and defendant. The results of tracking in enough snow and water to create a five-foot puddle were obvious and easily foreseeable; the severity of the harm created by this condition readily apparent; the opportunity to notify of the condition and insure prevention of the obvious danger readily available and the fairness of imposing such duty indisputable. [Id. at 162-64 (internal citations, quotation marks, and footnote omitted).]

After rejecting the defendants contention that the giving of such warnings was not "the custom in the industry," we concluded:

The scope of the duty is determined by the totality of the circumstances. Factors used to determine the scope of a duty include the risk of harm and practicality of preventing it, and where the relevant behavior is easy to correct and the consequential harm serious, it is fair to impose a duty. We acknowledge that delivery persons will track in snow or water when the weather conditions are "icy, snowy, [and] rainy." We recognize as well that slips and falls may occur on even the smallest amount of water or other debris, but when the accumulation of water approximates five feet in area, the duty of notification is neither burdensome nor unreasonable recognizing the danger involved and the probability of a fall. Balancing the factors enunciated by the Court in [J.S. v. R.T.H., 155 N.J. 330 (1998)], we conclude that the delivery person had a duty to notify the hotel of the obvious danger caused by his activities. [Id. at 165 (internal citations and quotation marks omitted).]

The issue in this case is whether Wenrich had a similar duty under the circumstances of this case. For the purposes of our analysis, we assume that he placed the canisters closer to the refrigerator than usual and, for that reason, that they made the passageway through which Fry was walking narrower than usual. We nevertheless conclude that there is no general duty that a deliveryman notify business owners and employees that deliveries have been made and items placed in the general area requested for such deliveries. This case is significantly different from LaRussa because in this case there was no unusual hazard similar to the large pool of water at issue there. A large pool of water of the type involved in LaRussa is both unexpected and difficult to see. Here, even assuming the canisters were placed somewhat differently, their general location was expected and, unlike a pool of clear water, they were not a hidden hazard.

For the reasons stated above, we affirm the order dismissing Fry's amended complaint.


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