United States Court of Appeals,

Third Circuit.

Katrina CONLON, Individually and as Administratrix of the Estate of Jared Lee Conlon, Deceased

v.

TRANS NATIONAL TRUCKING, LLC; William Bradley McDaniels; Cornelius Carlos Hart.

Trans National Trucking, LLC; Cornelius Carlos Hart, Appellants.

 

No. 11–3855.

Submitted under Third Circuit LAR 34.1(a) Oct. 29, 2012.

Filed Dec. 4, 2012.

 

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civil No. 2–09–cv–05362), Magistrate Judge: Hon. Carol S. Wells.FN1

 

FN1. The parties consented to have a magistrate judge conduct all proceedings in this case, and on December 16, 2010, District Court Judge Cynthia M. Rufe entered an order referring the case to Judge Wells.

 

David J. Colleran, Esq., Philadelphia, PA, for Katrina Conlon, Individually and as Administratrix of the Estate of Jared Lee Conlon, Deceased.

 

Rex F. Brien, Jr., Esq., William M. Connor, Esq., Christie, Pabarue, Mortensen & Young, Marc F. Ullom, Esq., Rawle & Henderson, Philadelphia, PA, For Trans National Trucking, LLC; William Bradley McDaniels; Cornelius Carlos Hart.

 

Before SLOVITER, AMBRO and ALDISERT, Circuit Judges.

 

OPINION OF THE COURT

ALDISERT, Circuit Judge.

*1 Appellants Trans National Trucking, LLC and Cornelius Carlos Hart appeal from a judgment in the amount of $3,604,599.86, which was entered in the United States District Court for the Eastern District of Pennsylvania after a jury verdict in favor of Appellee, Katrina Conlon. Mrs. Conlon, in her own right and as administratrix of the Estate of her husband Jared Conlon, sued Appellants under a negligence theory after Conlon died while repairing the brakes of a truck driven by Hart and owned by Trans National Trucking. She brought claims under Pennsylvania’s Wrongful Death Act, 42 Pa.C.S.A. § 8301, and Survival Act, 42 Pa.C.S.A. § 8302.FN2 This appeal asks us to decide whether the District Court erred by (1) denying Appellants’ motions for judgment as a matter of law under Rule 50 of the Federal Rules of Civil Procedure or, in the alternative, Appellants’ motion for a new trial under Rule 59(a) of the Federal Rules of Civil Procedure; (2) not allowing reference to Conlon’s past criminal convictions; (3) not allowing reference to statements in Mrs. Conlon’s divorce petition that mentioned Conlon’s past criminal convictions; (4) admitting photos of Conlon’s deceased body, taken shortly after his death; and (5) refusing to grant remittitur. We will affirm.

 

FN2. The jury awarded Mrs. Conlon $2,223,289.00 under the Wrongful Death Act, and $1,270,280.00 under the Survival Act, for a total of $3,493,569.00 in damages. On July 26, 2011, following a motion by Mrs. Conlon for delay damages, an amended judgment was entered in the amount of $3,604,599.86.

 

I.

Because we write primarily for the parties, who are familiar with the facts and proceedings of this case, we will revisit them only briefly.

 

This lawsuit emanates from an unfortunate event in which Jared Conlon, an employee of a mobile maintenance company, was called to examine the brakes of a truck placed out of service. Early in the repairs, Conlon asked Hart to put the truck in gear and pump the brakes so that air could be bled out of the brake lines. After the task was completed, Hart did not return the gear to neutral. Conlon then proceeded to work on the truck for several hours. During that time, Conlon raised the truck’s right rear-corner with a bottle jack to gain access to the underside of the truck. Near the end of the repair process, he asked Hart to start the truck so that he could listen for a leak in the brake system’s tubing. Thereafter, Conlon crawled under the truck and Hart started the engine. Tragically, as a result of the truck still being in gear, it immediately lunged forward, knocking itself from the bottle jack. A U-bolt on the truck’s undercarriage crushed Conlon’s skull, killing him instantly. He left a wife and two sons, ages four and one.

 

II.

The District Court had jurisdiction under 28 U.S.C. § 1332 and § 1441. This Court has jurisdiction under 28 U.S.C. § 1291. For the reasons discussed below, we will affirm the judgment of the District Court.

 

III.

A.

First, Appellants argue that the District Court erred by refusing to grant their motions for judgment as a matter of law under Rule 50 or, in the alternative, their motion for a new trial under Rule 59(a). See Brief of Appellants 11, 14; Defendants’ July 27, 2011 Motion. They argue that “the jury’s finding of no contributory negligence on the part of [Conlon] constitutes a clear miscarriage of justice warranting a new trial.” Brief of Appellants 9. They further argue that “the jury ignored uncontested evidence at trial establishing [Conlon’s] own causal negligence” and that “it can only be assumed that the jury’s verdict was the result of undue sympathy for [Mrs. Conlon] or some other improper motive.” Id. at 14.

 

*2 We review de novo a court’s denial of a motion for judgment as a matter of law, “viewing the evidence in the light most favorable to the prevailing party.” Acumed LLC v. Advanced Surgical Servs., Inc., 561 F.3d 199, 211 (3d Cir.2009) (citation omitted). We review for abuse of discretion a court’s denial of a motion for a new trial where the movant claims that the verdict was against the weight of the evidence. Am. Bearing Co., Inc. v. Litton Indus., Inc., 729 F.2d 943, 948 (3d Cir.1984). A new trial may be granted “because the verdict is against the weight of the evidence” only “when the record shows that the jury’s verdict resulted in a miscarriage of justice or where the verdict, on the record, cries out to be overturned or shocks [the] conscience.” Marra v. Phila. Hous. Auth., 497 F.3d 286, 309 n. 18 (3d Cir.2007) (citation omitted). Based on our review of the record, we see no basis for granting this extraordinary relief and will affirm.

 

The defendant has the burden of proving contributory negligence. Rice v. Shuman, 519 A.2d 391, 395 (Pa.1986). To succeed on this issue, it was “incumbent” upon Appellants “to produce the evidence and to persuade the jury on this issue.” See id. Based on the record before us, we hold that it was well within the jury’s province as the finders of fact to conclude that Conlon was not contributorily negligent, and this Court will not disturb its permissible conclusion.

 

Appellants had every opportunity to retain a mechanic expert to evaluate, comment on and, if appropriate, criticize Conlon’s conduct. They failed to do so. Rather, they attempted to establish his alleged negligence through the cross-examination of Plaintiff’s own trucking expert, Brooks Rugemer, as to whether Conlon could have performed his functions differently. Appellants emphasize throughout their brief that Rugemer stated that he “most likely” would not allow a mechanic he was supervising to have his head under the frame of a truck while it was being started. See Brief of Appellants 6, 11; Reply Brief of Appellants 1–3. Despite this limited testimony by Plaintiff’s trucking expert, we hold that it was well within the jury’s province to find that Conlon’s conduct did not fall below the applicable standards of conduct for a mechanic in his position and to find that Appellants had not met their burden of proving that he was contributorily negligent. We will not disturb the jury’s conclusion.

 

B.

Second, Appellants argue that the District Court erred by “barring all reference to [Conlon’s] criminal convictions and fines” because this “was relevant to the issue of damages.” Brief of Appellants 14, 17. On June 24, 2011, the District Court issued an order stating that Appellants could “confront [Mrs. Conlon] with statements she made in her divorce petition that [Conlon] was not ‘situated to provide proper care’ for his children” but that they could not “otherwise mention [Conlon’s] prior criminal history.” App. 25. Based on this Order and the parties’ filings in the District Court, it is our understanding that the District Court barred reference to Conlon’s convictions after balancing the probative value of such evidence against the danger of unfair prejudice under Rule 403 of the Federal Rules of Evidence. See Plaintiff’s June 3, 2011 Motion in Limine to Preclude Any and All Evidence of Criminal History 2.

 

*3 Rule 403 states that relevant evidence may be excluded “if its probative value is substantially outweighed by a danger of … unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” This Court has stated that “[i]f judicial restraint is ever desirable, it is when a Rule 403 analysis of a trial court is reviewed by an appellate tribunal.” United States v. Scarfo, 850 F.2d 1015, 1019 (3d Cir.1988) (alteration in original) (quoting United States v. Long, 574 F.2d 761, 767 (3d Cir.1978)). Consequently, we review a district court’s decision regarding the admissibility of evidence for abuse of discretion. United States v. Higdon, 638 F.3d 233, 238 (3d Cir.2011). We will affirm.

 

Appellants state that Conlon owed “significant criminal fines” that should have been considered by Plaintiff’s expert economist when calculating the loss-of-future-earnings figure. Brief of Appellants 17. Appellants state also that evidence of Conlon’s convictions was relevant to determining the appropriate amount of damages to assign for loss of “guidance, tutelage and moral upbringing” under Mrs. Conlon’s wrongful death claim, especially considering that Mrs. Conlon “repeatedly testified at trial about the sterling qualities of [Conlon] as a husband and father.” Id. at 19.

 

Even if we accept Appellants’ argument that evidence of Conlon’s past convictions was relevant to the issue of damages, the District Court still had discretion to exclude such evidence if it determined that the evidence was unfairly prejudicial.FN3 Appellants rely heavily on Cobige v. City of Chicago, 651 F.3d 780, 784–785 (7th Cir.2011), to support their position that the District Court exceeded the permissible grounds of discretion. We are not persuaded, however, by Appellants’ analogy to this non-binding Seventh Circuit case, which is easily distinguishable.

 

FN3. With regard to lost future earnings, the District Court was permitted to hold that evidence of Conlon’s criminal convictions was inadmissible for the purposes of assessing his future earning capacity because Appellants offered no additional evidence showing what effect the criminal record would likely have on such earnings. See Toombs v. Manning, 835 F.2d 453, 469 (3d Cir.1987) (holding that a trial court did not abuse its discretion by allowing an injured subway passenger’s criminal record to be used for impeachment purposes but not for assessing lost future earnings because the transit authority offered no other evidence showing the effect the record would have).

 

Cobige involved damages for “loss of companionship” and “enjoyment of life” only, and a decedent who had been absent and in near-constant trouble with the law for almost her entire adult life. Id. Conlon, on the other hand, was only 20 years old when he was convicted, and subsequently he spent 13 months in a minimum security boot camp. Thereafter, he was never again in trouble with the law, he had children and married after his conviction, and remained employed as a mechanic, supporting himself and his family.

 

We hold that the District Court acted well within its discretion under Rule 403 when it excluded evidence of Mr. Conlon’s past criminal convictions.

 

C.

Third, Appellants argue that the District Court erred by not admitting into evidence certain statements found in Mrs. Conlon’s divorce petition. Brief of Appellants 22. This included her statement that her husband was “presently on probation for criminal acts” to explain her admissible statement that he was not “situated to provide proper care” for his children. Id.; App. 65. We will affirm.

*4 Based on the District Court’s June 24, 2011 Order and the briefs on appeal, it is our understanding that the District Court restricted Appellants’ use of Mrs. Conlon’s divorce petition in order to exclude any direct or indirect reference to her husband’s past criminal convictions. See Brief of Appellants 22 (arguing that excluding references to divorce petition statements about Pennsylvania criminal convictions meant Appellants were unable to show why Mrs. Conlon sought restricted visitation privileges and thought her husband was not situated to provide proper care); Brief of Appellee 19 (arguing the District Court properly excluded statements in Mrs. Conlon’s divorce petition because “Mr. Conlon’s distant criminal conduct and probation [are] irrelevant or, alternatively … the prejudicial value of it greatly outweigh[ed] its probative value”).FN4

 

FN4. The District Court’s June 24, 2011 Order stated that (1) Appellants could confront Mrs. Conlon with statements in her divorce petition that she and Conlon had lived separate and apart since January 10 to impeach her anticipated testimony that they had reconciled; (2) Appellants could confront Mrs. Conlon with her statements in the petition that Conlon was not “situated to provide proper care” for their children, and that Conlon should have “restricted visitation privileges”; and (3) Appellants were not permitted to refer to the divorce petition for any other reason. App. 26 (court order); App. 63–68 (Mrs. Conlon’s divorce petition).

 

Our analysis regarding whether the District Court abused its discretion under Rule 403 by excluding evidence of Conlon’s past criminal convictions does not change simply because the evidence was contained in his wife’s divorce petition; nor does our analysis change because Appellants wished to use these statements to explain why she had stated that her husband was not situated to provide proper care to their children. Again, relevant evidence may be excluded “if its probative value is substantially outweighed by a danger of … unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Rule 403, Federal Rules of Evidence.

 

We hold that the District Court acted well within its discretion under Rule 403 to forbid Appellants from cross-examining Plaintiff with statements from her divorce petition that referenced directly or indirectly Conlon’s past criminal convictions.

 

D.

Fourth, Appellants argue that the District Court erred in admitting two photographs—joint exhibits J–2.2 and J–2.4—which were taken of Conlon’s body shortly after the incident. Appellants argue that the District Court abused its discretion under Rule 403 by admitting the photographs because diagrams of his injuries were also used at trial, rendering the photographs “unfairly prejudicial and needlessly cumulative.” Brief of Appellants 25.

 

Relevant evidence may be excluded if its probative value is substantially outweighed by a danger of unfair prejudice or if it is needlessly cumulative. Rule 403, Federal Rules of Evidence. Evidence may be unfairly prejudicial if it “appeals to the jury’s sympathies, arouses its sense of horror, provokes its instinct to punish, or otherwise may cause a jury to base its decision on something other than the established propositions in the case.” United States v. Guerrero, 803 F.2d 783, 785 (3d Cir.1986) (internal quotation marks and citations omitted). We review a district court’s decision to admit evidence for abuse of discretion. Id.

 

The Appellee argues that the photographs were relevant because she had the burden of proving that the incident was the cause of Conlon’s death. According to the trial transcript, the District Court made its ruling after counsel for Plaintiff told the Court, “I don’t want the jury to go, [‘]what the heck happened here[?’]” App. 396. According to the District Court, the probative value of the photographs was not substantially outweighed by the risk of unfair prejudice because, although at least one of the photographs “revealed a good deal of blood,” it “did not unfairly inflame the jury’s passion or invoke its emotions.” App. 35. Moreover, Appellee argues that one such photograph helped to impeach the testimony of Hart, Appellants’ witness, who stated that Conlon was not bloody immediately following the incident. Brief of Appellee 20; App. 373. For these reasons, we hold that it was within the District Court’s discretion to admit the photographs into evidence.

 

E.

*5 Lastly, Appellants argue that the District Court erred by “refusing to remit the jury’s award of wrongful death damages in the amount of $2,223,289 as excessive, and not supported by the evidence presented at trial.” Brief of Appellants 26. At the center of their argument is the amount awarded for “loss of guidance, tutelage, and moral upbringing,” FN5 which Appellants claim had “no basis in fact” and “should not have been presented to the jury.” Id. at 29. We will affirm.

 

FN5. The parties dispute how much the jury actually awarded for “loss of guidance, tutelage, and moral upbringing” under the Wrongful Death Act. See Brief of Appellants 29 (citing $1,781,291.00, the figure that appears in the District Court’s September 19 Memorandum); Brief of Appellee 23 (“With all due respect to the [District Court,] …. [i]n reality there is no way to know the specific amount of the award that the jury made for [loss of guidance, tutelage, and moral upbringing].”). For the purposes of our analysis, we will accept the figure presented by the District Court and adopted by Appellants: $1,781,291.00.

 

“A district court’s decision regarding a request for a remittitur is reversed only for abuse of discretion, and a case is remanded for a new trial only if the verdict is so grossly excessive as to shock the judicial conscience.”   William A. Graham Co. v. Haughey, 646 F.3d 138, 142 (3d Cir.2011) (internal quotation marks and citations omitted).

 

Appellants’ argument fails for two reasons. First, although Appellants did generally raise the issue of remittitur in their post-trial motions in the District Court, the specific remittitur arguments set forth in this appeal were not preserved and may now be considered waived. Notably, Appellants’ post-trial motions did not mention anything specific about the wrongful death award, the amount of damages assigned for “loss of guidance, tutelage, and moral upbringing,” or the Court’s instruction to the jury regarding the damages at issue, which stated:

 

The monetary value of the guidance, tutelage and moral upbringing [Conlon] would have provided his children, that figure is not contained in the expert’s analysis. So, collectively you will have to decide what you think, … what value that would have had to his two young sons over their lifetime.

 

App. 585–586. Indeed, the District Court significantly noted in its post-trial memorandum that Appellants “ha[d] not explained why they [thought] the jury’s total award of $3,493,569 was excessive.” App. 36. Instead, Appellants stated only that “based on the evidence, record, and jury instructions provided, the jury improperly calculated economic damages.” Defendants’ July 27, 2011 Motion at 11.

 

Second, even if the issue was not waived, Appellants still may not prevail. Appellants argue that “[d]amages recoverable under the Pennsylvania Wrongful Death Act are limited to the pecuniary loss [a] family has sustained, … and no recovery is permitted for such intangible injuries as loss of affection and companionship, loss of solace, anguish or mental suffering.” Brief of Appellants 27. Appellants fail to acknowledge, however, that the Act allows recovery for “the loss of companionship, comfort, society and guidance of a parent,” Steiner by Steiner v. Bell Telephone Co., 517 A.2d 1348, 1350 (Pa.Super.1986), also known as the “loss of services in guidance, tutelage, and moral upbringing,” see Buchecker v. Reading Co., 412 A.2d 147, 158 (Pa.Super.1979).

 

At trial, Mrs. Conlon testified, among other things, that her husband engaged in “everyday family things” such as trips to Myrtle Beach, riding bikes, four-wheeling and visiting parks. App. 435. She testified also that Conlon provided gifts to his children, App. 441–442, and caught lightning bugs with his older son, App. 442–443. She also recalled for the jury a story about a wooden toy car that Conlon painted for his son.

 

*6 Based on the record before us, we hold that it was within the District Court’s discretion to deny Appellants’ motion for remittitur. Furthermore, the $2,223,289.00 awarded to Conlon’s family by the jury under the Pennsylvania Wrongful Death Act does not shock our conscience. We will affirm.

 

We have considered all of the arguments advanced by the parties and conclude that no further discussion is necessary. The judgment of the District Court will be AFFIRMED.

Superior Court of New Jersey,

Appellate Division.

Richard TAPPEL, an incompetent by his Guardian ad litem, Janice Tappel and Janice Tappel, individually, Plaintiffs–Appellants,

v.

Renso F. ARANGO, Luis Gaviria, LG Trucking, Defendants,

and

Tilcon New York, Inc., Defendant–Respondent.

Edwin C. Johnson, Jr., Independent Executor of the Estate of Edwin C. Johnson, Deceased, Plaintiff–Appellant,

v.

Renso F. Arango, Luis Gaviria, LG Trucking, Defendants,

and

Tilcon New York, Inc., Defendant–Respondent.

 

Argued Oct. 2, 2012.

Decided Dec. 5, 2012.

 

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L–5012–08.

Harris Scott Feldman argued the cause for appellants Richard Tappel and Janice Tappel (Blume, Goldfaden, Berkowitz, Donnelly, Fried & Forte, PC, attorneys; Dennis M. Donnelly, on the joint brief).

 

Robert B. Linder argued the cause for appellant Edwin C. Johnson, Jr. (Mr. Linder, on the joint brief).

 

John A. Fearns argued the cause for respondent (Lamb, Kretzer, Reinman & Roselle, attorneys; Mr. Fearns, on the brief).

 

Before Judges REISNER, YANNOTTI and HOFFMAN.

 

PER CURIAM.

*1 Plaintiffs appeal from the December 9, 2011 Law Division order granting the summary judgment motion filed by defendant Tilcon New York (Tilcon), and the resulting dismissal of their claims against Tilcon. They also appeal from the January 20, 2011 order denying their motion for reconsideration. After careful review, we conclude the record before the trial court presented a genuine issue of material fact regarding the issue of agency. Accordingly, we reverse.

 

I.

In the early morning hours of August 29, 2006 in Union Township, defendant Renso Arango (Arango) crashed the dump truck he was driving into the back of the vehicle driven by plaintiff Richard Tappel (Tappel) causing serious injuries to Tappel and fatal injures to his passenger, Edwin Johnson.FN1 At the time of the accident, Arango was employed by a trucking company owned by defendant Luis Gaviria (also the owner of the truck involved in the accident) doing business as LG Trucking. On the day of the accident, Arango was driving from the LG Trucking parking lot to a site in Mount Hope owned and operated by Tilcon in order to pick up and then deliver a load of construction materials.

 

FN1. Richard Tappel is incapacitated and is represented by his wife Janice Tappel, as guardian ad litem. Plaintiff Edwin C. Johnson, Jr. is the executor of the estate of Edwin C. Johnson.

 

Tilcon produces construction materials and provides road construction services in New York and New Jersey. It operates quarries, asphalt plants and material recycling facilities at various sites; its construction services include asphalt paving, road construction, and related work. At the Mount Hope location, Tilcon conducts asphalt, aggregate crushed stone, and recycling operations. Tilcon supplies material to its construction crews as well as outside contractors involved in commercial and public works projects.

 

Tilcon does not utilize its own trucks to deliver construction material; instead, it uses independent trucking contractors. In 2006, Tilcon utilized over three hundred such contractors to deliver its material. Tilcon pays the trucking companies, referred to as “vendors,” on a per delivery basis to haul materials either to a Tilcon construction site or to an outside Tilcon customer.FN2 While all of Tilcon’s in-house paving crews are supplied materials by the outside trucking contractors, less than five percent of external sales are delivered using these vendors.FN3

 

FN2. The record indicates that asphalt hauling may be paid by the hour, as opposed to per delivery.

 

FN3. From the record, it appears most outside customers send their own trucks to pick up the construction material.

 

In order to haul material for Tilcon, trucking companies must enter into a vending agreement with Tilcon, which outlines Tilcon’s terms and conditions, mandatory safety compliance information and insurance requirements. Once a trucking company signs this agreement it becomes eligible to haul from Tilcon facilities. On December 5, 2005, Tilcon and LG Trucking entered into such an agreement, titled Trucking Material Supply Agreement. The agreement required LG Trucking to provide the following insurance coverage: Workers Compensation Coverage with a liability limit of $500,000; Commercial General Liability Coverage with a liability limit of $1,000,000 per occurrence and $3,000,000 in the aggregate; and Business Automobile Liability Coverage with a liability limit of $1,000,000. The agreement further provided:

 

*2 This Trucking Material Supply Agreement shall not constitute an exclusive arrangement and Tilcon shall remain free to engage persons to perform hauling work including work of the same type then being performed by this Trucking Material Supplier. Trucking Material Supplier acknowledges that its status under this Agreement, and its relationship to Tilcon in all respects, shall be that of an independent contractor, and not an employee, agent, or subcontractor, and Trucking Material Supplier shall not make any commitment nor incur any charges or expenses in the name of Tilcon.

 

In July 2001, Gaviria started the corporation LG Trucking, which primarily hauled materials for Tilcon.FN4 In August 2006, the corporation operated two trucks, one driven by Gaviria and the other driven by Arango. Arango began working for LG Trucking about one to three months before the accident and continued at LG Trucking for about two and a half years after the accident. Arango currently works for Leo’s Trucking, another trucking contractor that performs hauling services for Tilcon. Before his employment with LG Trucking, Arango worked for multiple other trucking contractors that did work for Tilcon over a period of several years. He initially met Gaviria while both were hauling from Tilcon’s Mount Hope facility.

 

FN4. While LG Trucking’s agreement with Tilcon permitted it to haul for other entities, the record contains no evidence that any such hauling occurred.

 

Each morning, Arango arrived at the Mount Hope Tilcon site between 5 and 6 a.m., where he would report to the Tilcon dispatcher. The dispatcher would direct him to his first delivery, would require that he return after the delivery, and would then direct him to his next delivery. The Tilcon dispatcher also controlled when Arango left work for the day. For safety, Tilcon required Arango to wear safety boots, a helmet and a reflective vest, as well as to stay up to date on Tilcon’s safety procedures.

 

II.

Summary judgment is appropriate where “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law.” R. 4:46–2(c). The determination of whether there is a genuine issue of material fact should be made viewing all relevant evidence and reasonable inferences “in the light most favorable to the non-moving party.” Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). The proper standard of review for summary judgment is de novo. Simonetti v. Selective Ins. Co., 372 N.J. Super 421, 427 (App.Div.2004).

 

Typically, the determination of whether an employer-employee relationship exists is a factual issue for the jury to decide and is rarely determined as a matter of law. Bennett v. T & F Distrib. Co., 117 N.J.Super. 439, 441 (App.Div.1971). However, if there are no disputed facts or inferences that may be drawn from undisputed facts regarding the employment relationship, a judge may properly grant summary judgment to the moving party. Marion v. Public Service Electric & Gas Co., 72 N.J.Super. 146, 157–58 (App.Div.1962). A trial judge should only make an agency determination where the facts and inferences are completely one-sided, and a rational jury could not possibly come to an alternate conclusion. Mangual v. Berezinsky, 428 N.J.Super. 299, 308 (App.Div.2012).

 

*3 “Although as a general rule of tort law, liability must be based on personal fault, the doctrine of respondeat superior recognizes a vicarious liability principle pursuant to which a master will be held liable in certain cases for the wrongful acts of his servants or employees.” Carter v. Reynolds, 175 N.J. 402, 408 (2003) (emphasis omitted). “The employer, having ‘set the whole thing in motion, should be held responsible for what has happened.’ “ Galvao v. G.R. Robert Constr. Co., 179 N.J. 462, 467 (2004) (quoting W. Page Keeton, et al., Prosser and Keeton on Torts § 69, at 500 (5th ed.1984)).

 

“Under respondeat superior, an employer can be found liable for the negligence of an employee causing injuries to third parties, if, at the time of the occurrence, the employee was acting within the scope of his or her employment.” Carter, supra, 175 N.J. at 408–09 (emphasis omitted) (citing Lehmann v. Toys ‘R’ Us, Inc., 132 N.J. 587, 619 (1993)). “To establish a master’s liability for the acts of his servant, a plaintiff must prove (1) that a master-servant relationship existed and (2) that the tortious act of the servant occurred within the scope of that employment.” Id. at 409. The focus of whether a master-servant relationship exists, more recently referred to as the employer-employee relationship, turns on the nature of the relationship between both parties. Ibid.

 

“The relationship of master and servant is not capable of an exact definition … [and] must be determined in the light of the totality of the facts surrounding the relationship.” Gilborges v. Wallace, 153 N.J. Super 121, 132 (App.Div.1977) (citing Andryishyn v. Ballinger, 61 N.J.Super. 386, 391 (App.Div.1960)). “[O]rdinarily where a person engages a contractor, who conducts an independent business by means of his own employees … he is not liable for the negligent acts of the contractor in the performance of the contract.” Mavrikidis v. Petullo, 153 N.J. 117, 131 (1998) (quoting Majestic Realty Associates, Inc. v. Toti Contracting Co., 30 N .J. 425, 430–31 (1959) (no agent relationship where contractor supervises to ensure work is completed, but does not supervise the manner in which work is completed)).

 

In determining whether agency exists, New Jersey applies the standard set forth in section 220 of the Restatement (Second) of Agency. Carter, supra, 175 N.J. at 409. Section 220 provides:

 

(1) A servant is a person employed to perform services in the affairs of another and who with respect to the physical conduct in the performance of the services is subject to the other’s control or right to control.

 

(2) In determining whether one acting for another is a servant or an independent contractor, the following matters of facts, among others, are considered:

 

(a) the extent of control which, by the agreement, the master may exercise over the details of the work;

 

*4 (b) whether or not the one employed is engaged in a distinct occupation or business;

 

(c) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;

 

(d) the skill required in the particular occupation;

 

(e) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work;

 

(f) the length of time for which the person is employed;

 

(g) the method of payment, whether by the time or by the job;

 

(h) whether or not the work is a part of the regular business of the employer;

 

(i) whether or not the parties believe they are creating the relation of master and servant; and

 

(j) whether the principal is or is not in business.

 

[Restatement (Second) of Agency § 220 (1958).]

 

Furthermore, New Jersey has provided an additional “catch-all” factor, stating that courts should consider “such other factors as may be reasonably considered in determining whether the entity for which the services are being performed controls, or has the right to control, the entity performing the services.” Model Jury Charges (Civil) 5.10I(A)(11) +(2011); see Carter, supra, 175 N.J. at 410.

 

Although each factor should be considered based on the totality of the circumstances, the primary and oftentimes determinative factor considered by courts is whether the employer exercised control over the individual in question. See Galvao, supra, 179 N.J. at 467. (“The traditional ‘essence’ of vicarious liability based on respondeat superior relies on the concept of employer ‘control’ over an employee.” (emphasis omitted)). Control is determined where the employer has “ ‘the right to direct the manner in which the business shall be done, as well as the result to be accomplished, or in other words, not only what shall be done, but how it shall be done.’ “ Wright v. State, 169 N.J. 422, 436–37 (2001); see also Majestic, supra, 30 N.J. at 431 (“The supervisory interest relates to the result to be accomplished, not to the means of accomplishing it.”).

 

In New Jersey, control can be established where the employer has either “broad control” or “on-spot control.” Galvao, supra, 179 N.J. at 472. “Broad control” exists where the employer has such a broad influence over the entire project that the court may infer the employer’s right to control the employee. Ibid. Some factors to consider when determining “broad control” are the method of payment, which party furnishes equipment, and whether the employer has right of termination. Ibid. On the other hand, “on-spot control” refers to the employer’s actual control over the employee’s day to day work, such as directing the individual’s activities while working, providing a supervisory role or having responsibility for an employee’s safety. Ibid.

 

*5 Because this determination often involves the complex application of numerous factors, there is no “consistent definition of what is meant by the notion of ‘control.’ “ Id. at 469 (citing Devone v. Newark Tidewater Terminal Inc., 14 N.J.Super. 401, 406–407 (App.Div.1951) (Schettino, J.S.C., concurring)). As a result, circumstances will often arise where two employers could potentially be subject to vicarious liability, because both have exerted control over the employee. Id. at 474. Therefore, the status of employer is not exclusive and where two employers exert some level of control over an employee, “ ‘commonly both employers have a measure of control and the business of both is being done.’ “ Id. at 469 (quoting 5 Fowler V. Harper et al., The Law of Torts § 26.11, at 68 n. 14 (2d ed.1986)). In such cases, both would be subject to vicarious liability under the doctrine of respondeat superior.

 

III.

According to the trial court, “Tilcon and LG Trucking were engaged in distinct businesses. Tilcon’s regular business was mining and crushing raw materials for sale to third parties. LG Trucking was engaged in the business of hauling and trucking.” The trial court failed to note, however that Tilcon also engages in construction services. It does not appear the court considered this important fact in deciding to grant Tilcon’s summary judgment motion.

 

We are satisfied that the record before the motion judge established genuine issues of material fact as to whether Tilcon had either broad or on-spot control over its trucking contractors. First, Tilcon arguably had broad control over the its construction projects, and it can be reasonably inferred that such control extended to the delivery of materials by contractors such as LG Trucking. Tilcon controlled the worksite where the materials were picked up for delivery and where drivers reported. Most of the time, haulers delivered to Tilcon construction sites, which meant Tilcon controlled the delivery destination sites and remained the owner of the materials transported. In fact, in those situations, Tilcon controlled virtually every aspect of the entire process, from the initial production of materials to the final construction work.

 

Additionally, Tilcon maintained substantial on-spot control over its trucking contractors. Although Tilcon did not supervise the drivers during the actual transportation of construction materials, Tilcon directed which deliveries were to be taken, as well as where and when. It supervised both the loading and unloading of the materials and Tilcon dispatchers told drivers when they could depart each day.

 

We note that the Court in Galvao emphasized that circumstances may arise that justify holding more than one employer liable for the actions of an employee under the respondeat superior test. Galvao, supra, 179 N.J. at 474. Therefore, the fact that LG Trucking has an employer-employee relationship with Arango does not preclude Tilcon from also engaging in such a relationship. Tilcon may also be held liable if, applying the factors listed above, the jury determines that Tilcon exerted the requisite level of control to establish an employer-employee relationship with Arango. Ibid.

 

*6 Disputed inferences regarding the employment relationship should generally be decided by the finder of fact and preclude entry of summary judgment. See Marion, supra, 72 N.J.Super. at 157–58.

 

Like in Mangual, “[w]e do not determine that no rational jury could arrive at the same conclusions from these facts, but only that a rational jury could as readily conclude the opposite.” Mangual, supra, 428 N.J.Super. at 308. Additionally, although the facts in Mangual were substantially undisputed, we found that “the inferences that may be drawn from these facts vary greatly.” Ibid. Accordingly, we concluded that the determination of whether an employer-employee relationship existed between the two parties should properly be made by a jury. Id. at 309.

 

Similarly, the facts of the instant case are substantially undisputed. However, the inferences that can be drawn after applying the numerous factors vary significantly and a rational jury could potentially come to the opposite conclusion than that of the trial judge.

 

As discussed above, the greater the degree of control an entity exercises over a worker, the greater the likelihood that an employer-employee relationship will be found to exist. There is sufficient evidence in the record from which a jury could reasonably infer that Tilcon exercised broad control over Arango and LG Trucking in the delivery of the materials to its construction sites. According to the contracting agreement, Tilcon has very little control. The contract expressly allows both LG Trucking and Tilcon to do business with other similarly situated entities, names LG Trucking as an independent contractor, and provides no set schedule for work. The only requirements under Tilcon’s boilerplate contracting agreement for vendors are that trucking contractors must obtain insurance coverage and that drivers must follow the company’s safety guidelines. Additionally, Tilcon has alleged that trucking contractors were not required to work a set number of hours, that it did not take part in the training or hiring of drivers, that it did not have any direct contact with drivers prior to a delivery, that it did not issue any materials to the drivers, and that it did not supervise or direct drivers as to the means and method of delivery.

 

On the other hand, Arango testified that he arrived at Tilcon between 5 and 6 a.m. as part of a set schedule. Arango’s routine was to arrive at Tilcon each day; he did not contact LG Trucking for instructions prior to arriving at the Tilcon worksite, nor did he contact Tilcon to determine whether deliveries were available. LG Trucking only contacted Arango to give instructions in the morning if an unexpected change to the usual schedule arose. Upon arrival, Arango would report to a Tilcon dispatcher. The dispatcher would assign Arango his first delivery, where it needed to go, and it was understood that Arango would return after the delivery for further instruction. The Tilcon dispatcher also controlled when Arango was finished with work each day. The record does not establish the extent of direction and supervision given by Tilcon to drivers loading and unloading materials, but Tilcon representatives clearly exerted some level of control during this process and Tilcon was responsible for ensuring that drivers met the company’s safety regulations while working at the sites.

 

*7 The record also indicates that LG Trucking was economically dependant on Tilcon, as it did not have any business or customers besides Tilcon, which is suggestive of control. Conversely, LG Trucking was only one of 300 hauling firms utilized by Tilcon. Finally, Tilcon controlled the vast majority of worksites involved in the deliveries, which could potentially support the inference that it had the right to control any individuals working on its projects, including outsourced drivers from trucking contractors. See Galvao, supra, 179 N.J. at 472.

 

It is noteworthy that the issue of control represents the most determinative factor in this test. Id. at 467. Thus, the disputed inferences that can be drawn here are of particular consequence when determining whether a rational jury could come to an opposite conclusion than that of the trial judge.

 

If an employee’s occupation is distinct from that of the employer, the result is that the employee is more likely to be considered an independent contractor. The evidence is not so one-sided as to permit the trial court to determine as a matter of law that LG Trucking was an independent contractor. Tilcon contends that trucking is a distinct occupation from its usual course of business, which is primarily mining, not truck driving. Tilcon does not own any trucks equipped to transport large loads of materials, it does not directly employ the drivers, and it does not keep employment files for drivers. Tilcon analogizes its trucking contractors to any other outsourced delivery service hired to transport materials.

 

On the other hand, plaintiffs argue that the trucking companies fulfill an essential part of Tilcon’s business activity by transporting the construction materials that Tilcon has produced to the worksites where Tilcon uses these materials in its construction work. Tilcon engages in the business of manufacturing raw materials and then using these materials to complete construction projects. As an integral part of this business, Tilcon must transport the materials it produces to its construction worksites. According to plaintiffs, the trucking contractors perform a function that is part of Tilcon’s everyday business activity and therefore should not be considered distinct.

 

Due to the genuine issues of material fact presented in the record, the determination of whether an employer-employee relationship existed between Tilcon and Arango should have been decided by a jury. Thus, the trial court inappropriately entered summary judgment.

 

Reversed and remanded.