Superior Court of New Jersey,
Appellate Division.
Edgar MARROQUIN, Plaintiff-Appellant,
v.
HALCOR, INC., Defendant,
and
Evans Delivery Company, Inc., Defendant-Respondent.
Argued Jan. 19, 2011.
Decided Feb. 17, 2011.
Before Judges PARRILLO and YANNOTTI.
PER CURIAM.
Plaintiff Edgar Marroquin appeals from entry of a directed verdict in favor of defendant Evans Delivery Company, Inc. (Evans), dismissing his complaint seeking to hold Evans vicariously liable for the negligence of Halcor, Inc. (Halcor) and its employee Jose Carvajal. We affirm.
This matter arises out of a forklift accident that occurred on July 6, 2007, on premises leased to Halcor and where Halcor conducts its business activities, including the warehousing and storage of goods. On July 6, plaintiff, who regularly visited Halcor’s premises to solicit repair work on vehicles at the facility, was present to perform services on a truck. After completing his work, plaintiff voluntarily assisted Carvajal, who was operating a forklift, unload large wooden beams from a container stored in the yard of Halcor’s warehousing facility. During the course of his assistance, one of the beams fell off the forklift and crushed plaintiff’s hand.
The owner of the freight in question, Cecco Trading, Inc. a/k/a Timber Holdings (Cecco), had contracted with Evans to transport the lumber from Port Newark to Halcor’s facility on Wilson Avenue in Newark. Pursuant to that agreement, Evans delivered the lumber in a sealed container on June 29, 2007, several days before the accident. Halcor, in turn, was paid by Cecco to offload and warehouse the lumber at its facility. Evans’s business relationship with Halcor dates back to February 6, 2003, when the two entities executed an Agent Agreement relating to the transportation and delivery of freight.
Plaintiff sued Halcor and Carvajal alleging that Carvajal negligently caused the wooden beam to fall on plaintiff’s hand, and that Halcor breached its duty to conduct its warehousing activities, including the movement of merchandise, in a reasonably safe manner and in conformance with the Occupational Safety and Health Administration Act (OSHA). Fourteen months later, plaintiff filed an amended complaint naming Evans as a defendant and alleging that, by virtue of their Agent Agreement, Evans was vicariously liable for Halcor’s negligence in failing to oversee and maintain Halcor’s premises in a reasonably safe condition and in failing to provide plaintiff a safe workplace under OSHA. Halcor and Carvajal ultimately settled with plaintiff and plaintiff’s lawsuit against Evans proceeded to a jury trial, which focused on the relationship among the various parties.
The proofs at trial established that Evans’s primary business is the international and domestic transportation of freight. These services are provided pursuant to operating authority and licensing privileges issued by the United States Department of Transportation relating specifically to the transportation of freight and operation of vehicles on highways, and are regulated by the Federal Motor Carrier Safety Administration.
The majority of terminals used by Evans, such as the Halcor facility, are operated under a standard agency agreement, which delegates two essential functions to the agent: (1) solicit customers that need freight shipped (shippers); and (2) recruit independent drivers to deliver the freight to the desired location. Accordingly, Evans’s Agent Agreement with Halcor expressly provides that the agent (Halcor) is vested “with authority to represent CARRIER [ (Evans) ] … for the purpose of soliciting, picking up, dispatching and properly documenting all freight that CARRIER may legally and properly transport ….“ Neither the Agreement nor Evans’s licensing privileges addresses the handling, loading, offloading, or storage of freight, only its transportation. By the terms of the Agent Agreement, “[a]ll records or papers of any kind relating to CARRIER’S business and any forms and other materials bearing the name or trademark of CARRIER or any division thereof shall remain the property of CARRIER and shall be surrendered to CARRIER upon demand….” In essence, Halcor serves as Evans’s New Jersey sales and recruitment arm. As part of its trucking business, Halcor also provides transportation services for different customers in accordance with Evans’s licensure and Agent Agreement, for which Halcor pays Evans a certain percentage of sales.
In addition to its business with Evans, Halcor operates a warehouse facility from which it provides warehousing, distribution, and storage services to its approximately twenty customers. Part of the warehousing operation is the unloading and moving of freight about the premises and the storage thereof, for which Halcor is paid directly by its clients and its employees are solely responsible. Evans has no involvement with Halcor’s warehousing operations.
Although the Agent Agreement prohibits Halcor from competing with Evans’s transportation business, it does not prevent Halcor from conducting warehousing operations.
At the conclusion of plaintiff’s case and well into the defense presentation, Evans moved, pursuant to Rule 4:37-2 or Rule 4:40-1, for a directed verdict, which the trial court granted, finding that, as a matter of law, Evans owed no duty to plaintiff. The judge concluded:
The inquiry is whether there is sufficient evidence that’s been presented which if all reasonable inferences in favor of the non-moving party are accorded to that evidence would be sufficient to sustain a burden. I believe that the evidence that has been presented, whether that’s just the plaintiff’s evidence or the defense evidence as well is not sufficient to carry that burden and the motion will be granted.
The existence of a duty is of course a question of law. And … the existence of a duty and when a duty is to be found to exist has been spelled out by the Supreme Court in a number of cases including the Carvahalo (phonetic) case [and] the Kelly against Grinnell (phonetic) case…. There has to be some duty existing on the part of Evans that was breached and that was owed to [plaintiff] and the breach of which constituted a proximate cause of the injury that he clearly suffered at Halcor’s facility.
… I’ve reviewed the contract, the contract is clear on its face, it’s not a question of fact what that contract means. The agency contract between Halcor and Evans is limited to Halcor’s acting as Evans'[s] agent in connection with the trucking business and not in connection with its independent warehousing business. Nothing in that contract would either permit or require Evans to exercise any control over how Halcor ran its warehousing business which is what is involved here. The testimony from Mr. Bates and Mr. Guzman was that Evans’ [s] involvement was to pick up the container at the Maher Terminal in Newark, drop it off at … Halcor’s facility in Newark and there it was to be handled by Halcor as the consignee of [C]ecco. That Evans at that point was not expected to and in fact as it turned out did not have any further contact with that container or its contents, that what Mr. Carva[jal] was doing on the day that [plaintiff] was injured was an activity being conducted by Halcor in conjunction with its separate business of being a warehouse and being the consignee of [C]ecco and not anything having to do with its agency agreement or its agency relationship with Evans under the agency agreement.
In addition, the several bodies of law referred to by [plaintiff’s expert] in his testimony do not impose any legal obligation or legal responsibility on Evans under the facts that are presented here…. [T]he Motor Carrier Safety Act in 49 U.S.C. Chapter 313 deals with the transportation of goods on the highway system and that transportation alone. It certainly does not apply to a situation such as the one presented here where the trucker’s or the carrier’s responsibility had ended when the container was dropped at Halcor’s facility.
Given the testimony that was presented as to what was to be done with that I need not address whether[,] under the facts assumed or believed to be true by [plaintiff’s expert,] … if Evans was to have some continuing connection with this property or that Halcor was just re-shipping it or re-packing it in connection with its agency relationship, whether that would impose liability or an obligation on Evans in connection with the forklift operation because the evidence is that that was not what was happening, that there’s nothing in the Act itself or in any of the regulations in C.F.R. Part 301 promulgated under that statute that imposed any obligation … upon Evans in connection with Halcor’s warehousing operation which resulted in [plaintiff’s] injury.
In addition, there is nothing in OSHA that imposes any requirement that Evans do anything in connection with Halcor’s warehousing operations. The multi [-] employer workplace doctrine that [plaintiff’s expert] testified to does not apply in a situation such as this. It [ap]plies where one employer at a work site causes a condition that poses a danger to the employees of other companies who are also working there under 29 U.S.C. Section 654-A. This is not a situation of that sort. The multi[-]employer work site doctrine under OSHA did not apply-it did not impose any obligation on Evans in connection with this shipment once the container was dropped at Halcor’s facility. There is no other body of law that imposes any such obligation.
I find as a matter of law that … given the testimony that was presented during the course of the plaintiff’s case alone there was no legal duty that was breached here-well, there was no legal duty period whether there was a breach or not. Even if it’s supplemented with Ms. Humphrey’s testimony which was certainly consistent with Mr. Bates and Mr. Guzman as to this transaction and the relationship between Evans and Halcor there is no duty
… that existed on the part of Evans to prevent the situation that led to [plaintiff’s] unfortunate injury. The motion is granted.
On appeal, plaintiff raises the following issues:
I. THE CASE SHOULD HAVE BEEN SUBMITTED TO THE JURY BECAUSE DEFENDANT EVANS’ [S] CONDUCT FALLS WITHIN ALL THREE EXCEPTIONS TO THE GENERAL RULE OF NON-LIABILITY OF A PRI[N]CIPAL OF THE ACTS OF AN INDEPENDENT CONTRACTOR.
II. THE CASE SHOULD HAVE BEEN SUBMITTED TO THE JURY BECAUSE THE CONTRACT BETWEEN EVANS AND HALCOR PRESENTED JURY QUESTIONS INCLUDING THE DETERMINATION OF CREDIBILITY ISSUES BY THE JURY AND EVALUATION OF EXPERT TESTIMONY BY THE JURY.
III. AS A LICENSED INTERSTATE MOTOR CARRIER EVANS HAD A DUTY TO PLAINTIFF UNDER FEDERAL LAW TO PROVIDE HIM WITH A SAFE WORKPLACE.
We have considered each of these issues in light of the record, the applicable law, and the arguments of counsel, and we are satisfied that none of them is of sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). We therefore affirm substantially for the reasons stated by the Law Division judge in his oral opinion of January 14, 2010. We add, however, the following comments.
A motion for a directed verdict, whether brought under Rule 4:40-1 or Rule 4:37-2(b), is governed by the same standard: whether “the evidence, together with the legitimate inferences therefrom, could sustain a judgment in … favor of the party opposing the motion.” Dolson v. Anastasia, 55 N.J. 2, 5 (1969) (internal citations omitted); see also Zive v. Stanley Roberts, Inc., 182 N.J. 436, 441-42 (2005). Thus, in determining whether reasonable minds could differ in this case, we view plaintiff’s proofs as uncontradicted and accord them the benefit of all legitimate inferences. Verdicchio v. Ricca, 179 N.J. 1, 30 (2004). Moreover, in determining whether a judgment in favor of plaintiff could have been sustained on these proofs, we consider that actionable negligence involves a breach of duty and resulting damage, Stanley Co. of America v. Hercules Powder Co., 16 N.J. 295, 315 (1954), and that the question of whether a duty exists is one of law to be decided by the court. Jerkins v. Anderson, 191 N.J. 285, 294 (2007).
Here, plaintiff seeks to hold Evans vicariously liable for Halcor’s alleged negligence based on their contractual business relationship, which, he argues, vests Evans with control over Halcor’s warehouse operations and thus renders Evans responsible as Halcor’s principal. Recognizing, however, that the scope of the Agent Agreement related solely to the solicitation and transportation of freight, plaintiff attempts to characterize Halcor’s unloading and storage activities as part of the “transportation” process for which Halcor acts on Evans’s behalf. Referring to the so-called common industry practice of “breaking bulk”-breaking the larger shipment down into smaller increments for later distribution to various destinations-plaintiff contends that the jury could have inferred from the evidence that Halcor broke down Cecco’s shipment so that Evans could then transport the smaller bundles of timber to other final destinations. Because plaintiff was injured in this process, Evans may be vicariously liable for the negligence of Halcor, who was acting on Evans’s behalf.
We reject this argument as there was insufficient evidence to present the issue of a breach of duty to the jury. Significantly, plaintiff was injured as a result of conduct outside the scope of the Agent Agreement between Evans and Halcor, while assisting a Halcor employee unload freight, a service for which Cecco directly paid Halcor. No provision in the Agent Agreement vests Evans with any control, supervision, or direction over the manner and means of unloading or storing Cecco’s freight within Halcor’s warehouse facility, services for which Cecco specifically and separately engaged Halcor. In fact, no view of the evidence-expert or otherwise-would allow for a jury finding that, in the performance of the warehousing activities resulting in plaintiff’s injury, Halcor was acting as Evans’s agent or Evans as Halcor’s principal, so that Evans owed a duty of reasonable care to plaintiff or was vicariously liable for Halcor’s negligence. And even assuming Evans retained some supervisory interest in the work performed, Halcor’s so-called “breaking bulk” activity was, at best, peripheral to the Agent Agreement, Puckrein v. ATI Transport, Inc., 186 N.J. 563, 578 (2006), and no evidence suggests Halcor ceded any of its control over the means by which that work was to be completed. See Mavrikidis v. Petullo, 153 N.J. 117, 135 (1998); Majestic Realty Assocs. v. Toti Contracting Co., 30 N.J. 425, 431 (1959).
Lacking any evidence from which a jury could reasonably find Evans vicariously liable for the allegedly negligent acts of Halcor, the court properly directed a verdict in Evans’s favor.
Affirmed.
