DEBORAH DERRICOTT v. OCEAN TERRACE LUXURY CONDOMINIUMS (L-1306-19, ATLANTIC COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: February 28, 2022
• Docket: A-0833-20
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0833-20

DEBORAH DERRICOTT,

Plaintiff-Appellant,

v.

OCEAN TERRACE LUXURY CONDOMINIUMS, MAX GURWICZ & SON ENTERPRISES, OCEAN TERRACE CONDOMINIUM ASSOCIATION, INC., and MAX GURWICZ & SONS SALES, INC.,

Defendants-Respondents,

GUARDPRO SECURITY, INC.,

Third-Party Defendant- Respondent. ______________________________

Argued December 15, 2021 – Decided February 28, 2022

Before Judges Gilson and Gummer. On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-1306-19.

David T. Wright argued the cause for appellant (The Wright Law Firm, attorneys; David T. Wright, on the brief).

Robyn F. McGrath argued the cause for respondent Ocean Terrace Luxury Condominiums and Ocean Terrace Condominium Association, Inc. (Sweeney & Sheehan, PC, attorneys; Robyn F. McGrath, on the brief).

PER CURIAM

Contending a genuine issue of material fact existed as to whether she was

working as a security guard when she was assaulted on the condominium

defendants' property, plaintiff Deborah Derricott appeals an order granting the

condominium defendants' summary-judgment motion. 1 Agreeing with Judge

James P. Savio that no genuine issue existed, we affirm.

1 Plaintiff referred to "Ocean Terrace Association, Inc." as "Ocean Terrace Condominium Associates, Inc." in the caption of the complaint. We use "Ocean Terrace Condominium Association, Inc." in the caption because defendant used that name in its court submissions. We refer to Ocean Terrace Luxury Condominiums and Ocean Terrace Condominium Association, Inc. collectively as the "condominium defendants." A-0833-20 2 I.

We glean these facts from the summary-judgment record, viewing them

in the light most favorable to plaintiff, the party opposing summary judgment.

See Richter v. Oakland Bd. of Educ., 246 N.J. 507, 515 (2021) (citing Brill v.

Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)).

For purposes of the summary-judgment motion, the parties did not dispute

the circumstances of plaintiff's injury: while lawfully present in the

condominiums' garage, plaintiff was assaulted by someone trying to steal a

bicycle. The parties disputed whether she had been employed as a security guard

and, thus, had been injured while acting in the scope of her employment.

The condominium defendants did not have any security-related

employees. Instead, they retained GuardPro Security, Inc. (GuardPro) to

provide security guards and maintain security for the residents of the building.

GuardPro had been the security company for the condominium defendants for

several years before plaintiff's assault. The condominium defendants' vice

president described the typical services provided by GuardPro as including a

"concierge service for the lobby and periodically just checking exit doors

leading from the building and handling any emergencies that tenants may have

during the course of the evening." He testified "guards" would leave the lobby

A-0833-20 3 desk when "doing a round." Although GuardPro's president testified guards

were to remain at the lobby desk, in a memorandum issued about eleven months

before plaintiff's assault, he "remind[ed]" the "[g]uards" stationed at Ocean

Terrace "you are to be at the front desk unless you are on a patrol." He also

testified GuardPro was hired to maintain security.

About three months before the assault, plaintiff was hired by GuardPro.

In her complaint, plaintiff described GuardPro as a "security company" that

"employed" her. The Ocean Terrace condominium complex was the only site

where GuardPro had stationed her. Counsel for the condominium association

asked plaintiff during her deposition to describe her "duties and responsibilities

as a security guard at Ocean Terrace." With no objection to the form of the

question by her counsel, plaintiff responded:

What I understood [my] job obligations to be is [I was] responsible for checking in any persons that came to the front building to see somebody, they had to sign into a book, . . . and let you know where they were going. [I was] to make rounds, . . . like every hour of the parking garage, the pool area. . . . make sure all doors were secured, the outside of the facility. . . . [J]ust your standard security patrol policy and procedures.

According to plaintiff, she was told about doing rounds in the parking garage

and the pool by the dayshift supervisor, GuardPro's president, and Carol

McGuire, who worked in the condominium defendants' management and was

A-0833-20 4 plaintiff's "report-to person." When asked about "doing rounds in the parking

garage and the pool," plaintiff testified:

that's part of doing security. . . . [W]e [are] there to, . . . serve and protect. . . . [I]t's our responsibility to make sure all those tenants are safe so, . . . you have to make your rounds. . . . At that time it was summertime so the pool was open. Security is responsible for making rounds. Just viewing the pool, making sure that they are secured at the end of the night, checking the parking garage.

. . . [P]rior to me getting hired there they advised me they were having a lot of problems with bikes getting stolen, people, . . . breaking into the garage and . . . different things. . . . [B]e on the lookout of following up with maintenance, making sure maintenance puts the ladders that they used during the day away at night because, . . . people were breaking into the garage stealing cars and assaulting people. They had a lot of places to hide. So if you made the observation of a ladder you would document it. So when I made my rounds if I made any observations I would document it, report it to [the dayshift supervisor]. And I would also report it to Carol, Ms. McGuire.

Before she was stationed at Ocean Terrace, plaintiff was advised the

cameras did not work and that inside the garage, tenants had had their bicycles

stolen, their cars stolen, and had been assaulted "by kids or young men getting

into the garage." Counsel for the condominium association asked plaintiff

during her deposition if she "under[stood] it was [her] role as a security officer

A-0833-20 5 to try and prevent these problems from occurring." With no objection to the

form of the question from her counsel, plaintiff responded: "I was advised from

Ocean Terrace management and GuardPro that, Deborah, you have to try to

make sure you stay vigilant, make your presence be known. It's our

responsibility as security to protect the tenants of Ocean Terra ce." She

understood that during her shift she was "to check the floors, . . . the parking

garage, . . . the pool area, the exits." She testified "[t]hey wanted us to patrol

the parking garage, check . . . the stair levels, check the exit doors" and it was

part of her "every day" and "normal routine" to patrol those areas.

On the evening of the assault, plaintiff was at work at Ocean Terrace when

she went to check the garage as part of her "normal rounds." She was "startled"

by two men. One man had cut the lock to the bicycle "storage area" in the

garage. The other "had something in his hand like he was going to attempt to

break . . . a window." One of the men ran by plaintiff and "punched [her] in

[the] face." The other "dropped the chains to the bike and . . . ran."

Plaintiff filed a complaint and an amended complaint, alleging the

property had "a dangerous and hazardous condition," specifically "inadequate

security devices, measures, and protocols." Plaintiff faulted the condominium

defendants for doing "nothing to increase security devices, measures, or

A-0833-20 6 protocols" and for failing "to adequately staff security guards," even though they

were aware of the "break-ins" and that cameras were not working properly.

The condominium defendants' third-party complaint against GuardPro

was dismissed with prejudice pursuant to a summary-judgment ruling.

Plaintiff's counsel conceded during oral argument on appeal that plaintiff had

applied for and received workers-compensation benefits based on the injuries

she had sustained in the assault. See Millison v. E.I. du Pont de Nemours & Co.,

101 N.J. 161, 174 (1985) (noting employees' entitlement to workers-

compensation benefits for injuries suffered "by accident arising out of and in the

course of employment").

Plaintiff served a report from Russell Kolins of the Kolins Security Group,

which Kolins described as "National Security Experts [and] Consultants."

According to Kolins, plaintiff worked as "a guard" at the condominiums and her

duties were "to control access to the lobby, signing guests in and out, and making

hourly patrols of the facility." Kolins described the assault as happening during

her "shift as a guard" at the condominiums and after she had "left the lobby to

start her patrol in the garage."

The condominium defendants moved for summary judgment. Judge Savio

granted that motion, giving his reasons on the record following oral argument.

A-0833-20 7 He found "based upon the plaintiff's testimony, . . . the plaintiff believed that

what she was doing at the time that she was injured was within the scope of her

employment . . . at GuardPro to provide security services for the Ocean Terrace."

In making that finding, the judge specifically referenced plaintiff's testimony

that "she was providing security services" and "thought it was within the scope

of her employment to be doing what she was doing at the time that she was

injured." He also found the condominium defendants had retained GuardPro to

provide security services, "although certain testimony . . . from the defendants"

could "be read . . . as suggesting that plaintiff's duties did not include patrolling

the area where the bicycles were located." Judge Savio concluded there was "no

genuine factual dispute about whether or not [plaintiff] was performing services

within the scope of the contract between GuardPro and Ocean Terrace." 2 He

granted summary judgment, finding "there [wa]s no duty on the part of a

landowner to . . . an employee of an independent contractor who [wa]s

performing services within the scope of h[er] contract."

On appeal, plaintiff argues the judge erred in granting the condominium

defendants summary judgment because material facts concerning whether she

was a security guard precluded summary judgment and because the

2 The parties did not provide us with a copy of the contract. A-0833-20 8 condominium defendants could have been held liable for her injuries given that

she was not a security guard.

II.

We review a grant of summary judgment "de novo and apply the same

standard as the trial court." Rios v. Meda Pharm., Inc., 247 N.J. 1, 13 (2021).

"That standard mandates that summary judgment be granted 'if 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.'" Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of

Pittsburgh, 224 N.J. 189, 199 (2016) (quoting R. 4:46-2(c)). "An issue of

material fact is 'genuine only if, considering the burden of persuasion at trial,

the evidence submitted by the parties on the motion, together with all legitimate

inferences therefrom favoring the non-moving party, would require submission

of the issue to the trier of fact.'" Grande v. St. Clare's Health Sys., 230 N.J. 1,

24 (2017) (quoting Bhagat v. Bhagat, 217 N.J. 22, 38 (2014)). When

determining if a genuine issue of material fact exists, the judge must determine

"whether the evidence presents a sufficient disagreement to require submission

to a jury or whether it is so one-sided that one party must prevail as a matter of

A-0833-20 9 law." Brill, 142 N.J. at 533 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 251-52 (1986)); see also Petro-Lubricant Testing Lab'ys, Inc. v. Adelman,

233 N.J 236, 257 (2018). In our review, we owe "no special deference" to the

trial court's legal analysis. RSI Bank v. Providence Mut. Fire Ins. Co., 234 N.J.

459, 472 (2018). Whether a defendant owes a plaintiff a duty and the scope of

that duty are legal questions. Shields v. Ramslee Motors, 240 N.J. 479, 487-88

(2020).

A landowner generally has "a nondelegable duty to use reasonable care to

protect invitees against known or reasonably discoverable dangers." Rigatti v.

Reddy, 318 N.J. Super. 537, 541 (App. Div. 1999) (quoting Kane v. Hartz

Mountain Indus., Inc., 278 N.J. Super. 129, 140 (App. Div. 1994)). Although

that duty extends to an independent contractor's employee, "[t]he landowner is

under no duty to protect an employee of an independent contractor from the very

hazard created by doing the contract work." Sanna v. Nat'l Sponge Co., 209 N.J.

Super. 60, 67 (App. Div. 1986); see also Olivo v. Owens-Illinois, Inc., 186 N.J.

394, 406-07 (2006) (recognizing "exception to the requirement that premises be

made safe for an independent contractor when the contractor is invited onto the

land to perform a specific task in respect of the hazard itself"). The reason for

that exception to the landowner's general duty to protect invitees is that "the

A-0833-20 10 landowner may assume that the independent contractor and [its] employees are

sufficiently skilled to recognize the dangers associated with their task and adjust

their methods accordingly to ensure their own safety." Accardi v. Enviro-Pak

Sys. Co., 317 N.J. Super. 457, 463 (App. Div. 1999).

Thus, we have held a landowner is not liable when an independent

contractor's employee sustains an injury "as a result of the very work which the

employee was hired to perform." Dawson v. Bunker Hill Plaza Assocs., 289

N.J. Super. 309, 318 (App. Div. 1996). See Rigatti, 318 N.J. Super. at 543

(finding landowner not liable to roofer's employee who was injured when he fell

through the roof because "[t]he potential that a roofer may fall through any part

of an old roof is an inherent risk reasonably foreseeable to the worker"); Cassano

v. Aschoff, 226 N.J. Super. 110, 115 (App. Div. 1988) (landowner not liable

when employee of tree-removal contractor was struck by falling limb); but see

Nielsen v. Wal-Mart Store #2171, 429 N.J. Super. 251, 265 (App. Div. 2013)

(holding exception does not "cover a circumstance . . . where the land occupier

fails to warn of a hazardous condition that the independent contractor is not there

to repair"); Moore v. Schering Plough, Inc., 328 N.J. Super. 300, 306 (App. Div.

2000) (holding exception does not apply to security guard who was injured when

he slipped and fell on ice and snow he was not responsible for removing).

A-0833-20 11 Here, plaintiff does not contest the application of the exception to the

circumstances of this case if she were acting as a security guard. Instead, she

now contends a factual dispute exists as to whether she was acting as a security

guard. She makes that contention even though in her sworn testimony she

consistently and repeatedly identified herself as a security guard and described

her duties as those of a security guard; in her complaint she asserts she was

employed by a "security company"; and her security expert witness found she

had been working as "a guard," had a duty to make "hourly patrols of the

facility," and had been injured during her "shift as a guard" when she was on

"patrol in the garage." She bases that contention on isolated statements taken

out of context. For example, she relies on the condominium defendants' vice

president's reference to GuardPro3 "[p]roviding concierge service for the lobby."

But in the same sentence he testified about GuardPro personnel "periodically

. . . checking exit doors leading from the building and handling any emergencies

that tenants may have . . . ." He also testified "guards" would leave the lobby

desk when "doing a round." She focuses on GuardPro's president's testimony

about GuardPro's administrative responsibilities but ignores his testimony that

3 We assume the reference is to GuardPro. The question asked was "And what service was that?" Plaintiff did not include a copy of the prior page of the transcript, making it difficult to discern the context of the question. A-0833-20 12 GuardPro was hired to maintain security and his memorandum reminding

"guards" stationed at the condominiums to remain at the front desk unless they

were "on a patrol."

The evidence establishes plaintiff was working as a security guard and

was acting in that role in the scope of her employment when she was assaulted.

Her own testimony compellingly confirms it. She clearly understood she was

working as a security guard and that part of her job was to patrol the garage ,

which she knew had been the site of previous thefts and assaults. The findings

of her security expert witness support that conclusion. The isolated comments

on which plaintiff now relies do not "present[] a sufficient disagreement to

require submission to a jury." Brill, 142 N.J. at 533 (quoting Anderson, 477

U.S. at 251-52). Here, the evidence "is so one-sided," ibid. (quoting Anderson,

477 U.S. at 252), that summary judgment was appropriate. With no genuine

issue of material fact concerning her employment as a security guard and that

she was acting in that capacity when she was assaulted, Judge Savio correctly

applied the independent-contractor exception to the general landowner duty

because plaintiff was engaged in "the very work which [she] was hired to

perform." Dawson, 289 N.J. Super. at 318.

Affirmed.

A-0833-20 13