NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-5022-16T1
RICARDO SUAREZ,
Plaintiff-Appellant,
v.
HATCO CHEMICAL CORP.,
Defendant. _______________________________
CHEMTURA CORPORATION,1
Defendant/Third-Party Plaintiff-Respondent,
SECURITAS SECURITY SERVICES,
Third-Party Defendant. _______________________________
Submitted May 29, 2018 - Decided July 23, 2018
Before Judges Accurso and Vernoia.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-7580-15.
1 Improperly plead as Hatco Chemical Corp. Larry S. Geller, attorney for appellant.
Becker LLC, attorneys for respondent (Joseph F. Falgiani, on the brief).
PER CURIAM
Plaintiff Ricardo Suarez appeals from a summary judgment
dismissing his premises liability complaint against defendant
Chemtura Corporation. We affirm.
Viewed in the light most favorable to plaintiff,2 the facts
are as follows. Plaintiff, twenty-years-old at the time of the
accident, was employed as a security guard by Securitas Security
Services,3 assigned to defendant's chemical plant in Fords, New
Jersey. He worked the midnight to 8:00 a.m. shift. When he
arrived for work on February 3, 2015, defendant's maintenance
2 Plaintiff did not comply with the requirement of R. 4:46-2(b) to file a responding statement of material facts either admitting or disputing each of the facts in the movant's statement. Instead, he filed his own statement of material facts, not referencing defendant's statement. Plaintiff's obligation to respond in accordance with the Rule was not optional. See Polzo v. Cty. of Essex, 196 N.J. 569, 586 (2008). He is thereby deemed to have admitted those facts in defendant's statement having sufficient support in the record. See R. 4:46- 2(b). As the essential facts are either drawn from the transcript of plaintiff's deposition or the contract between defendant and plaintiff's employer, Securitas Security Services, both of which are included in the appendix, his non-compliance has not impeded our review. See Kenney v. Meadowview Nursing & Convalescent Ctr., 308 N.J. Super. 565, 569 (App. Div. 1998). 3 Securitas did not file a brief and is not a party to this appeal.
2 A-5022-16T1 crew was just finishing plowing and salting the plant's interior
roads and walkways. It had not snowed that day but there was
snow on the ground. Plaintiff had seen the crew plowing and
salting at the end of his shift the day before. As he was
leaving, his supervisor told him if the conditions were bad when
he came in that evening, he did not have to go out.
The plant is situated on seventy-seven acres and consists
of multiple buildings and structures. Plaintiff was responsible
for walking the property, checking to see that doors and gates
were locked and reporting any unsafe conditions, including ice
on the ground.4 Plaintiff testified conditions were fine when he
began his tour, "dark and cold. That's it." His first tour the
morning of the accident was uneventful. He did not notice any
icy conditions. He did not see any ice on his second tour
either. As he was nearing the end of that tour, however, he
slipped on ice near the west lift station, hurting both wrists,
his left shoulder and his neck.
After his accident, plaintiff returned to the guard house
and wrote in the log, "[s]lipped and fell, west lift station,
icy conditions." He testified at deposition that he did not
4 The contract between defendant and Securitas provides that security officers shall "[o]bserv[e] and report suspicious activities, unsafe conditions, and security breaches."
3 A-5022-16T1 recall inspecting the area where he fell but knew he was walking
on the snow toward a paved area. When asked how he knew there
was ice under the snow if he did not inspect the area, plaintiff
replied, "I slipped. . . . [Y]ou can't slip on snow." In his
own statement of material facts, plaintiff asserted the
maintenance crew "[o]bviously . . . did not see the black ice"
on which he fell either "or they would have spread salt on it."
Defendant submitted its snow removal protocol for the Fords
plant in support of its motion. The policy details
responsibilities for plowing and salting interior roadways and
shoveling and salting sidewalks "to insure the plant stays open
and all Hatco employees, suppliers and customer trucks, can
enter and leave site safely."
Following discovery, defendant moved for summary judgment,
contending it owed no duty to plaintiff under the independent
contractor exception of Wolczak v. National Electric Products
Corp., 66 N.J. Super. 64, 75 (App. Div. 1961) (noting "the
unimpaired line of holdings to the effect that the duty to
provide a reasonably safe working place for employees of an
independent contractor does not relate to known hazards which
are part of or incidental to the very work the contractor was
hired to perform"). Alternatively, defendant argued plaintiff
failed to carry his burden to show it had actual or constructive
4 A-5022-16T1 notice of the icy condition where he fell or, assuming such
notice, that it failed to act in a reasonably prudent manner to
remove or reduce the hazard. Plaintiff opposed the motion,
arguing defendant owed him a non-delegable duty of reasonable
care, and that material disputes of fact precluded the entry of
summary judgment.
The trial court entered summary judgment for defendant,
dismissing plaintiff's complaint. Relying on Wolczak, the judge
found defendant had no duty to plaintiff to guard against "a
known hazard incidental to the very work that the gentleman was
hired . . . to warn about." The judge further found defendant
had no constructive notice, opining that "no reasonable[,]
rational Essex County jury could find that in fact that
defendant breached a duty here."
Plaintiff appeals, arguing the trial court erred in
concluding defendant did not owe him a duty and that material
disputed facts precluded summary judgment.
We review summary judgment using the same standard that
governs the trial court. Murray v. Plainfield Rescue Squad, 210
N.J. 581, 584 (2012). Thus, we consider "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 law." Liberty Surplus Ins. Corp., Inc. v. Nowell
5 A-5022-16T1 Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (quoting Brill v.
Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995)). In
considering application of the law to the facts adduced on the
motion, our review is de novo without deference to any
interpretive conclusions we believe mistaken. Nicholas v.
Mynster, 213 N.J. 463, 478 (2013); Manalapan Realty, L.P. v.
Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). Applying
those principles here, we agree summary judgment was
appropriate, although not for precisely the same reasons as the
trial court. See State v. Maples, 346 N.J. Super. 408, 417
(App. Div.
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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-5022-16T1
RICARDO SUAREZ,
Plaintiff-Appellant,
v.
HATCO CHEMICAL CORP.,
Defendant. _______________________________
CHEMTURA CORPORATION,1
Defendant/Third-Party Plaintiff-Respondent,
SECURITAS SECURITY SERVICES,
Third-Party Defendant. _______________________________
Submitted May 29, 2018 - Decided July 23, 2018
Before Judges Accurso and Vernoia.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-7580-15.
1 Improperly plead as Hatco Chemical Corp. Larry S. Geller, attorney for appellant.
Becker LLC, attorneys for respondent (Joseph F. Falgiani, on the brief).
PER CURIAM
Plaintiff Ricardo Suarez appeals from a summary judgment
dismissing his premises liability complaint against defendant
Chemtura Corporation. We affirm.
Viewed in the light most favorable to plaintiff,2 the facts
are as follows. Plaintiff, twenty-years-old at the time of the
accident, was employed as a security guard by Securitas Security
Services,3 assigned to defendant's chemical plant in Fords, New
Jersey. He worked the midnight to 8:00 a.m. shift. When he
arrived for work on February 3, 2015, defendant's maintenance
2 Plaintiff did not comply with the requirement of R. 4:46-2(b) to file a responding statement of material facts either admitting or disputing each of the facts in the movant's statement. Instead, he filed his own statement of material facts, not referencing defendant's statement. Plaintiff's obligation to respond in accordance with the Rule was not optional. See Polzo v. Cty. of Essex, 196 N.J. 569, 586 (2008). He is thereby deemed to have admitted those facts in defendant's statement having sufficient support in the record. See R. 4:46- 2(b). As the essential facts are either drawn from the transcript of plaintiff's deposition or the contract between defendant and plaintiff's employer, Securitas Security Services, both of which are included in the appendix, his non-compliance has not impeded our review. See Kenney v. Meadowview Nursing & Convalescent Ctr., 308 N.J. Super. 565, 569 (App. Div. 1998). 3 Securitas did not file a brief and is not a party to this appeal.
2 A-5022-16T1 crew was just finishing plowing and salting the plant's interior
roads and walkways. It had not snowed that day but there was
snow on the ground. Plaintiff had seen the crew plowing and
salting at the end of his shift the day before. As he was
leaving, his supervisor told him if the conditions were bad when
he came in that evening, he did not have to go out.
The plant is situated on seventy-seven acres and consists
of multiple buildings and structures. Plaintiff was responsible
for walking the property, checking to see that doors and gates
were locked and reporting any unsafe conditions, including ice
on the ground.4 Plaintiff testified conditions were fine when he
began his tour, "dark and cold. That's it." His first tour the
morning of the accident was uneventful. He did not notice any
icy conditions. He did not see any ice on his second tour
either. As he was nearing the end of that tour, however, he
slipped on ice near the west lift station, hurting both wrists,
his left shoulder and his neck.
After his accident, plaintiff returned to the guard house
and wrote in the log, "[s]lipped and fell, west lift station,
icy conditions." He testified at deposition that he did not
4 The contract between defendant and Securitas provides that security officers shall "[o]bserv[e] and report suspicious activities, unsafe conditions, and security breaches."
3 A-5022-16T1 recall inspecting the area where he fell but knew he was walking
on the snow toward a paved area. When asked how he knew there
was ice under the snow if he did not inspect the area, plaintiff
replied, "I slipped. . . . [Y]ou can't slip on snow." In his
own statement of material facts, plaintiff asserted the
maintenance crew "[o]bviously . . . did not see the black ice"
on which he fell either "or they would have spread salt on it."
Defendant submitted its snow removal protocol for the Fords
plant in support of its motion. The policy details
responsibilities for plowing and salting interior roadways and
shoveling and salting sidewalks "to insure the plant stays open
and all Hatco employees, suppliers and customer trucks, can
enter and leave site safely."
Following discovery, defendant moved for summary judgment,
contending it owed no duty to plaintiff under the independent
contractor exception of Wolczak v. National Electric Products
Corp., 66 N.J. Super. 64, 75 (App. Div. 1961) (noting "the
unimpaired line of holdings to the effect that the duty to
provide a reasonably safe working place for employees of an
independent contractor does not relate to known hazards which
are part of or incidental to the very work the contractor was
hired to perform"). Alternatively, defendant argued plaintiff
failed to carry his burden to show it had actual or constructive
4 A-5022-16T1 notice of the icy condition where he fell or, assuming such
notice, that it failed to act in a reasonably prudent manner to
remove or reduce the hazard. Plaintiff opposed the motion,
arguing defendant owed him a non-delegable duty of reasonable
care, and that material disputes of fact precluded the entry of
summary judgment.
The trial court entered summary judgment for defendant,
dismissing plaintiff's complaint. Relying on Wolczak, the judge
found defendant had no duty to plaintiff to guard against "a
known hazard incidental to the very work that the gentleman was
hired . . . to warn about." The judge further found defendant
had no constructive notice, opining that "no reasonable[,]
rational Essex County jury could find that in fact that
defendant breached a duty here."
Plaintiff appeals, arguing the trial court erred in
concluding defendant did not owe him a duty and that material
disputed facts precluded summary judgment.
We review summary judgment using the same standard that
governs the trial court. Murray v. Plainfield Rescue Squad, 210
N.J. 581, 584 (2012). Thus, we consider "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 law." Liberty Surplus Ins. Corp., Inc. v. Nowell
5 A-5022-16T1 Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (quoting Brill v.
Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995)). In
considering application of the law to the facts adduced on the
motion, our review is de novo without deference to any
interpretive conclusions we believe mistaken. Nicholas v.
Mynster, 213 N.J. 463, 478 (2013); Manalapan Realty, L.P. v.
Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). Applying
those principles here, we agree summary judgment was
appropriate, although not for precisely the same reasons as the
trial court. See State v. Maples, 346 N.J. Super. 408, 417
(App. Div. 2002) (an appeal is taken from the court's order
rather than reasons for the order).
We acknowledge the long line of cases, represented by
Wolczak, expressing "[t]he general principle . . . that the
landowner is under no duty to protect an employee of an
independent contractor from the very hazard created by the doing
of the contract work," provided the landowner has not retained
"control over the means and methods of the execution of the
project." Muhammad v. N.J. Transit, 176 N.J. 185, 198 (2003)
(quoting Gibilterra v. Rosemawr Homes, 19 N.J. 166, 170 (1955)).5
But in our view, the facts of this case are much closer to those
5 No one suggests defendant retained any control over how plaintiff performed his duties.
6 A-5022-16T1 in Moore v. Schering Plough, Inc., 328 N.J. Super. 300, 305
(App. Div. 2000), where we addressed directly "the duty owed to
a security guard with respect to ice and snow accumulating on
walkways traveled on his usual rounds," than those on which
defendant relies.
The plaintiff in Moore was a security guard employed by
Wachenhut, which had a contract with Schering Plough to provide
around-the-clock security services at Schering's sprawling Essex
County facility. Id. at 303. Moore was injured when he slipped
on snow walking between two buildings on a day the complex was
closed between Christmas and the New Year. Ibid. Writing for
the panel, Judge King noted the cases finding exceptions to the
duty of reasonable care owed by a landowner to the employees of
an independent contractor "invariably involve the 'very work the
contractor was hired to perform,' such as operational hazards
inherent in repairing a defective roof." Id. at 306 (quoting
Rigatti v. Reddy, 318 N.J. Super. 537, 541-42 (App. Div. 1999)).
Noting that none of the parties alleged Moore had anything
to do with snow removal on the walkways, although "[h]is
superiors may have had a duty to notify Schering's maintenance
foreman when the snow started," Judge King held Schering had a
duty of reasonable care to Moore for the safety of the security
guard with respect to snow and ice accumulation while on his
7 A-5022-16T1 rounds. Id. at 307. Whether Schering had discharged its duty
under all the circumstances was a question for the jury. Ibid.
This case is not on all fours with Moore, because plaintiff
testified at deposition it was his responsibility to report
unsafe conditions at the plant, including the presence of
accumulated ice and snow. Although we are not nearly so
sanguine as the trial judge about the absence of a duty to
plaintiff under the circumstances of this case, we do not need
to consider the issue further. Even assuming a duty existed, we
agree with the trial judge no reasonable jury could find for
plaintiff on this record.
In order to establish defendant's liability, plaintiff
needed to show: "(1) a duty of care, (2) a breach of that duty,
(3) actual and proximate causation, and (4) damages." Davis v.
Brickman Landscaping, Ltd., 219 N.J. 395, 406 (2014) (quoting
Jersey Cent. Power & Light Co. v. Melcar Util. Co., 212 N.J.
576, 594 (2013)). Because this is a premises liability case and
plaintiff a business invitee, see Rowe v. Mazel Thirty, LLC, 209
N.J. 35, 43 (2012), defendant owed plaintiff "a duty of
reasonable care to guard against any dangerous conditions on
[its] property that the owner either knows about or should have
discovered. That standard of care encompasses the duty to
conduct a reasonable inspection to discover latent dangerous
8 A-5022-16T1 conditions." Id. at 44 (quoting Hopkins v. Fox & Lazo Realtors,
132 N.J. 426, 434 (1993)). "[A]n invitee seeking to hold a
business proprietor liable in negligence 'must prove, as an
element of the cause of action, that the defendant had actual or
constructive knowledge of the dangerous condition that caused
the accident.'" Prioleau v. Ky. Fried Chicken, Inc., 223 N.J.
245, 257 (2015) (quoting Nisivoccia v. Glass Gardens, Inc., 175
N.J. 559, 563 (2003)).
The absence of actual or constructive notice of the
dangerous condition is generally fatal to a plaintiff's claim of
premises liability, Arroyo v. Durling Realty, LLC, 433 N.J.
Super. 238, 243 (App. Div. 2013), and it is here. The
undisputed facts in the motion record make clear defendant was
without actual or constructive notice of the icy condition near
the plant's west lift station. There was obviously no actual
notice because plaintiff, who had already walked the area just
two hours before the accident, testified he did not see ice at
any time before or after he fell. Plaintiff himself asserted on
the motion that defendant's maintenance crew had not seen the
black ice either, "or they would have spread salt on it."
As to constructive knowledge, plaintiff testified
defendant's maintenance crew had just finished plowing and
salting when he arrived for work and that conditions were fine
9 A-5022-16T1 when he began his tour. Indeed, plaintiff testified at his
deposition that he did not use the spotlight he was carrying to
determine whether conditions were icy in the area where he fell
"[b]ecause everything seemed okay." If plaintiff, who had twice
walked the area in the hours before the accident, saw nothing to
put him on notice of the icy conditions near the west lift, we
cannot see how defendant could be charged with such notice.
Further, plaintiff offered no proof defendant failed to
exercise reasonable care in its maintenance of the roads and
sidewalks he traversed in the course of his duties at the plant,
even assuming it had notice of the icy conditions. Defendant
had a snow removal protocol in place at the time of the
accident, which it was apparently following as plaintiff
testified the crews had just finished plowing and salting the
entire plant just as he arrived, even though it had not snowed
all day.
Having reviewed the motion record, we are satisfied
plaintiff failed to establish a prima facie case of premises
liability, entitling defendant to summary judgment dismissing
the complaint.
Affirmed.
10 A-5022-16T1