MUSULIN et al v. GARDNER FOX ASSOCIATES et al
Filing
106
MEMORANDUM ORDER denying 82 Motion for Summary Judgment ; denying 83 Motion for Summary Judgment ; administratively terminating 84 Motion for Summary Judgment and 85 Motion for Summary Judgment. Signed by Judge Renee Marie Bumb on 2/4/2014. (dmr)
<![CDATA[
NOT FOR PUBLICATION
[Docket Nos. 82, 83, 84 and 85]
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
________________________________
:
LYNNE S. MUSULIN, et al.,
:
:Civil Action No. 11-770(RMB/KMW)
Plaintiffs,
:
:
v.
:
MEMORANDUM ORDER
:
GARDNER FOX ASSOCIATES, et al., :
:
Defendants.
:
_______________________________________
:
THIS MATTER comes before the Court upon several motions for
summary judgment.
For the reasons that follow, the Court shall
deny or dismiss each motion.
In April 2008, Nicholas and Lynne Musulin contracted with
the defendant Gardner Fox Associates, Inc. (“Gardner Fox”) to
remodel their residence in Marlton Township, New Jersey.
Gardner
Fox subcontracted with the defendant Pearse Construction, Inc.
(“Pearse Construction”) for the framing and cabinetry, which, in
turn, subcontracted with Cahal O’Kane Custom Carpentry for the
carpentry work.
On December 20, 2008, as Nicholas Musulin was walking up a
set of temporary stairs, one of the treads came loose.
severely injuring his back.
He fell,
Mr. Musulin underwent various
medical procedures and suffered several medical complications and
infections.
away.
On June 29, 2009, Nicholas Musulin tragically passed
On December 28, 2010, Plaintiff Lynne S. Musulin brought
this Wrongful Death and Survival Action on behalf of herself, her
heirs, and the estate of Nicholas Musulin.
The matter was
removed to this Court on February 10, 2011, pursuant to 28 U.S.C.
§§ 1332 and 1141 (diversity of citizenship.)
The Court now addresses each of the pending motions for
summary judgment.
Summary judgment shall be granted if “the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
P. 56(a).
Fed. R. Civ.
A fact is “material” if it will “affect the outcome of
the suit under the governing law . . . .” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986).
A dispute is “genuine” if
it could lead a “reasonable jury [to] return a verdict for the
nonmoving party.”
Id.
When deciding the existence of a genuine
dispute of material fact, a court’s role is not to weigh the
evidence: all reasonable “inferences, doubts, and issues of
credibility should be resolved against the moving party.”
Meyer
v. Riegel Prods. Corp., 720 F.2d 303, 307 n.2 (3d Cir. 1983).
However, a mere “scintilla of evidence,” without more, will not
give rise to a genuine dispute for trial.
252.
2
Anderson, 477 U.S. at
Plaintiff’s Motion for Summary Judgment as to Liability
Against Gardner Fox. [Docket No. 82].
Plaintiff seeks summary judgment against Gardner Fox,
arguing that the defendant was negligent at the work site.
Gardner Fox concedes that it owed a duty of care to Plaintiff’s
decedent, but that issues of fact remain as to (1) how the
accident occurred, (2) whether Gardner Fox broached its duty of
care, and (3) whether or not the condition was unreasonably
dangerous.
After having read through the parties’ lengthy
submissions, the Court agrees with Gardner Fox.
(The Court
hastens to note, however, that the Court does not deny summary
judgment solely on the basis that counsel inadvertently failed to
file a proposed order).
Summary judgment is therefore DENIED.
Gardner Fox’s Motion for Partial Summary Judgment on
Liability Against Pearse Construction [Docket No. 84].
Gardner Fox brings a motion for partial summary judgment as
to liability on its breach of contract count, Count IV of the
Cross Claim.
Specifically, Gardner Fox argues that per the terms
of its contract with Pearse Construction, the defendant had an
obligation to obtain insurance naming Gardner Fox as an
additional insured.
Pearse Construction opposes the motion,
arguing, inter alia, that there is a genuine material dispute as
to whether or not a contract exists.
The Court finds, giving all
favorable and reasonable inferences to the non-moving party, that
there is a genuine dispute regarding whether the contract was
3
signed by Gardner Fox with authorization of Pearse McAleese or
anyone at Pearse Construction.
This motion is therefore DENIED.
Remaining Motions [Docket Nos. 83 and 85].
Gardner Fox brings two additional motions: (1) a motion for
an order granting partial summary judgment on Plaintiff’s claims
arising out of a loss of companionship [Docket No. 83]; and (2) a
motion for an order granting partial summary judgment on
Plaintiff’s claim relative to the purported loss value of Coward
Environmental Services, Inc. [Docket No. 85].
filed an opposition to both motions.
motions as premature.
Plaintiff has
The Court DISMISSES both
Such motions are more properly the subject
of motions in limine to be decided by the Court at the time of
trial, if necessary.
Accordingly, these motions are
administratively terminated, and Gardner Fox may seek to
reinstate them at the time set by the Court for the filing of in
limine motions.
Accordingly, it is on this 4th day of February 2014, ORDERED
as follows:
(1) Plaintiff’s motion for summary judgement be and is
hereby DENIED, [Docket No. 82];
(2) Defendant Gardner Fox’s motion for partial summary
judgment be and is hereby DENIED, [Docket No. 83]; and
4
(3) Defendant Gardner Fox’s motions for partial summary
judgment are hereby ADMINISTRATIVELY TERMINATED, [Docket Nos. 84
and 85].
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
5
]]>
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?
