JOHN TYLL v. JOSEPH J. MARZORATI, GDS FOODS, INC.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4883-04T34883-04T3

JOHN TYLL,

Plaintiff-Appellant,

v.

JOSEPH J. MARZORATI, GDS FOODS, INC.,

HAYNES SECURITY, INC. and MAXIE MILLER, III,

Defendants-Respondents.

_______________________________________________

 

Submitted September 19, 2006 - Decided October 18, 2006

Before Judges Kestin and Weissbard.

On appeal from Superior Court of New

Jersey, Law Division, Essex County, L-4063-03.

Rubin & Connelly, attorneys for appellant

(Brian F. Connelly, of counsel and on the brief).

Romando, Tucker, Zirulnik & Sherlock, attorneys

for respondents Joseph J. Marzorati and GDS Foods,

Inc. (Kenneth L. Malmud, on the brief).

Widman, Cooney & Wilson, attorneys for

respondents Haynes Security, Inc. and Maxie

Miller III (Francis E. Schachtele, on the brief).

PER CURIAM

Plaintiff John Tyll appeals from a final judgment dismissing his complaint against defendants Joseph Marzorati and GDS Foods, Inc., (GDS) following a jury verdict finding no negligence on the part of those defendants. Plaintiff also appeals the dismissal, pursuant to Rule 4:40, of his complaint against defendants Haynes Security, Inc. (Haynes) and Maxie Miller, III, upon completion of the presentation of all of the evidence to the jury. We affirm the jury verdict in favor of Marzorati and GDS but reverse the ruling as to Haynes and Miller and remand for a new trial. Since our decision is fact-driven, we set out the evidence in some detail.

On the morning of May 24, 2001, plaintiff was chief lineman for Public Service Electric & Gas (PSE&G), assigned to replace a broken utility pole on Valley Road in Montclair. The pole was located on the west side of Valley slightly south of the Emerson Place intersection. On the east of Valley, almost across from the pole location, was the intersection of Wellesley Road. There were two PSE&G vehicles involved in the operation - a "Digger Derrick" and an aerial lift truck with a bucket.

After consulting with his equipment operator and the "flag men," cones were placed in the roadway around the lift truck to protect the vehicle from passing traffic on Valley Road. Security for the work was provided by defendant Haynes, an independent contractor that routinely functioned in that capacity for PSE&G. Haynes provided two flag men, defendant Miller and Jose Merchan, who would direct traffic around the work site since the lift truck and cones obstructed a good portion of the southbound lanes on Valley Road. Miller was stationed at Wellesley Road directing northbound Valley Road traffic, while Merchan was at Emerson Place directing movement of the southbound traffic.

With the cones in position, plaintiff went into the aerial lift bucket, put on his harness and ascended about sixteen feet. He was facing away from traffic, toward the pole, when he was violently thrown about as the result of a portion of the lift being struck by a southbound vehicle driven by defendant Marzorati, who was in the course of his employment with GDS. According to plaintiff, the flag men were there to stop southbound traffic so that "we wouldn't have cars going over the double yellow line or the single yellow line, whichever it is. I don't remember exactly. So that there wouldn't be any accidents, for the safety of us and for the general public."

Apart from medical evidence, the only other proofs offered by plaintiff were portions of the deposition testimony of defendants Marzorati and Miller. In response to an inquiry asking how the accident happened, Marzorati said:

Okay. I'm traveling south on Valley Road, I'm following a couple cars, two cars I was following, and the flagman was waiving [sic] his hand to come on to go, so I went and at the same time they're letting cars go on the other side, too, and we had very little room to work with to get around, but I did. I went around the cone and I was driving -- and I was just going by what the flagman was telling me and before I knew it, I hit something, somebody was screaming - somebody was screaming. I heard somebody screaming.

When I was about ten feet past the bucket, someone came down and said, hey, man, you hit somebody. So I turned around and I went back.

In other testimony, Marzorati indicated that he had been stopped for ten to twenty seconds before the flagman waved him to proceed and in that period he saw plaintiff in the bucket, which was stationary the entire time. He was also able to observe four or five cones several feet from the center line of the roadway. Marzorati also testified as follows:

Question: At any time from the moment that you started until the accident happened, did a car traveling northbound pass you?

Answer: Yes.

[Question]: How many cars?

Answer: A couple.

Question: A couple?

Answer: Yes.

[Question]: When did they pass you with regard to the intersection on the right?

Answer: Thereabout the same time as when I was going.

Question: Were there -- were they passing you at any time that you passed the truck?

Answer: Yes.

[Question]: Where -- was there one or more?

Answer: Multiple.

Answer: Multiple, yes.

Question: A couple of them. So when you were told to go on by to go southbound, there were other cars that came by?

Answer: Yes.

[Question]: And how close were you to them?

[Answer]: Very close. Less than a foot.

[Question]: Less than a foot?

Answer: Yes.

[Question]: And you were at what point when you passed - and you were at - at that point, when you passed the truck?

Answer: Yes.

In his deposition, Miller stated that his job "was to watch Jose [Merchan] so we can work the traffic." Miller stated that Marzorati had actually struck a portion of the aerial lift, referred to as an elbow or knuckle, that extended out several feet beyond the cones. The elbow was painted white with, according to plaintiff, red and white stripes. Significantly, Miller testified that he was directing northbound traffic, rather than southbound as was incorrectly noted on the police report of the accident. All defendants moved for an involuntary dismissal at the end of the plaintiff's case; the motions were denied.

In defense, both Marzorati and Miller offered very brief deposition excerpts of plaintiff and Miller respectively. Of note was Miller's testimony that he and Merchan were about seventy yards apart from each other. At the conclusion of all of the evidence, the motions to dismiss were renewed. At this point, the judge granted the Miller/Haynes motion but denied that of Marzorati/GDS. As noted at the outset, the jury provided a negative response to the interrogatory asking whether plaintiff had sustained his burdens of proving that Marzorati and GDS were negligent. The vote was 7-1.

On appeal, plaintiff contends that the judge erred in granting the motion of Miller and Haynes for dismissal at the conclusion of the evidence and that the verdict in favor of Marzorati and GDS was against the weight of the evidence. We address the dismissal motion first.

In his complaint, plaintiff named Miller and Haynes as defendants but not Merchan. Plaintiff's sole allegation was that Miller "who was employed by defendant, Haynes Security, was the flag person directing traffic." As the proofs demonstrated, Miller was indeed directing traffic but was not the person who directed Marzorati to move; rather, it was Merchan. It seems conceded that plaintiff named Miller because the police report had erroneously reversed the roles of the two men, with Miller directing southbound traffic and Merchan northbound, rather than the opposite. However, no later than when Miller's deposition was taken, the mistake became evident. Nevertheless, neither immediately thereafter nor up to the time of trial did plaintiff seek to amend his complaint or to add Merchan as a defendant. In arguing for dismissal, Miller/Haynes argued that the pleading error was fatal in that Miller had no responsibility for the movement of the Marzorati vehicle and Haynes was only named as the employer of Miller, i.e., its vicarious liability was predicated on that of Miller. In response, plaintiff argued that Haynes was, or should be, responsible for Merchan as well as Miller, despite the inartful pleading. The judge agreed with defendants. We agree with plaintiff that the judge's view constituted a "strict construction of the pleadings."

There is no doubt that Haynes could be held liable under respondeat superior for the actions of its employees. Carter v. Reynolds, 175 N.J. 402, 408-09 (2003). Indeed, there is no requirement that any employee be named as a defendant in order to hold the employer responsible for the actions of known, or unknown employees. To borrow from Humpty Dumpty,* "The question is . . . which is to be master," the pleadings or the evidence? We have no doubt that, to the extent it may be deemed necessary, the judge could properly have allowed the complaint to be amended to conform to the evidence that Merchan, not Miller, was the proper Haynes employee. R. 4:9-2; Winslow v. Corporate Express, Inc., 364 N.J. Super. 128, 140 (App. Div. 2003). We discern no prejudice to defendants since plaintiff's legal theory remained the same. But plaintiff made no such application. Plaintiff did argue that no dismissal should be entered as to Haynes, because of its responsibility for either Miller or Merchan. We agree, but we go further; not only was it error to dismiss Haynes but Miller as well.

The evidence, granting plaintiff the benefit of all favorable inferences, R. 4:37-2(b); Dolson v. Anastasia, 55 N.J. 2, 5-6 (1969), was that Miller and Merchan operated as a team. Arguably, only one lane of traffic should have been permitted to move at a time. However, according to Marzorati, as he moved forward, opposing traffic was also moving, with the two lanes only a foot apart. A rational jury could conclude that it was the tightness of the passage that caused Marzorati to strike the elbow which was protruding into his lane of travel. It was error to grant the dismissal motion and there must be a new trial as to Miller and Haynes.

We reach a different conclusion as to defendants Marzorati and his employer, GDS. Plaintiff argues that the jury verdict was against the weight of the evidence. We see no sound reason in this case to depart from the settled rule that such an argument is "not cognizable on appeal unless a motion for a new trial on that ground was made in the trial court." R. 2:10-1. Beasley v. Passaic County, 377 N.J. Super. 585, 610-11 (App. Div. 2005); Battista v. Olson, 213 N.J. Super. 137, 141 (App. Div. 1986). It is not our function to second-guess the jury. And even assuming that R. 2:10-1 is "subject to relaxation based on considerations of substantial justice," Pressler, Current New Jersey Court Rules, comment 2 on R. 2:10-1, p.595 (2007), we are not persuaded that such extraordinary intervention is required in this case.

 
Affirmed as to Marzorati and GDS; reversed as to defendants Miller and Haynes and remanded for a new trial.

* Lewis Carroll, Through the Looking Glass.

(continued)

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A-4883-04T3

October 18, 2006