DAVID B. TAYLOR v. CLIFFORD A. AGUADO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0488-09T20488-09T2

DAVID B. TAYLOR,

Plaintiff-Respondent,

v.

CLIFFORD A. AGUADO,

Defendant-Respondent,

and

AMERGEN ENERGY CO., LLC,

Defendant-Appellant.

_________________________________

Argued June 3, 2010 - Decided July 15, 2010

Before Judges Cuff and Fasciale.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-475-07.

Stephen A. Rudolph argued the cause for appellant (Rudolph & Kayal, attorneys; Mr. Rudolph, of counsel and on the brief).

Riaz A. Mian argued the cause for respondent David B. Taylor (Law Offices of Riaz A. Mian, attorneys; Deborah J. Davison, on the brief).

PER CURIAM

Defendant, AmerGen Energy Co., LLC (AmerGen), appeals from an August 11, 2009 order of judgment, and from a September 11, 2009 order denying its motion for a judgment notwithstanding the verdict (JNOV). We affirm.

Plaintiff, David B. Taylor, filed a premises liability lawsuit seeking money damages for injuries he sustained on February 2, 2005, while crossing a picket line at the Oyster Creek Nuclear Facility (Facility). AmerGen was the undisputed licensed owner of the Facility, and it leased part of that property to Jersey Central Power and Light (JCP&L) to use as a warehouse. During a strike at JCP&L in 2004-05, JCP&L relied on truck drivers employed by an independent contractor to deliver supplies to its warehouse. Plaintiff was one of the truck drivers.

After making a delivery to the warehouse, plaintiff was assaulted by codefendant, Clifford A. Aguado, a JCP&L picketer. He sustained various personal injuries for which he sought compensatory and punitive damages. A jury awarded plaintiff $100,000 to compensate him for his injuries, and found AmerGen sixty percent liable and Aguado forty percent liable for the incident. Aguado has not filed a notice of appeal. At issue in this appeal is whether plaintiff adduced sufficient evidence that AmerGen owned the Facility, had a duty to protect plaintiff, and breached that duty.

As noted, plaintiff adduced evidence at trial, undisputed by AmerGen, that AmerGen owned and operated the Facility. Access to the Facility was through either a north, central or south gate. JCP&L's warehouse was accessible by the north and south gates. The central gate provided direct access to the nuclear generator facility and was heavily guarded. AmerGen also placed guards at the north gate. AmerGen provided no security at the south gate, and it was only through this gate that plaintiff and other drivers could access the JCP&L portion of the premises, and JCP&L instructed plaintiff and other drivers to use only the south gate. This limitation resulted from an agreement between AmerGen and JCP&L to keep strike activity at one location. Over the course of nearly two months, plaintiff crossed the picket line on a daily basis because no other route to the warehouse was available to him.

Prior to the incident, plaintiff expressed concern about his safety when delivering supplies to the warehouse. He requested an escort, or some form of security, because he was afraid of being attacked. During the JCP&L strike, AmerGen's private security company, Wackenhut, provided protection at the north and central gates but not the south gate. On four separate occasions, plaintiff attempted to use the safer north gate, but JCP&L instructed him to use the south gate where the picketers were gathered. Prior to the February 2, 2005 incident, picketers screamed at plaintiff, threw bottles and rocks at his truck, and directed crude gestures at him.

Plaintiff testified that over the course of two months, the picketers became more hostile towards him. Despite the escalating intensity of the strike, no security was provided. Even though AmerGen knew that JCP&L was experiencing a daily strike at the south gate for nearly two months, AmerGen had no emergency plan in place. AmerGen did not give plaintiff any emergency number to call and did not give any instructions or guidance about what to do if the harassment of drivers turned violent.

AmerGen understood the importance of providing security during a strike. In 2003, AmerGen experienced its own strike. During the AmerGen strike, it hired Wackenhut to provide protection. The security measures AmerGen provided during its strike included cameras and military police and troopers to monitor the north and central gates.

On February 2, 2005, plaintiff made a delivery to the Facility. He made a left turn from Route Nine onto Discharge Way intending to use the south gate into the Facility. Plaintiff was stopped by the picketers, but made it through the picket line to the JCP&L warehouse. He requested permission to leave through another gate, but was not permitted to do so. After plaintiff completed the delivery, he left the warehouse on his way back to the south gate. As plaintiff's seventy-two foot, flat-bed trailer proceeded through the south gate, he noticed Aguado coming at him at an angle. As plaintiff drove through the gate, Aguado slashed his tires, jumped on the truck, opened the door, and attempted to pull plaintiff out of his truck. Plaintiff used a hammer that he kept inside his truck to fend off Aguado. As a result of the assault, plaintiff suffered severe injuries including a glenoid fracture, labral tear, and rotator cuff tendinitis.

At trial, after the charge conference, AmerGen moved for an involuntary dismissal pursuant to Rule 4:37-2(b). It argued that it did not own the area where the incident occurred, and even if it did, that AmerGen did not owe plaintiff a duty to provide security. The trial judge denied that motion, and, following the return of the verdict, denied AmerGen's motion for JNOV.

On appeal, AmerGen contends that the trial judge erred by not granting its motions for an involuntary dismissal and JNOV. It argues that (1) plaintiff failed to prove that it owned the property where the incident occurred; (2) it did not owe plaintiff a duty to provide security; (3) it did not owe plaintiff a duty to protect him from doing the job he was hired to do; (4) it had no notice of any dangerous condition; and (5) that expert testimony about the standards of security was needed.

On appeal from either a motion for involuntary dismissal, pursuant to Rule 4:37-2(b), or a motion for JNOV, pursuant to Rule 4:40-2(b), an appellate court is guided by the following standard: "'[I]f, accepting as true all the evidence which supports the position of the party defending against the motion and according him the benefit of all inferences which can reasonably and legitimately be deduced therefrom, reasonable minds could differ, the motion must be denied . . . .'" Zive v. Stanley Roberts, Inc., 182 N.J. 436, 441-42 (2005) (quoting Verdicchio v. Ricca, 179 N.J. 1, 30 (2004)). Thus, this court accepts as true all the evidence supporting plaintiff and accords him all legitimate inferences. Id. at 441. A reviewing court "'is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the party opposing the motion.'" Epperson v. Wal-Mart Stores, Inc., 373 N.J. Super. 522, 527 (App. Div. 2004) (quoting Dolson v. Anastasia, 55 N.J. 2, 5-6 (1969)).

These motions "only should be granted where no rational juror could conclude that the plaintiff marshaled sufficient evidence to satisfy" a prima facie case, Godfrey v. Princeton Theological Seminary, 196 N.J. 178, 197 (2008), and when there are no material factual disputes, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536-37 (1995).

We begin our analysis by addressing whether plaintiff proved that AmerGen was the owner of the south gate area where the incident occurred. The trial judge found that "[t]here's enough evidence in for [the jury] to make the conclusion that [AmerGen is] the owner." We agree. Lance Lilen, a senior procurement specialist for AmerGen, testified that AmerGen was the licensed owner of the Facility, and that AmerGen had the obligation to maintain Facility property. Neither party adduced any other evidence on this issue.

AmerGen provided security at the north and central gates, and could have done so at the south gate. The manager of operation support services for JCP&L testified that he could have asked Lilen to provide security at the south gate. Lilen's deposition testimony read to the jury was that "generally speaking, we have the obligation to maintain the facilities." From these facts, a reasonable inference can be drawn that AmerGen owned the Facility, including all three gates. AmerGen conceded at oral argument that it made a calculated decision not to produce any further evidence regarding ownership and occupancy at the Facility.

Whether AmerGen owed plaintiff a duty and the scope of that duty are questions of law. Clohesy v. Food Circus Supermarkets, Inc., 149 N.J. 496, 502 (1997). This inquiry "'turns on whether the imposition of such a duty satisfies an abiding sense of basic fairness under all of the circumstances in light of considerations of public policy.'" Olivo v. Owens-Illinois, Inc., 186 N.J. 394, 401 (2006) (quoting Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439 (1993)).

In determining whether a landowner owes a duty to an individual, our courts balance and weigh "'the relationship of the parties, the nature of the attendant risk, the opportunity and ability to exercise care, and the public interest in the proposed solution.'" Brunson v. Affinity Fed. Credit Union, 199 N.J. 381, 403 (2009) (quoting Hopkins, supra, 132 N.J. at 439). While the foreseeability of danger is an important factor for the court's consideration, it is not dispositive. Zepf v. Hilton Hotel & Casino, 346 N.J. Super. 6, 16 (App. Div. 2001). "[T]he key issue is whether . . . the imposition on the landowner of a duty to protect the injured party is fair and just." Ibid. This analysis applies even to instances where the injury occurred off the premises. Ibid. (citing Kumicz v. Ivy Hill Park Apts., 147 N.J. 510, 312 (1997)). See also Clohesy, supra, 149 N.J. at 519-20 (holding that the defendant supermarket owed duty to provide some measure of security in the parking lot to protect its customers); Mulraney v. Auletto's Catering, 293 N.J. Super. 315, 319 (App. Div.) (imposing duty on a catering facility to undertake reasonable safeguards for the safety of its patrons who regularly used an unaffiliated or private parking lot across the street from that catering facility), certif. denied, 147 N.J. 263 (1996).

Here, the relationship between AmerGen and plaintiff, and the nature of the risk support a duty to those who enter the premises. AmerGen benefited indirectly from plaintiff. Plaintiff made deliveries to AmerGen's tenant, JCP&L. Without the receipt of supplies during the strike, AmerGen's tenant would not have been able to continue its operations. See Restatement (Second) of Torts 332 (1965) (stating that an "invitee" includes a "business visitor," which is defined as "a person who is invited to enter . . . land for a purpose directly or indirectly connected with business dealings with the possessor of the land"); cf. Monaco v. Hartz Mountain Corp., 178 N.J. 401, 418-19 (2004) (finding commercial landlord owed duty to employee of tenant as invitee to maintain its land in a safe condition); Restatement (Second) of Torts, supra, 332 comment k ("[A] lessor of . . . an office in an office building, who retains control of the halls, stairways, and other approaches to the . . . office, holds such parts of the premises open to any person whom his lessee may choose to admit, irrespective of whether the visit of such a person is for his own or the lessee's business purpose . . . .").

Regarding the nature of the risk, our Supreme Court has recognized that:

"[W]here there are special conditions from which the owner or operator of the premises should recognize and foresee an unreasonable risk or likelihood of harm or danger to invitees from criminal or wrongful acts of others, he must take reasonable precautions which may, under the circumstances, fairly and justly entail the employment of special guards or police."

[Clohesy, supra, 149 N.J. at 517 (quoting Goldberg v. Housing Auth. of Newark, 38 N.J. 578, 597-98 (1962) (Jacobs, J.

dissenting)).]

AmerGen knew or should have known that there were picketers outside the south gate on the day that plaintiff was assaulted. The assault occurred over two months after the JCP&L strike began. Leading up to the incident, the picketers screamed at plaintiff, threw bottles and rocks at his truck, and gestured rudely at him. From mid-December 2004 to February 2005, the strikers became more hostile towards plaintiff. Despite the increase in intensity of the strike, security was not provided. AmerGen did not give plaintiff an emergency number to call, and did not give any instructions or guidance about what to do if the picketers became aggressive.

"The picket line is often a very highly and emotionally charged situation. The livelihoods of the strikers are at risk. Those who do not participate in the strike and those who are hired as replacement workers are often the subject of abuse by striking workers." Gibson v. Review Bd. of the Ind. Dep't of Workforce Dev., 671 N.E.2d 933, 935 (Ind. Ct. App. 1996). Here, plaintiff was a replacement worker for JCP&L, whose actions permitted JCP&L to continue its business operations in spite of the strike. Given the escalation of emotions on the picket line, it was reasonably foreseeable that plaintiff would be subjected to violence in an unmonitored area near the Facility.

AmerGen also had the opportunity and ability to exercise sufficient care. The record demonstrates that AmerGen had constructive notice of the JCP&L strike and the activities of the picketers at the south gate. It also employed a private security company to secure two of the three gates and could have readily deployed guards to the third gate.

Furthermore, AmerGen had experience with labor disputes and presumably was aware that a picket line can present a volatile situation. The extension of existing security to the third gate furthers the public interest in maintaining order and a non-violent atmosphere.

In balancing and weighing the relationship of the parties, the nature of the attendant risk, the opportunity and ability to exercise care, and the public interest in the proposed solution, the imposition on AmerGen of a duty to protect those who passed through the gates of the Facility is fair and just under the facts of this case. At a minimum, the scope of that duty extended to provision of some form of security outside of the south gate to assure safe passage of those who sought to enter and exit the premises.

AmerGen argues, however, that it did not have a duty to protect plaintiff because he was harmed by the very hazard he was hired to perform. We disagree.

A landowner who engages an independent contractor to work on its premises owes the independent contractor "a duty to provide a reasonably safe place in which to work." Wolczak v. Nat'l Elec. Prods. Corp., 66 N.J. Super. 64, 75 (App. Div. 1961). However, this duty does not apply to the "'known hazards which are part of or incidental to the very work the contractor was hired to perform.'" Olivo, supra, 186 N.J. at 407 (quoting Muhammad v. N.J. Transit, 176 N.J. 185, 199 (2003)). In other words, "[a] 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.'" Ibid. (quoting Muhammad, supra, 176 N.J. at 198). Central to this exception is the rationale on which it is premised that a "'landowner may assume that the worker, or his superiors, are possessed of sufficient skill to recognize the degree of danger involved and to adjust their methods of work accordingly.'" Ibid. (quoting Muhammad, supra, 176 N.J. at 199).

Plaintiff was hired to drive a truck and make deliveries, which included driving and delivering material to the JCP&L warehouse. Driving by picketers is not the type of hazard contemplated by Wolczak. Even if it were, it is not the type of hazard to which a sufficiently skilled truck driver could adjust his "methods of work accordingly." Compare Moore v. Schering Plough, Inc., 328 N.J. Super. 300, 307 (App. Div. 2000) (not applying the hazard exception to a security guard who slipped on ice while on patrol), with Rigatti v. Reddy, 318 N.J. Super. 537, 542 (App. Div. 1999) (exempting a landowner from liability when an independent contractor, who was contracted to install galvanized steel sheeting on a roof, fell through the roof).

Finally, we reject the argument advanced by AmerGen that expert testimony was required to establish the need for security. N.J.R.E. 702 provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.

In determining if expert testimony is necessary, a court considers "whether the matter to be dealt with is so esoteric that jurors of common judgment and experience cannot form a valid judgment as to whether the conduct of the party was reasonable." Butler v. Acme Mkts., Inc., 89 N.J. 270, 283 (1982). The need for security during a long strike to protect persons entering and leaving the premises and performing services for the employer is not "so esoteric that jurors of common judgment and experience cannot form a valid judgment . . . ." Ibid.

 
Affirmed.

On appeal, AmerGen produced a purported Easement and Licensing Agreement (Agreement) between JCP&L and AmerGen, and additional pages of Lilen's deposition transcript to dispute ownership for the first time. Both documents were not introduced at trial. We, therefore, will not consider these documents.

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