LAWRENCE G. BOTTS, III v. LAFAYETTE CAMPBELL, LLC
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0664-16T2
LAWRENCE G. BOTTS, III, and
REBECCA BOTTS,
Plaintiffs-Appellants,
v.
LAFAYETTE CAMPBELL, LLC, a/k/a
LAFAYETTE TECHNOLOGY, LLC, and
DONALD MCNEIL,
Defendants,
and
239 DUNELLEN AVENUE, LLC,
and SHEENAN FUNERAL HOME,
Defendants-Respondents.
_______________________________
Argued February 13, 2018 – Decided May 9, 2018
Before Judges Fisher and Moynihan.
On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Docket No. L-
4112-14.
Stewart M. Leviss argued the cause for
appellants (Berkowitz, Lichtstein, Kuritsky,
Giasullo & Gross, LLC, attorneys; Stewart M.
Leviss, on the brief).
William J. Martin argued the cause for
respondent Sheenan Funeral Home (Martin, Gunn
& Martin, PA, attorneys; Elizabeth K. Merrill
and William J. Martin, on the brief).
Patrick A. Robinson argued the cause for
respondent 239 Dunellen Avenue, LLC (Robinson
Burns, LLC, attorneys; Patrick A. Robinson,
of counsel and on the brief; Colin R. Gibson,
on the brief).
PER CURIAM
Plaintiff Lawrence G. Botts – injured when a casket lift in
which he was riding dropped after its cable snapped – appeals
orders granting summary judgment to his employer, Sheenan Funeral
Home (Sheenan Funeral), which installed and utilized the lift, and
to the building owner, 239 Dunellen Avenue, LLC (239), which
leased, albeit without a written agreement, the premises to Sheenan
Funeral.
I
The motion judge granted 239's motion for summary judgment,
concluding, under McBride v. Port Authority of New York and New
Jersey,
295 N.J. Super. 521, 525 (App. Div. 1996), absent a
contractual obligation not present here, the landlord owed no duty
to repair or maintain; and plaintiff failed to show 239 exercised
exclusive control over the premises, and the dangerous condition
was obvious.
2 A-0664-16T2
When reviewing an order granting summary judgment, we apply
"the same standard governing the trial court." Oyola v. Liu,
431 N.J. Super. 493, 497 (App. Div. 2013); see Brill v. Guardian Life
Ins. Co. of Am.,
142 N.J. 520, 539-40 (1995). We owe no deference
to the motion judge's conclusions on issues of law. Manalapan
Realty, LP v. Twp. Comm. of Manalapan,
140 N.J. 366, 378 (1995).
Applying these standards, we find no error was committed by the
motion judge.
Plaintiff argues, quoting McBride,
295 N.J. Super. at 522
(alteration in original), that our decision there was misconstrued
by the motion judge because – unlike here where no written lease
existed – "[t]he 'dispositive issue posed by th[e] appeal' in
McBride was whether a commercial landowner who leased its entire
property could be held liable for injuries caused by a dangerous
condition on its property 'when the lease unquestionably places
responsibility for such maintenance or repair solely upon the
tenant.'"
The lease terms in McBride, however, provided the basis for
the "plaintiffs' thesis that a commercial landlord should be held
responsible to a tenant's employee injured on the leased premises
because it reserved the right to enter the leased premises to
perform repairs," which McBride held is "inconsistent with the law
of this State." Id. at 525. Plaintiff here ignores that portion
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of our opinion recognizing our Supreme Court's adoption of the
common law principle in Coleman v. Steinberg: "In the absence of
an agreement to make repairs, the landlord is under no obligation
to do so. That burden falls upon the tenant." Ibid. (quoting
Coleman v. Steinberg,
54 N.J. 58, 63 (1969)). Contrary to
plaintiff's position, we concluded:
While some states have imposed a general tort
duty of reasonable care upon landlords which
may not be avoided by lease provisions,
Prosser and Keeton on Torts, § 63 (5th ed.,
1984), our Supreme Court has not yet accepted
that concept, and plaintiff has not contended
in the court below or in this court that it
should be incorporated into our common law.
Furthermore, in Milacci v. Mato Realty Co.,
217 N.J. Super. 297, 301 (App. Div. 1987), we
expressly rejected the opportunity to so
hold.[1]
[McBride,
295 N.J. Super. at 526.]
The absence of a lease between 239 and Sheenan Funeral does
not impose an obligation on 239 as landlord of the premises it,
in no way, controlled. In Hopkins v. Fox & Lazo Realtors, 132
1
In Milacci, even though a copy of the lease was not contained in
the record, it was determined without dispute that the tenant
State of New Jersey had exclusive control of the premises on which
the plaintiff fell on accumulated sand and dirt, and for which the
State contracted for custodial services.
217 N.J. Super. at 301.
We rejected the plaintiff's contention that the landlord "had a
non-delegable duty to see that the premises were in a safe
condition" for use by the plaintiff because the landlord had not
retained control over the area where the plaintiff was injured and
the condition was "obvious" and "transient." Ibid.
4 A-0664-16T
2 N.J. 426, 439 (1993) (alteration in original) (citations omitted),
our Supreme Court instructed that our determination of whether to
impose
a duty of care and the formulation of
standards defining such a duty derive from
considerations of public policy and fairness.
"This Court has carefully refrained from
treating questions of duty in a conclusory
fashion, recognizing that '[w]hether a duty
exists is ultimately a question of fairness.'"
Weinberg v. Dinger,
106 N.J. 469, 485 (1987)
(emphasis omitted) (quoting Goldberg v. Hous.
Auth.,
38 N.J. 578, 583 (1962)).
Whether a person owes a duty of
reasonable care toward another 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. That inquiry
involves identifying, weighing, and balancing
several factors — 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 analysis is both very fact-specific and
principled; it must lead to solutions that
properly and fairly resolve the specific case
and generate intelligible and sensible rules
to govern future conduct.
The specific facts of this case, under the Hopkins lens,
place all duties regarding the premises, including the casket
lift, on Sheenan Funeral. Rosemary Sheenan, the sole member of
239 since its formation in 2007, played no role in the use,
improvement or maintenance of the property since it was deeded to
239 for estate planning purposes in 2008. Her husband, Thomas
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Sheenan, ran the funeral business, had the casket lift installed
decades prior to 239's ownership, and contracted for the lift's
maintenance. Sheenan Funeral was, and had been for decades, in
exclusive possession of the premises.2 It paid all taxes,
insurance premiums, and utilities, and alone maintained the
buildings and grounds. Although no written lease placed the duty
to maintain and repair on Sheenan Funeral, the parties' conduct
certainly did. Thiokol Chem. Corp. v. Morris Cty. Bd. of Taxation,
41 N.J. 405, 417 (1964). At no time did 239 have any involvement
in operations on the premises, including the lift. Notably, the
lift was used not by the general public, but exclusively by Sheenan
Funeral's employees. Considering the conduct of the parties, we
discern none of the Hopkins factors compel imposition of a duty
on 239 to plaintiff. The judge correctly granted 239 summary
judgment.
2
Plaintiff notes Sheenan Funeral was not the exclusive tenant
because a dentist – also a Sheenan family member – occupied a
separate but connected building. Inasmuch as this constitutes an
exclusive-possession argument, it was not raised before the motion
judge and we will not consider it here. Nieder v. Royal Indem.
Ins. Co.,
62 N.J. 229, 234 (1973). The argument also lacks
sufficient merit to warrant discussion, R. 2:11-3(e)(1)(E),
because there is no proof the dentist had any control over the
funeral operation, including the lift.
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II
The motion judge also granted Sheenan Funeral's motion for
summary judgment finding it did not commit an intentional wrong,
and the claim was precluded by the election surrender of other
remedies provision of the Worker's Compensation Act (Act),
N.J.S.A. 34:15-8.
Viewing the facts in the light most favorable to plaintiff,
we review the judge's legal determination de novo, owing no special
deference to his legal conclusion. Zabilowicz v. Kelsey,
200 N.J.
507, 512-13 (2009).
Plaintiff argues the judge erred in granting summary judgment
"because disputed issues exist as to material facts concerning
both the 'conduct' and 'context' prongs outlined in Laidlow [v.
Hariton Machine Co.,
170 N.J. 602 (2002)]," and that the evidence
viewed in the light most favorable to plaintiff shows Sheenan
Funeral "'intentionally' exposed its employees" to the hazard that
injured plaintiff.
We disagree and affirm the summary judgment order in favor
of Sheenan Funeral substantially for the reasons set forth by the
motion judge in his written amplified decision. R. 2:5-1(b). The
judge correctly considered the "formidable standard" for
circumventing the Act's exclusive remedy for workplace injuries
when injuries result from an employer's "intentional wrong" which,
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our Supreme Court has held, must be demonstrated by "a substantial
certainty that injury or death will result." Van Dunk v. Reckson
Assocs. Realty Corp.,
210 N.J. 449, 451 (2012). The Van Dunk
Court reaffirmed that to establish "substantial certainty . . .
it is not enough that 'a known risk later blossoms into reality.'
Rather, the standard 'demand[s] a virtual certainty.'" Id. at 461
(quoting Millison v. E.I. Du Pont de Nemours & Co.,
101 N.J. 161
(1985)).
The motion judge also considered the Millison Court's mandate
that
when assessing claims of intentional wrong,
[courts must] engage in a two-step analysis.
First, a court considers the "conduct prong,"
examining the employer's conduct in the
setting of the particular case. Second, a
court analyzes the "context prong,"
considering whether "the resulting injury or
disease, and the circumstances in which it is
inflicted on the worker, [may] fairly be
viewed as a fact of life of industrial
employment," or whether it is "plainly beyond
anything the legislature could have
contemplated as entitling the employee to
recover only under the Compensation Act."
[Van Dunk,
210 N.J. at 461 (second alteration
in original) (quoting Millison,
101 N.J. at
178-79).]
To that end, he regarded the predicates the Van Dunk Court
determined were pertinent in deciding whether an employer
committed an intentional wrong: an "employer's affirmative action
8 A-0664-16T2
to remove a safety device from a machine, prior OSHA[3] citations,
deliberate deceit regarding the condition of the workplace,
machine, or . . . the employee's medical condition, knowledge of
prior injury or accidents, and previous complaints from
employees." Id. at 471. The judge assessed plaintiff-favorable
facts of intentional wrongdoing: the single riderless lift's prior
cable snap in the 1990s; Sheenan's affirmation of employees'
personal use of the lift; Donald McNeill's opinion4 indicating a
violation of OSHA standard 1910.179.5
3
United States Department of Labor Occupational Safety and Health
Administration.
4
The motion judge referred to Donald McNeill as plaintiff's
expert. He was a named defendant and the owner of defendant
Lafayette Technologies, LLC, an elevator maintenance company that
inspected and maintained the casket lift.
5
The only reference in the record to "OSHA standard 1910.179" is
McNeill's answer to an interrogatory in which he references that
regulation, "including but not limited to Standards 1910.179(b)(2)
and 1910.179(n)(3)(v)," in contending Sheenan Funeral and 239
"were negligent in operating and maintaining the hoist, and
specifically in not ensuring that no one used the hoist as an
elevator." Plaintiff's expert's report does not mention that
regulation. Title 29 of the Code of Federal Regulations, section
1910.179, pertains to overhead and gantry cranes; crane is defined
as "a machine for lifting and lowering a load and moving it
horizontally, with the hoisting mechanism an integral part of the
machine." 29 C.F.R. § 1910.179(a)(1) (2016). We see no evidence
in the record that the mechanism here in question was able to move
a load horizontally. All documents in the record from OSHA refer
to the mechanism as an elevator and do not mention section
1910.179. No matter the source, we determine that the use of the
lift by persons – employees — was the standard here violated.
9 A-0664-16T2
To that evidence we add that signs in the lift warned against
its use by living passengers and that the operator switch in the
lift could be reached from outside. All favorably-viewed facts,
however, do not, meet the substantial certainty test to overcome
the Worker's Compensation bar, especially considering there is no
evidence that: Sheenan Funeral removed or altered any safety guards
or engaged in deliberate deceit regarding the lift's condition;
passengers using the lift were previously injured; OSHA previously
issued violations; or any employee complained about the lift. We
agree with the motion judge that plaintiff's evidence does not
overcome the "formidable" barrier of the Act's preclusive
provisions.
Affirmed.
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