RONALD HURLESS, JR. v. DELAWARE RIVER PORT AUTHORITY et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3778-04T13778-04T1

RONALD HURLESS, JR.,

Plaintiff-Appellant,

v.

DELAWARE RIVER PORT AUTHORITY

and GREENMAN-PEDERSEN, INC.,

Defendants-Respondents.

_______________________________________________________________

 

Argued September 27, 2006- Decided November 30, 2006

Before Judge Cuff, Fuentes and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-5093-01.

Michael A. Kaplan argued the cause for appellant (Jarve & Kaplan, attorneys; Ciro Tufano and Ann Madden Tufano, on the brief).

Kevin R. Dochney argued the cause for respondent Delaware River Port Authority (Daniel & Dochney, attorneys; Lawrence S. Berger, on the brief).

Walter F. Kawalec, III argued the cause for respondent Greenman-Pedersen, Inc. (Marshall, Dennehey, Warner, Coleman & Goggin, attorneys; Mr. Kawalec, of counsel and on the brief).

PER CURIAM

Plaintiff, Ronald Hurless, Jr. (Hurless), appeals from the November 22, 2002 order dismissing his complaint against defendant, Greenman-Pedersen, Inc. (GPI) and the January 7, 2005 order granting summary judgment to defendant, Delaware River Port Authority (DRPA). We have carefully reviewed the record and considered the applicable legal standards. We affirm.

In reviewing a grant of summary judgment, we use the same standard employed by the trial court. Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230 (App. Div. 2006). A moving party is entitled to summary judgment if there is no genuine issue as to any material fact in the record. R. 4:46-2. We decide first whether there was a genuine issue of material fact; if not, we then decide whether the motion court's application of the law was correct. Id. at 230-31. We apply the standards articulated by the Supreme Court in Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540 (1995).

[A] determination whether there exists a "genuine issue" of material fact that precludes summary judgment requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.

We must assume the non-moving party's version of the facts as true and give that party the benefit of all favorable inferences available in the record. Id. at 536.

On May 12, 2000, plaintiff was working for NAB Construction Corp. (NAB) as a structural steel/ironworker. DRPA had contracted with NAB to perform repair and restoration work on the Benjamin Franklin Bridge which spans the Delaware River between Camden and Philadelphia and which is owned by DRPA. Because it was raining and foggy at the top of the bridge, plaintiff and his co-workers were not immediately allowed to begin work. After a ninety-minute delay, the work crew, including plaintiff, were directed to ascend the bridge on the New Jersey side. Within the next thirty minutes, the foreman instructed the men to cross over to the Philadelphia side.

Plaintiff was performing work on the main cable of the bridge. A sloped catwalk provided access to the cable and cleats were installed on the catwalk to provide traction for the workers as they ascended to and descended from the work area. Canvas tents covered the immediate area of the cable where plaintiff and the others were working. The tents, twenty-seven feet in length, were moved as the work progressed along the cable. In addition, foam matting was placed on the floor of the catwalk within the tent to catch oil drippings or paint chips that fell from the work being performed.

The foam matting was originally contained within the tented area itself and did not extend outside of the tent. However, as the project continued, plaintiff testified that his NAB foreman ordered the matting to be installed on the catwalk outside of the tent. This was intended to expedite the project by reducing the time it took to physically move the tent and matting along as the work progressed. On the day in question, the matting was outside the tented area and exposed to the rain.

At some point, plaintiff and his co-workers were ordered to stop work and descend the bridge because the weather worsened. As he stepped outside the tent and over some cables, plaintiff slipped on the wet foam matting and slid some twenty-seven feet striking a structural portion of the bridge. He suffered injuries as a result.

Plaintiff filed his complaint on August 10, 2001 and named DRPA and various "John Doe" defendants including one described as a "safety consultant." DRPA answered on January 31, 2002. On July 31, plaintiff filed an amended complaint substituting GPI for the "John Doe" safety consultant. GPI, a professional engineering firm, contracted with DRPA to serve as a consultant for the bridge repair and restoration project. Pursuant to that contract, GPI was to "[p]erform all construction inspection tasks relating to the provision of main suspension cables rehabilitation construction inspection services." GPI was also responsible for developing all safety programs associated with the project and assuring compliance with all federal and state safety regulations. Among other things, GPI approved NAB's use of the foam matting outside of the tented area.

Prior to the filing of a responsive pleading, GPI moved to dismiss plaintiff's complaint as time barred. In support of this motion, GPI's representative certified that GPI maintained a trailer at the entrance to the site, was at the project daily, attended weekly progress meetings, and inspected all the work performed by NAB. At the job site, GPI's employees wore shirts and hardhats displaying the company's logo. Thus, GPI argued that its presence at the construction site was conspicuous, and its affiliation with the project readily ascertainable through any reasonably conducted investigation.

The motion judge agreed with GPI, concluding that plaintiff had not diligently pursued the identity of the fictitious defendant and did not move to amend the complaint within a reasonable time after identifying GPI. Therefore, the amended complaint did not relate back to the timely filing of his original complaint. Thus, the claim against GPI was time-barred having been filed more than two years after the date of the accident. We thereafter denied plaintiff's motion for leave to appeal the dismissal.

After discovery was completed, DRPA moved for summary judgment of plaintiff's remaining claim. The motion judge concluded that plaintiff's accident arose out of the very work performed by NAB, an independent contractor. He concluded DRPA had no duty to protect plaintiff from such risks. Dawson v. Bunker Hill Plaza Assocs., 289 N.J. Super. 309, 318 (App. Div.), certif. denied, 146 N.J. 569 (1996).

We first consider the dismissal of plaintiff's amended complaint against GPI. He argues that he acted reasonably and with due diligence to identify GPI as a potential defendant and that he filed his amended complaint in a timely manner thereafter. We disagree.

Plaintiff needed to commence his negligence action within two years of the accident. N.J.S.A. 2A:14-2a. The fictitious party rule provides,

In any action . . . if the defendant's true name is unknown to the plaintiff, process may issue against the defendant under a fictitious name, stating it to be fictitious and adding an appropriate description sufficient for identification. Plaintiff shall on motion, prior to judgment, amend the complaint to state defendant's true name, such motion to be accompanied by an affidavit stating the manner in which that information was obtained.

[R. 4:26-4.]

"The purpose of the rule is to render timely the complaint filed by a diligent plaintiff, who is aware of a cause of action against an identified defendant but does not know the defendant's name." Greczyn v. Colgate-Palmolive, 183 N.J. 5, 11 (2005). However, "[t]he rule will not protect a plaintiff who had ample time to discover the unknown defendant's identity before the running of the statute of limitations," but did not diligently pursue the information or the filing of an amended complaint. Pressler, Current N.J. Court Rules, comment 2 on R. 4:26-4 (2007).

The diligent use of Rule 4:26-4 accords a plaintiff the protection of Rule 4:9-3 which provides,

Whenever the claim . . . asserted in the amended pleading arose out of the conduct, transaction or occurrence set forth . . . in the original pleading, the amendment relates back to the date of the original pleading . . . .

Here, plaintiff did not act diligently in ascertaining the identity of GPI as the fictitious "safety consultant" on the bridge restoration project. Nor, did he act diligently in amending his pleading after learning GPI's identity.

The obligation to diligently investigate and determine the identity of potentially liable parties precedes the filing of the initial complaint. In Cardona v. Data Systems Computer Centre, 261 N.J. Super. 232 (App. Div. 1992), we affirmed the dismissal of the plaintiff's untimely complaint because he failed to exercise due diligence in determining the identity of fictitious defendants.

Plaintiff knew or by the exercise of due diligence could have ascertained the identity of the [defendants] before filing his complaint. The police investigated the accident and prepared a report which revealed the names and addresses of the parties involved. Plaintiff could have obtained a copy of that report and discovered the identity of the [defendants]. However, he and his counsel failed to make this easy and routine inquiry. This failure constituted a lack of due diligence and foreclosed plaintiff from invoking the fictitious name practice.

[Id. at 235 (emphasis added).]

The obligation to exercise due diligence in identifying a fictitious defendant continues after the complaint is filed. "[A] plaintiff must also act with diligence to determine an unknown defendant's identity after properly using Rule 4:26-4 in filing his or her original complaint." Mears v. Sandoz Pharms., Inc., 300 N.J. Super. 622, 630 (App. Div. 1997). Finally, after the plaintiff learns the identity of the fictitious defendant, he must promptly move to amend the complaint. Johnston v. Muhlenberg Reg'l Med. Ctr., 326 N.J. Super. 203, 208 (App. Div. 1999).

Applying these standards to the facts before us, plaintiff failed to exercise the necessary due diligence in this case. GPI was present at the job site everyday and participated with NAB employees in daily and weekly progress meetings. It had a trailer at the site and its employees wore identifying logos on their shirts and hardhats. GPI was integrally involved in the inspection and approval of the very work performed by plaintiff. See Mears, supra, 300 N.J. Super. at 631-32. (Plaintiff did not demonstrate due diligence in failing to identify fictitious general contractor that maintained trailer at job site and participated in meetings.). The public contract between GPI and DRPA was executed in 1997 and clearly identified GPI's role as safety consultant on the project. See P. T. & L. Constr. Co. v. Madigan & Hyland, Inc., 245 N.J. Super. 201, 207-08 (App. Div.), certif. denied, 126 N.J. 330 (1991) (Construction documents and contracts disclosed identity of potential defendant and failure to include that party demonstrated lack of due diligence.).

When DRPA answered in January 2002, it supplied the contract with GPI as well as other documents that clearly identified GPI. Yet, plaintiff did not amend his complaint until July. Plaintiff argues that he lacked a good faith basis to name GPI as a defendant even after learning its identity. He asserts that until he secured an affidavit of merit, see N.J.S.A. 2A:53A-27, from a licensed engineer criticizing GPI's conduct, he could not substitute GPI for the fictitious defendant. For various reasons, he was unable to secure the affidavit prior to July.

This argument is unpersuasive. Plaintiff named a "safety consultant" as one of the fictitious defendants in the original complaint. Therefore, he had already determined that a good faith basis existed to bring that party into the litigation. In addition, an affidavit of merit must be filed within sixty, or, upon motion, within one-hundred and twenty days of the defendant's answer. Ibid. It is not a predicate to the filing of a complaint.

In sum, plaintiff failed to demonstrate due diligence in identifying GPI and amending his complaint to substitute it for the fictitious "safety consultant." By the time the amended complaint was filed, the statute of limitations had run. We thus affirm the motion judge's dismissal of the amended complaint against GPI.

We next consider the grant of summary judgment to DRPA. Plaintiff argues that DRPA had a duty, or assumed a duty, to provide him with a reasonably safe workplace and thereafter breached that duty. He further contends that DRPA retained control over the manner and means by which NAB performed its work at the site. Neither of these arguments is persuasive.

"As a general rule, a landowner has 'a non-delegable duty to use reasonable care to protect invitees against known or reasonably discoverable dangers.'" Rigatti v. Reddy, 318 N.J. Super. 537, 541 (App. Div. 1999) (quoting Kane v. Hartz Mountain Indus.,Inc., 278 N.J. Super. 129, 140 (App.Div. 1994), aff'd, 143 N.J. 141 (1996)). "This general rule operates to protect individuals performing work on the premises of the landowner, most commonly independent contractors and their employees." Ibid. However, a well-recognized exception to the general rule is that "an owner is not responsible for harm which occurs to an employee as a result of the very work which the employee was hired to perform." Dawson, supra, 289 N.J. Super. at 318. This exception will not apply if the landowner maintains control over the manner and means by which the work is performed. Ibid. The owner's general supervisory control of the results of the independent contractor's work, however, does not equate to control of the manner and means for performing the work. Marion v. Pub. Serv. Elec. & Gas Co., 72 N.J. Super. 146, 152 (App. Div. 1962).

Our review of the record reveals that DRPA did not control the manner and means by which NAB performed the work under the contract. Plaintiff testified that the decision to expedite the project and to extend the foam matting outside the tents was made "downstairs." However, the record reveals that NAB and GPI made the decision, not DRPA. Plaintiff asserts that DRPA determined when to release the workers to ascend the bridge on the date of his fall. While the record reveals that DRPA employees were present and inspected the conditions that morning, the order to ascend the bridge was given by plaintiff's foreman.

Plaintiff next argues DRPA assumed control of safety for the site and therefore it is appropriate to extend the duty of providing a safe workplace to DRPA. He relies upon the language of the contracts between DRPA and NAB and GPI. He further relies upon Carvalho v. Toll Bros. & Developers, 143 N.J. 565 (1996) and Alloway v. Bradlees, Inc., 157 N.J. 221 (1999) for support. Neither case is applicable to the facts here.

In Carvalho, the Court considered whether an engineering consultant, hired by the municipal landowner, and contractually responsible for monitoring the progress of the work, had a duty to exercise reasonable care for the safety of employees of an independent subcontractor working at the site. Carvalho, supra, 143 N.J. at 569. The Court concluded that imposing such a duty upon the consultant was fair and reasonable because, "[T]he engineer had the opportunity and was in a position to foresee and discover the risk of harm and to exercise reasonable care to avert any harm." Id. at 578.

In Alloway, the Court noted that a prime contractor was liable for violations of OSHA regulations committed by its subcontractor and these violations could be evidence of negligence on the part of the prime contractor. Alloway, supra, 157 N.J. at 238, 240. The Court concluded that under certain circumstances a prime contractor may owe a legal duty to provide a reasonably safe workplace and safe equipment to an employee of its subcontractor. Id. at 240.

Both Carvalho and Alloway extended the duty of care by applying general negligence principles that considered the relationship between the parties, the foreseeability of the harm and public policy. "[T]he foreseeability of the risk of injury, the relationship of the parties, and the opportunity to take corrective measures, would support the determination that there was a duty of care owed to plaintiff that was breached by defendant." Alloway, supra, 157 N.J. at 240. See also Carvalho, supra, 143 N.J. at 577-78 (fairness and public policy require imposing a duty on engineer in a position to foresee and avert harm). Plaintiff argues that in this case, as in Carvalho and Alloway, it is reasonable to extend the duty to maintain a safe workplace to DRPA. We disagree.

First, neither Carvalho nor Alloway involved an analysis of the duty owed by a landowner to employees of an independent contractor performing work on the premises. Plaintiff would have us ignore the longstanding principles that govern the legal relationships of the parties in such circumstances. Second, there is nothing in the language of the contracts between DRPA and NAB or GPI that remotely indicated DRPA assumed responsibility for the safety of its contractors' employees. While the contracts permitted DRPA to inspect the work performed by NAB and GPI and audit their procedures, it was NAB and GPI that undertook affirmative obligations to ensure that the work was performed in a safe manner and in compliance with all standards. In Dawson, supra, we noted,

Bunker Hill, as landowner, plainly did not owe a duty to plaintiffs, as employees of an independent contractor, to prevent injury from a risk which was incident to the very task they were hired to perform, and therefore is not liable to plaintiffs for the injuries they sustained in this accident.

Bunker Hill was entitled to rely upon and assume that Glendale Builders and its subcontractor, I & B Builders, had sufficient skills to safely erect roof trusses and take the steps necessary to protect their own employees from the risks incident to the work they performed.

[289 N.J. Super. at 319.]

In this case, DRPA was entitled to rely upon the assurances made by its contractor and safety consultant that they could safely perform their contractual undertakings. We find nothing in the contracts between the parties that would indicate DRPA assumed a general duty for the safety of the employees of its contractors working at the construction site.

Affirmed.

 

Because GPI's motion to dismiss was filed in lieu of an answer, no discovery took place before the dismissal was granted.

Plaintiff argues our holding in Murphy v. New Road Construction, 378 N.J. Super. 238 (App. Div.), certif. denied, 185 N.J. 391 (2005), decided after his motion for leave to appeal, changed prior law. Because GPI acted outside the scope of its engineering license, he no longer needed to obtain the affidavit of merit. We fail to see the significance of the argument since we disagree with the initial premise that plaintiff needed to secure an affidavit of merit prior to filing the amended complaint.

(continued)

(continued)

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A-3778-04T1

November 30, 2006