MARTHA ORBE v. THE MANITOWIC COMPANY INC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

MARTHA ORBE, ADMINISTRATRIX AD

PROSEQUENDUM OF THE ESTATE OF

AMADO GUILLERMO ORBE, deceased,

Plaintiff-Appellant,

v.

THE MANITOWIC COMPANY, INC.;

MANITOWIC CRANE GROUP d/b/a

GROVE; GAR EQUIPMENT CORPORATION;

SAFER TEXTILE PROCESSING

CORP.; 1825 MCCARTER HIGHWAY

CORP.; and SAFER PIGMENT

CORP.,1

Defendants,

and

SAFER HOLDING CORP.

Defendant-Respondent.

____________________________________

August 18, 2014

Argued March 12, 2014 - Decided

Before Judges Sapp-Peterson, Lihotz and Maven.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-5073-08.

Ernest P. Fronzuto argued the cause for appellant (Fronzuto Law Group, attorneys; Mr. Fronzuto and Casey Anne Cordes, on the briefs).

Thomas M. Mulcahy and Philip D. Neuer argued the cause for respondent (Purcell, Mulcahy, Hawkins, Flanagan & Lawless, LLC, and Law Offices of Philip D. Neuer, attorneys; Mr. Mulcahy, of counsel and on the brief; Mr. Mr. Neuer and Danielle H. Bohlen, on the brief).

PER CURIAM

In this appeal, plaintiff, on behalf of the estate of her late husband, Amado Guillermo Orbe,2 challenges the trial court order granting summary judgment to defendant Safer Holding Corp. (Safer). Safer was the landlord from whom Orbe's employer, a subsidiary of Safer, leased the building where Orbe sustained his fatal, work-related injuries while utilizing a manlift. In a previous unpublished opinion in this matter, we addressed the exclusivity provisions of the Worker's Compensation Act, N.J.S.A. 34:15 1 to 128 ("Act"), and plaintiff's Laidlow3 claims asserted against Safer and its subsidiaries: Kuttner Prints (Kuttner), Meadows Knitting (Meadows), Safer Pigment, and Safer Textile. Orbe v. The Manitowic Co., Inc., No. A-5614-10 (App. Div. March 8, 2012) (Orbe I). We found the claims asserted against defendants, with the exception of Safer, were barred by the exclusivity provisions of the Act because the facts, even when viewed most favorably to plaintiff, failed to establish a prima facie case of an intentional wrong sufficient to justify an exception to the Act's narrowly construed exclusivity provisions. Orbe I, supra, slip op. at 4. Moreover, we found the Act's exclusivity provisions extended to the Safer entities because Orbe was a joint employee of those subsidiaries. Id. at 3.

As to Safer, however, we determined it could not invoke the Act's exclusivity provisions. Id. at 24. We found that Safer "served merely as a holding company with no employees or any other indicia of an employer and employee relationship." Id. at 2. Thus, we concluded Safer could not avail itself of the Act's exclusivity provisions. Id. at 21-22. We therefore vacated the grant of summary judgment in favor of Safer, dismissing plaintiff's intentional tort and punitive damages claims. Id. at 34.

On remand, Safer and GAR, the company from whom Orbe's employer is alleged to have purchased the manlift, in which he sustained the fatal injuries, moved for summary judgment. The court denied the motion as to GAR, finding there were genuinely disputed issues of fact as to its liability, but granted the motion as to Safer. In so doing, the motion judge found there was no independent basis upon which to impose liability against Safer under a premises liability theory and there was also no basis upon which to pierce the corporate veil. The judge agreed that the occurrence of the tragic accident on defendant's leased premises was insufficient to establish liability. The court denied plaintiff's motion for reconsideration. Plaintiff settled the estate's claims against GAR and subsequently filed a stipulation of dismissal. The present appeal followed.

On appeal, plaintiff contends, in granting summary judgment to Safer, the court failed to recognize the viability of the estate's direct claim against Safer, premised upon its negligence, as the "triple net leaseholder of the property where Mr. Orbe was fatally injured." In addition, plaintiff urges the court erred when it held that "no cause of action exists against Safer Holding, the parent company, in light of its subsidiaries' immunity." Finally, plaintiff contends that in granting summary judgment to Safer, the court failed to view the evidence in favor of plaintiff and overlooked the clear dispute of facts and precedent precluding summary judgment for Safer as to its vicarious liability.

Our review of the trial court's grant of summary judgment is de novo, analyzing the evidence under the Brill standard. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540(1995); Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366, 378 (1995). Giving plaintiff the benefit of all favorable inferences, as Brill requires, there is no evidence in the record that there was any causal relationship between the accident and the fact that Safer was the landlord of the premises where Orbe sustained his fatal injuries. As the record discloses, Orbe's injuries did not arise as a result of any condition of the property being leased by his employer. Rather, the evidence revealed the injuries resulted from the condition or manner in which Orbe operated a manlift. Accordingly, we affirm.

Although there were no witnesses to the fatal accident, Orbe's co-worker, Gilberto Martinez, revealed in his deposition that prior to the accident, the two men had been using the manlift to remove piping. Martinez had been assisting Orbe until he was called away to repair a machine in another part of the building. Another co-worker, Juan Perez, saw Orbe hunched over the manlift and his tools were on the floor. He imagined "something bad was happening" and called for help. Orbe was transported to the hospital and pronounced dead upon arrival. The medical examiner concluded that Orbe's death was caused by "asphyxia and blunt impact injuries due to compression of the trunk."

One day after the accident, the United States Department of Labor Occupational Safety and Health Administration (OSHA) conducted an inspection of the site and the manlift Orbe had been operating the morning of his death. OSHA issued a report stating that the manlift was in normal operating condition. It was also determined that the manlift operated in accordance with the manufacturer's specifications. OSHA did not issue a citation and opined that

the accident was caused by the victim inadvertently raising the platform or attempting to gain a few more inches to enable him to reach the coupling on the conduit. This caused him to be crushed between the sprinkle pipe and the guardrail on the man lift. I operated the lift and the controls worked as they should.

Since there were no witnesses to the accident, the OSHA report also noted that Orbe "apparently started to raise the platform either intentionally or unintentionally with his left hand on the control and was leaning over the guard rail with the pliers or screwdriver in his right hand and as the platform was raised[,]" Orbe was crushed "between the platform guard rail and the pipe . . . ."

Eric Fidler, a representative of manufacturer Grove, inspected the subject manlift on December 10, 2007. He issued a letter indicating that his inspection revealed:

The upper control box did not function correctly. Function tests indicated that the control box wiring had been altered to allow the following:

The controller activation overrides the enable circuit for all operating modes.

The platform was permitted to lower even when the emergency stop button was activated.

There was damage to the electrical cable entering into the upper control box.

The handle for the emergency lowering system was missing.

There was damage to an electrical plug on the left side at the base of the unit.

There was a gauge/cover missing from the face of the battery charging unit.

The Operator's and Safety Handbook and EMI safety manual were not located in the manual container in the platform of the unit.

Several of the decals were damaged or not legible and need [sic] replaced.

There were bumpers added to both the front and rear of the unit. These ned to be evaluated to ensure that they do not affect the safe operation of the unit.

The manufacturer's identification plate was missing from the unit.

Plaintiff's engineering expert, Thomas Cocchiola, P.E., C.S.P., conducted two inspections of the manlift and authored a report in which he confirmed Fidler's findings that the enable circuit had been altered and was not in conformance with the original design. He also noted that "[a]ctivating the control lever causes the self-propelled elevating work platform to operate whether or not the enable pushbutton switch is pressed." During one of his inspections, he discovered that "[a] jumper wire was spliced between two existing control wires to circumvent the enable pushbutton circuit." He explained "[t]he jumper wire modification allow[ed] inadvertent contact with the control lever to raise the platform." He concluded Orbe could not have "been intentionally pulling the control lever while he was being crushed." Cocchiola also stated in his report that "[t]here are no documents indicating when the jumper wire was installed to defeat the enable switch circuit. Nor is there any information identifying who installed the jumper wire."

Robert Winning, the maintenance manager for Safer's subsidiary, Safer Textile, but who was also responsible for maintenance issues at all of area subsidiaries of Safer, was deposed during discovery. He testified that he was responsible for making sure the manlifts operated correctly, and was unaware, at the time of the accident, whether the manlifts were operating correctly. He also indicated that the facilities would shut down twice a year to repair and overhaul the equipment. However, he stated there were no records of the maintenance or repairs performed during those shutdown periods.

Safer's Chief Financial Officer Richard Wachsman submitted a certification in support of Safer's summary judgment motion in which he certified "the subject Manlift involved in the Orbe accident has always been owned from the date of its purchase by one of the Safer entities doing business from the Newark, New Jersey location." He also certified that "[b]y the time of the accident, Safer Prints, Inc. had become Safer Textile Processing Corp.[,] which was the title record holder for the subject manlift involved in Mr. Orbe s accident." He stated that equipment used by the maintenance department was used for the maintenance of all the Safer entities.

Plaintiff's theory of liability against Safer is premised upon its status as the tenant to a triple net lease. Under a triple net lease, a commercial tenant is responsible for "maintaining the premises and for paying all utilities, taxes, and other charges associated with the property." N.J. Indus. Properties v. Y.C. & V.L., Inc., 100 N.J. 432, 434 (1985). During oral argument before the motion judge, plaintiff's counsel argued "the fact that they're the tenant to this triple net lease and were responsible for all safety of personnel, equipment and otherwise being conducted on the property at the time of this accident[,]" established an independent basis for liability.

The establishment of a duty in tort liability is a question of law. Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439 (1993); see also Kelly v. Gwinnell, 96 N.J. 538, 552 (1984). The jury then determines whether that duty was breached. Monaco v. Hartz Mountain Corp., 178 N.J. 401, 419 (2004). Whether a landowner owes a duty of reasonable care toward someone lawfully on the premises "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." Hopkins, supra, 132 N.J. at 439. This determination requires the balancing of several factors, such as "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." Ibid. As such, the duty is "to guard against any dangerous conditions on [the] property that the owner either knows about or should have discovered[,] . . . [and] to conduct reasonable inspection to discover latent dangerous conditions." Id. at 434. In instances where a lease delegates maintenance duties, like triple net leases, the tenant inherits the duty for premises liability purposes. See Geringer v. Hartz Mountain Dev. Corp., 388 N.J. Super. 392, 400 (App. Div. 2006).

"Premises," as defined by Black's law Dictionary, is "[a] house or building, along with its grounds." Black's Law Dictionary 1199 (7th ed. 1999). Where the theory of premises liability is applicable, the duty is applied to defects that are a part of the building or dwelling, such as stairs, the floor, or ceiling; this theory of liability has not been extended to objects, machinery, or products within the building that are not affixed. See, e.g., McCalla v. Harnischfeger Corp., 215 N.J. Super. 160, 167 (App. Div. 1987) (noting that chattel, which is "permanently essential" to the "completeness of a structure," and taking into account the character of the structure and the functioning of the chattel, "it becomes, in our opinion, a part of the realty"); see also, GMC v. City of Linden, 150 N.J. 522, 534 (1997)(holding that in the context of tax assessments of real property, business personal property owned by the tenants became taxable fixtures of the premises when affixed to and intended to become part of the realty).

Orbe was not injured as a result of unsafe premises. See Geringer, supra, 388 N.J. Super. at 400-01 (holding that a tenant to a triple net lease is liable for negligent maintenance). Plaintiff offers no case law to support imposing liability upon a commercial tenant whose premises is not defective or dangerous. Further, the manlift Orbe was using was not a fixture affixed to the property.

Safer bore no supervisory relationship over its subsidiaries and the nature of the risk to which Orbe was exposed arose in the context of the very work he was performing at the time with the equipment he was utilizing. Hopkins, supra, 132 N.J. at 439. Because Safer had no role in the manner in which Orbe performed his duties or the tools or equipment he utilized to perform his work, there was no ability, on the part of Safer, to ensure that Orbe exercised care in the manner in which he performed his duties. Ibid. In short, imposing liability upon Safer under these circumstances would be contrary to "an abiding sense of basic fairness under all of the circumstances in light of considerations of public policy." Ibid.

Additionally, liability may not be imposed upon Safer for Orbe's injuries premised upon the basic theory of negligence. Broadly speaking, to recover on a negligence claim, a plaintiff must prove that the defendant (1) owed the plaintiff a duty, (2) breached that duty, and (3) the breach of the duty proximately caused the plaintiff's injury. Brown v. Racquet Club of Bricktown, 95 N.J. 280, 288 (1984). Simply showing the occurrence of an incident causing the injury sued upon is not alone sufficient to support a finding of an incident of negligence. Long v. Landy, 35 N.J. 44, 54 (1961). "Negligence is a fact which must be shown and which will not be presumed." Ibid. "In an ordinary negligence case, the plaintiff bears the burden of showing the unreasonableness of the defendant's conduct (in other words, the defendant's breach of a duty owed)." Feldman v. Lederle Lab., 132 N.J. 339, 349-50 (1993). A defendant's actions also must be the proximate cause of the injury suffered by the plaintiff. Dziedzic v. St. John's Cleaners & Shirt Launderers, Inc., 53 N.J. 157, 161 (1969).

Safer owed a duty, as a tenant, to maintain the premises in a safe condition; however, there is no evidence that the duty was breached. There is no evidence Orbe sustained his injuries as a result of a dangerous condition of the premises. Rather, Orbe was injured while using a moveable manlift in the course of his employment. Orbe's accident alone is insufficient to establish negligence on behalf of Safer. See Long, supra, 35 N.J. at 54.

Moreover, because Safer was not an employee or otherwise held a special employment relationship with Orbe, it owed no duty of care to Orbe arising out of an employee/employer relationship. As we determined in Orbe I, Safer did not have any named employees or equipment, did not pay Orbe, "did not supervise Orbe's work, nor did it have the power to hire or fire Orbe or his supervisors, Winning and Martinez." Orbe I, supra, slip op. at 22. Thus, without a duty, there can be no breach. See McKinley v. Slenderella Sys. of Camden, N.J., Inc., 63 N.J. Super. 571, 582 (App. Div. 1969) (finding in the absence of duty, there can be no breach).

When the evidence supporting summary judgment is "'so one-sided that only one party must prevail as a matter of law,'" we must affirm the grant of summary judgment. Brill, supra, 142 N.J. at 540. Such are the undisputed facts here, namely, plaintiff failed to establish an independent basis for liability, including a claim based upon premises liability. Consequently, defendant was entitled to summary judgment as a matter of law. Ibid.

Finally, plaintiff contends the trial court erred when it held that Safer had no liability in light of the immunity afforded its subsidiaries under the Act. The court did not make such a ruling. Thus, the argument is without merit. The record reflects plaintiff's counsel argued that if the court were to accept defense counsel's argument, "then a parent can never be held responsible for the actions of its subsidiary." The court disagreed with that characterization of defense counsel's argument, stating: "No, I don't agree with that statement, because he's saying that a parent can't be held responsible for an underlying company if the underlying company has no liability, which they don't. They're Worker's Comp." As noted, summary judgment was properly granted to defendant by the court based upon its conclusion, as a matter of law, there was no independent basis upon which to impose liability against Safer.

Affirmed.

1 The Manitowic Company, Inc., Manitowic Crane Group d/b/a Grove, and GAR Equipment Corporation (GAR) were voluntarily dismissed from the case. Safer Textile Processing Corp. was granted summary judgment, which decision was upheld by the Appellate Division. 1825 McCarter Highway Corp. and Safer Pigment Corp. were granted summary judgment based upon a "triple net lease agreement" with Safer Holding Corp.

2 Throughout this opinion, reference to Orbe refers to the decedent, while reference to plaintiff refers to the Martha Orbe, on behalf of Orbe's estate.

3 Laidlow v. Hariton Mach. Co., 170 N.J. 602 (2002).