CARLOS MELLO v. WASEEM ENTERPRISES LLC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

CARLOS MELLO,

Plaintiff-Appellant,

v.

WASEEM ENTERPRISES, LLC, WASEEM

CHAUDHARY, L&L PROPERTY ENTERPRISES,

LLC, VIJAYPAL SINGH SARKARIA,

SILVIO de MELO, and S. MELO CONSTRUCTION

INCORPORATION,

Defendants-Respondents.

_____________________________________________

WASEEM ENTERPRISES, LLC, WASEEM

CHAUDHARY, L&L PROPERTY ENTERPRISES,

LLC, VIJAYPAL SINGH SARKARIA,

SILVIO de MELO, and S. MELO CONSTRUCTION

INCORPORATION1,

Third-Party Plaintiffs,

v.

C.K. CONSTRUCTION,

Third-Party Defendant.

_____________________________________________

July 29, 2016

 

Argued December 2, 2015 Decided

Before Judges Fuentes, Koblitz and Gilson.

On appeal from Superior Court of New Jersey, Law Division, Union County, Docket No. L-292-12.

Lawrence W. Luttrell argued the cause for appellant.

Stephanie A. Martin argued the cause for respondent (Farber Brocks & Zane, L.L.P., attorneys; David J. Bloch, on the brief).

PER CURIAM

This civil action arises from a construction worksite accident. Plaintiff was seriously injured when he fell from a six-foot "A-frame" stepladder.2 After joinder of issue and conducting discovery, which included taking plaintiff's deposition, defendants Waseem Enterprises, LLC, Wasseem Chaudhary, L&L Property Enterprises, LLC, Vijaypal Singh Sarkaria, Silvo De Melo, and S. Melo Construction Incorporation collectively moved for summary judgment. After hearing the arguments of counsel, Judge Kenneth J. Grispin granted defendants' motions for summary judgment and dismissed plaintiff's complaint as a matter of law. We affirm.

The following facts are not disputed. The accident occurred on January 23, 2010. Plaintiff was employed by U.S. Property Management as a mason. He was part of a five-man crew working at a Shell gasoline station on Route 22 in Union Township. He had been working at this location for approximately one week. On the day of the accident plaintiff was installing Tyvek material with another worker. An employee of the gasoline station gave plaintiff a metal, six-foot A-frame ladder for him to complete installing the second course of Tyvek.

As plaintiff described it in his deposition, his job consisted of cutting the Tyvek which came in 200 foot rolls, forty-eight inches wide. Tyvek is "like . . . a thin plastic sheet." At the time of the accident, plaintiff was standing on "the third rung up from the ground . . . around three feet." Plaintiff gave the following description of his activity immediately before the accident occurred

Q. And as you walked up that first rung of the ladder, was the ladder stable to you?

A. Yeah, stable.

. . . .

Q. And at the second rung, was the ladder stable?

A. Yes.

. . . .

Q. And are you standing at this point on the third rung of the ladder?

A. Yes.

Q. Is the ladder stable at that point?

A. Yes.

Although the surface upon which the ladder rested was "[l]ike, sidewalk concrete," plaintiff also testified that the area around the ladder was "dirty . . . [with] little pieces of gravel [and] concrete." However, plaintiff also conceded he positioned the ladder. As the following testimony illustrates, plaintiff was not only in control of where to place the ladder, he tested its stability before ascending to ensure it was secured.

Q. When you opened the A-frame ladder and placed it next to the door frame of the building, did you test the ladder to see that it was stable?

A. Yes.

Q. Was the ladder stable?

A. Yes.

Q. When you tested the ladder and found it to be stable, did the ladder wobble?

A. I don't know. I don't understand exactly what you mean?3

Q. When you tested the ladder to see if it was stable, was the ladder secure on the ground?

A. Well, it's [a] light ladder, came over easy. It was stable, can say stable, it was light.

Q. When you tested the ladder and found it to be stable, were you satisfied that the A-frame ladder was secured?

A. It was alright.

Q. And it was secure for you to use; correct?

A. Yes, yes.

As Judge Grispin emphasized in his decision granting defendants' motions for summary judgment, plaintiff candidly admitted in the course of his deposition that he did not know what caused him to fall off the ladder.

Q. From the time you tested the ladder and you found it to be stable and secure to use, what changed that, caused it to be shifting and causing you to fall, what changed that, caused that ladder to be unstable and cause you to fall?

A. I don't know.

In granting defendants' summary judgment motions, Judge Grispin held that plaintiff had not established the basic elements of a negligence cause of action. Plaintiff failed to produce any evidence defendants had a duty to maintain the construction site free from all debris. Even assuming defendants had such a duty, plaintiff did not present any evidence that any alleged debris on the ground was a proximate cause of plaintiff's accident.

On appeal, "[w]e review the grant of summary judgment 'in accordance with the same standard as the motion judge.'" Globe Motor Co. v. Igdalev, ____ N.J. ____, ____ (2016) (slip op. at 10) (quoting Bhagat v. Bhagat, 217 N.J. 22, 38 (2014)). We must affirm the grant of summary judgment "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." Id. at 11.

Sixty-five years ago, our Supreme Court articulated the fundamental principles of a cause of action based on a claim of negligence.

[T]he mere showing of an accident causing the injuries sued upon is not alone sufficient to authorize an inference of negligence; negligence is a fact which must be shown; it will not be presumed. Indeed there is a presumption against it and the burden of proving the charge of negligence contained in the complaint is upon the plaintiff and must be sustained by proof of circumstances from which defendant's want of due care is a legitimate inference. It is a substantial right of defendant that plaintiff be required to bear this burden.

[Hansen v. Eagle-Picher Lead Co., 8 N.J. 133, 139-40 (1951) (citing McKinney v. Pub. Serv. Interstate Transp. Co., 4 N.J. 229, 241 (1950)).]

These principles remain legally binding on this court. To survive a motion for summary judgment, a plaintiff must present sufficient evidence to establish a prima facie case of negligence. "To establish a prima facie case of negligence, a plaintiff must establish the following elements: (1) duty of care, (2) breach of that duty, (3) proximate cause, and (4) damages." D'Alessandro v. Hartzel, 422 N.J. Super. 575, 579 (App. Div. 2011) (citing Conklin v. Hannoch Weisman, 145 N.J. 395, 417 (1996)).

The evidence presented by plaintiff did not establish a prima facie case of negligence. At the time of the accident plaintiff was working on a construction site as an employee of an independent contractor. He had complete control over where to place the ladder. Based on plaintiff's deposition testimony, the ladder was not defective at the time of the accident, nor does he know what caused him to fall from the ladder.

Plaintiff also argues that Judge Grispin erred by: (1) dismissing his negligence claim based on spoliation, premised on defendants' failure to preserve the ladder: and (2) dismissing his claim against his employer for failing to maintain workers' compensation insurance coverage. We decline to address these issues because plaintiff did not oppose these aspects of defendants' motion for summary judgment before Judge Grispin. As the Supreme Court has recently reaffirmed: "sound jurisprudential reasons, with few exceptions," favor that "appellate courts . . . decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available." State v. Witt, 223 N.J. 409, 419 (2015) (quoting State v. Robinson, 200 N.J. 1, 20 (2009)).

Finally, plaintiff's argument claiming Judge Grispin abused his discretion in declining to extend the discovery end date lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). In the interest of clarity, we note that discovery ended on April 1, 2014. The matter was thereafter scheduled for mandatory arbitration on July 17, 2014. Plaintiff did not move to extend the discovery end date until May 16, 2014, after defendants filed their motions for summary judgment. "No extension of the discovery period may be permitted after an arbitration or trial date is fixed, unless exceptional circumstances are shown." R. 4:24-1(c). The record before us is devoid of any evidence showing plaintiff met this standard.

Affirmed.

1 "Melo Construction Incorporation" is the actual registered name of this defendant.

2 Plaintiff fractured his tibia, fibula, tore his meniscus, and injured his right shoulder.

3 English is not plaintiff's first language; he is a Brazilian national who came to the United States in 1988. He was fifty years old at the time of the accident.