Kiara K. Hartwell

The Appellate Division affirmed the dismissal of the plaintiff’s complaint via summary judgment filed by the defendants, Hartz Metro Fee II, LLC (warehouse owner) and N.Y. Mutual Trading, Inc. (tenant and “special employer”). In late August 2016, the plaintiff was working at New York Mutual’s warehouse, employed by a temporary staffing agency. He worked from noon to 8 p.m., loading and unloading container trucks. After punching in, he would report to his supervisor, a New York Mutual employee, who would provide him with his daily assignment. The staffing agency would use the timecards to bill New York Mutual and then pay the employees their wages. There was no dispute that New York Mutual could ask that an employee not be sent to their warehouse if they were unhappy with his/her performance.

While working, the plaintiff slipped and fell, noting the ramp where he fell was badly lit and rain had made it slippery. The plaintiff’s engineer expert opined that the lack of handrails and non-slip surface made its use unsafe. Although there were stairs with handrails next to the ramp, the plaintiff testified that most workers regularly used the ramp. He noted he had done so in the past, even in heavier rain, and consciously used the ramp the evening of the accident. The plaintiff received workers’ compensation benefits from the agency as there was no dispute his injury was work-related.

After discovery, the defendants filed a motion for summary judgment. After arguments, the judge found they were entitled to summary judgment. Specifically for Hartz, the judge noted there was no “landlord liability” in the case of a commercial tenant’s employee’s injuries where the lease places responsibility of maintenance on the tenant, relying on Geringer v. Hartz Mountain Dev. Corp., 388 N.J. Super. 392 (App. Div. 2006). The judge indicated Hartz’s lease with New York Mutual clearly assigned responsibility for maintenance on New York Mutual.

The judge rejected the plaintiff’s argument that a commercial landlord that reserved authority to approve design and construction should be responsible for the movable ramp because neither defendant had any hand in the design or construction of said ramp. The plaintiff’s argument that there was an issue of fact as to whether the loading dock/ramp was in a common area was also rejected as the lease specifically omitted this area from the definition of common area.

As for New York Mutual, the judge found the plaintiff was New York Mutual’s special employee under the five-pronged test established in Kelly v. Geriatric & Med. Servs., Inc., 287 N.J. Super. 567 (App. Div. 1996). This test analyzed whether: (1) there was a contract of hire; (2) the work done was essentially that of the special employer; (3) the special employer had the right to control the details of the work; (4) the special employer paid the wages; and (5) the special employer had the right to hire, discharge or recall the employee. In applying this test, the judge found the undisputed facts established an implied employment relationship, thus barring the negligence claim under the Workers’ Compensation Act.

The plaintiff appealed, arguing the lease was “not a true triple-net lease”; that Hartz violated the lease by negligently permitting New York Mutual to install a defective ramp and failed to take reasonable steps to remove the hazard; that New York Mutual was not his special employer and, even if it was, New York Mutual placed him in a situation that was substantially certain to cause him injuries; and, finally, that the judge erred in failing to consider that a wet surface was a de facto dangerous condition that was foreseeable and unreasonable.

The Appellate Division noted, none of these required extended discussion. It was noted the motion record established beyond any doubt that the ramp was neither designed nor constructed by either defendant and the lease language relieved Hartz of any responsibility. The Appellate Division also noted it was undisputed the plaintiff was a special employee. Finally, the Appellate Division mentioned the intentional wrong exception was not argued in trial court and indicated the fact that the plaintiff was “forced” to walk was not flagrant enough to constitute an intentional wrong, especially a ramp that he used regularly.
 

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