JOSEPHINE NEHER VS. EARL C. HOPKINS VS. TARON SMITH, ETAL. (L-4871-15, CAMDEN COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4518-17T4
JOSEPHINE NEHER, SHAVONNE
BURNETT and LAURA SIMMONS,
Plaintiffs-Appellants,
v.
EARL C. HOPKINS,
Defendant/Third-Party Plaintiff,
and
GANNETT COMPANY, INC.,
d/b/a THE COURIER-POST,
Defendant-Respondent,
v.
TARON SMITH and COLLEEN
M. COOK,
Third-Party Defendants.
_______________________________
Submitted August 13, 2019 – Decided August 22, 2019
Before Judges Sumners and Moynihan.
On appeal from the Superior Court of New Jersey, Law
Division, Camden County, Docket No. L-4871-15.
Peter J. Mc Namara, attorney for appellants.
Rudolph & Kayal, PA, attorneys for respondent
(Stephen A. Rudolph, on the brief).
PER CURIAM
Plaintiffs Josephine Neher, Shavonne Burnett and Laura Simmons appeal
from the trial court's order granting summary judgment to defendant Gannett
Company, Inc., doing business as (d/b/a) The Courier-Post (defendant),1 and
dismissing plaintiffs' complaint with prejudice. Plaintiffs argue the trial court
erred by ruling that defendant was not vicariously liable to plaintiffs because
Earl C. Hopkins – who, while delivering the Courier-Post newspaper, allegedly
collided with the vehicle in which plaintiffs were passengers, causing them
personal injury and resulting "financial losses, pain and suffering" and other
damages – was an independent contractor of defendant, not its employee.
Reviewing the trial court's grant of summary judgment de novo, applying the
same standard governing the trial court under Rule 4:46-2(c), Brill v. Guardian
1
We utilize the most common name used for defendant in the order granting
summary judgment. We note defendant refers to itself as Gannett Satellite
Information Network, LLC d/b/a Courier-Post in its submissions to this court
and the Law Division. It is not apparent from the record that a motion to amend
defendant's name was made or granted. See R. 4:9-3.
A-4518-17T4
2
Life Ins. Co. of Am., 142 N.J. 520, 539-40 (1995), and "consider[ing] 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," id. at
540; see also R. 4:46-2(c), we affirm.
"Although as a general rule of tort law, liability must be based on personal
fault, the doctrine of respondeat superior recognizes a vicarious liability
principle pursuant to which a master will be held liable in certain cases for the
wrongful acts of his servants or employees." Carter v. Reynolds, 175 N.J. 402,
408 (2003). "Under respondeat superior, an employer can be found liable for
the negligence of an employee causing injuries to third parties, if, at the time of
the occurrence, the employee was acting within the scope of his or her
employment." Id. at 408-09. An employer is liable if an employer-employee
relationship existed and the employee's tortious act "occurred within the scope
of that employment." Id. at 409.
In contrast, "[o]rdinarily, an employer that hires an independent contractor
is not liable for the negligent acts of the contractor in the performance of the
contract." Bahrle v. Exxon Corp., 145 N.J. 144, 156 (1996). Vicarious
"[l]iability may be imputed to a principal for the actions of independent
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3
contractors . . . where the principal retains control of the manner and means of
doing the work that is the subject of the contract."2 Basil v. Wolf, 193 N.J. 38,
63 (2007).
"In such a case the employer is responsible for the
negligence of the independent contractor even though
the particular control exercised and its manner of
exercise had no causal relationship with the hazard that
led to the injury, [3] just as in the case of a simple
employer-employee situation." Under that test, the
reservation of control over the equipment to be used,
the manner or method of doing the work, or direction
of the employees of the independent contractor may
permit vicarious liability.
[Mavrikidis v. Petullo, 153 N.J. 117, 135 (1998)
(citation omitted) (quoting Bergquist v. Penterman, 46
N.J. Super. 74, 85 (App. Div. 1957)).]
2
Liability may also be imputed in situations not here in issue: "where the
principal engages an incompetent contractor; or . . . where the activity
constitutes a nuisance per se." Wolf, 193 N.J. at 62.
3
Defendant argues in Point II of its merits brief that the trial court's grant of
summary judgment should be affirmed because there is no evidence that it acted
negligently or was the proximate cause of the accident in which plaintiffs were
injured. That issue was not raised to the trial court and we will not consider it .
Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (holding appellate
courts "will decline to consider questions or issues not properly presented to the
trial court when an opportunity for such a presentation is available").
A-4518-17T4
4
Plaintiffs contend Hopkins, who delivered the Courier-Post pursuant to an
"Independent Contractor Agreement Delivery Service" (the Agreement) with
defendant,4 was defendant's employee because it retained control over Hopkins's
work. Specifically, plaintiffs argue Hopkins: was required to deliver the
Courier-Post "in a certain order" and "by a certain time" specified by defendant;
was "subject to significant fines if he [did] not show up to work on a particular
day"; could "not be terminated without cause," and would be paid "one month[']s
pay if [defendant] wanted to terminate the Agreement"; and would be paid
additional compensation for every subscription that originated from his
solicitation.
We perceive defendant exercised only "a general power to supervise
[defendant's] work," to ensure the newspapers were delivered in a timely
manner. Marion v. Pub. Serv. Elec. & Gas Co., 72 N.J. Super. 146, 153 (App.
Div. 1962). Because "the supervision related only to the results and not to the
method of doing the work," defendant was not vicariously liable for plaintiffs'
damages. Ibid. (quoting Trecartin v. Mahony-Troast Const. Co., 18 N.J. Super.
380, 386-87 (App. Div. 1952)).
4
The "Company" with which Hopkins contracted is "Courier-Post," the
appellation handwritten in the agreement.
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The Agreement, the terms of which we review de novo, Kieffer v. Best
Buy, 205 N.J. 213, 222-23 (2011), provided that Hopkins had a daily 6:00 a.m.
deadline, except for a 7:00 a.m. Sunday deadline, for delivery of the newspaper
"in consideration of its perishable nature." It also provided that defendant was
to provide Hopkins with a "Delivery List" "of [l]ocations in the [d]elivery [a]rea
that have requested service for delivery" of the newspaper but "[t]he Delivery
List is not in an order of requested or required delivery but may include the
transmittal of requests or complaints from a subscriber or [l]ocation relat ing to
delivery service." As such, defendant did not control Hopkins's mode or method
of delivery.
Although plaintiffs contend their argument that defendant controlled
Hopkins's delivery is supported by one sentence in Hopkins's deposition
testimony – in which he responded affirmatively to the question, "And on that
route sheet, does it tell you what house should be delivered first and what order
you should go in?" – they do not clarify how Hopkins's view reconciled with the
Agreement's terms, particularly those dealing with customer complaints which
may have altered the order of delivery. Further, Hopkins deposed that additions
and deletions from his route would be reflected in additional computer printout
sheets that were provided with his daily stacks of papers and which he used to
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6
update the route sheet. Common sense dictates that delivery to added
subscribers would follow Hopkins's route and that delivery would not occur at
the end of his route simply because the new customer's sheet was added to the
end of the route sheet. And that single answer does not present a sufficient
disputed fact that would defeat summary judgment. See Gilhooley v. Cty. of
Union, 164 N.J. 533, 545 (2000) (holding when the evidence is utterly one-sided,
a judge may decide that a party should prevail as a matter of law).
Moreover, the nature of the relationship between Hopkins and defendant
supports the conclusion that Hopkins was an independent contractor. The self-
titled "Independent Contractor Agreement" specifically provided:
"CONTRACTOR ACKNOWLEDGES THAT CONTRACTOR IS AN
INDEPENDENTLY ESTABLISHED BUSINESS AND FULLY AND FREELY
INTENDS TO CREATE AN INDEPENDENT CONTRACTOR
RELATIONSHIP WITH [DEFENDANT] UNDER THIS AGREEMENT" and
paragraph 3 of the Agreement expounded:
3. Independent Contractor. Contractor and Company
intend and agree that Contractor will be acting under
[the] Agreement as an independent contractor.
a) Not an employee. Contractor is not an
employee of Company. Under no circumstances
will Contractor, or anyone performing the
Contractor's obligations under [the] Agreement,
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be included in any employee benefit plan of
Company and Contractor waives any right to be
so included.
b) Established Independent Business. Contractor
acknowledges that Contractor has an established
independent business to provide delivery related
services.
c) Control of Activities. Company and
Contractor acknowledge that the means, method,
and control of the activities governed by [the]
Agreement shall remain at the discretion of the
Contractor. Contractor is free, and is
encouraged, to increase the number of delivery
[l]ocations within the [d]elivery [a]rea.
Contractor is free to purchase Contractor's own
equipment and supplies wherever Contractor
chooses, including at Contractor's option from
Company, with the exception of bags supplied by
an advertiser or another publisher and provided
by Company, which Contractor agrees to use.
Otherwise, Contractor has the option of inserting
copies of [p]ublications into poly bags . . . .
Contractor has no obligation to attend any
Company meetings.
Although such a provision alone is not definitive, see Mavrikidis, 153 N.J.
at 133, it is undisputed that Hopkins utilized his wife's vehicle which he or his
wife insured. Defendant did not pay Hopkins for any vehicle-related expenses
in accordance with paragraph 3(e) of the Agreement and the vehicle did not bear
the Courier-Post's logo or other markings identifying the newspaper. The parties
to the Agreement agreed in Paragraph 3(d) that Hopkins would be treated "as an
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8
independent contractor and direct seller and not as an employee under all
applicable laws for federal, state and local purposes"; it is not disputed that taxes
were not deducted from Hopkins's payments from defendant, as would be the
case if he was an employee. He received a 1099 form from defendant and was
responsible to pay all taxes.
Further evidence that defendant controlled only the result of the delivery
operation is Hopkins's "right to engage in any other business that does not
interfere with the performance of [the] Agreement, including the delivery of
other [p]publications or products" and his ability to "employ or contract with
other persons to assist in the performance of [the] Agreement," including the
"exclusive control" to "engage a substitute or subcontractor" at Hopkins's
expense to make deliveries if Hopkins chose not to, as long as Hopkins was
"solely responsible for the performance of [the] Agreement." The Agreement
specified defendant was not responsible to obtain a substitute delivery person.
The "significant fines" plaintiffs claim support their employer-employee
argument are actually liquidated damages imposed "not as a penalty," calculated
by the amount of newspapers Hopkins failed to deliver.
Additional contract terms, including those requiring Hopkins to provide a
commercial bond or security deposit to secure his performance under the
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Agreement and to indemnify and hold harmless defendant for claims and
damages arising from Hopkins's performance of the Agreement are atypical to
an employer-employee relationship.
We determine plaintiffs' remaining arguments, including those related to
the Agreement provisions about termination of the agreement and solicitation of
business, are without sufficient merit to warrant discussion in this opinion. R.
2:11-3(e)(1)(E). We add only that the termination clause was mutual to both
parties and the business-solicitation clauses provided incentives for Hopkins's
actions independent of any requirements – including quotas or goals – or
supervision by defendant. Those provisions did not reserve any right to
defendant to control Hopkins's delivery methods. We further find such
insufficient merit in any argument related to inapposite cases cited by plaintiffs
where the alleged employer exercised complete control over the employee. See,
e.g., De Monaco v. Renton, 18 N.J. 352, 355-56 (1955) (concluding that "an
independent contractor who had a franchise or exclusive right from the two
newspaper companies to distribute" newspapers "exercised full control over all
the newsboys, even to the extent of telling them precisely where they were to
stand and sell the papers").
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The evidence in this case clearly belies the existence of an employer-
employee relationship or that defendant maintained control over Hopkins's
delivery methods except those related to the end-product: timely delivery of the
newspaper. The facts here are so completely one-sided that a rational jury could
not come to any conclusion other than the one reached by the trial court in
granting summary judgment in defendant's favor. Mangual v. Berezinsky, 428
N.J. Super. 299, 308 (App. Div. 2012).
Affirmed.
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