Could South State and Seashore be directly responsible for the negligent hiring of One Son & Hoover?

Anthony v. One Sun Farms, LLC, N.J. Super. App. Div. January 2019

Submitted by New Jersey Truck Crash Lawyer, Jeffrey Hark

Facts:

South State is in the business of highway construction with its principle place of business in Cumberland County, New Jersey.  The company in in the business of  paving roads, and asphalt and sand production. It is registered with the United States Department of Transportation (DOT) because it owns and operates commercial vehicles incidental to its business operation. South State has a registration number with the DOT but not an interstate “operating authority” number because it is not a for-hire carrier in the business of transporting other companies’ cargo. It is owned in part by Chester Ottinger, Jr. and in part by the Ottinger Family Trust. Seashore is owned by Ottinger’s wife, Mary Lou Ottinger. It is in the business of producing and delivering asphalt and supplying trucking services. During the relevant period, Seashore frequently provided trucks to South State for use in construction jobs.

At the time of the tragic accident on November 4, 2013, South State required certain portable concrete highway barriers, stored at a site near another project, in order to complete the construction of an exit ramp off the Garden State Parkway. A South State employee contacted Seashore, requesting vehicles for hauling the barriers. As Seashore did not have enough trucks available for the job, Seashore contacted One Sun. One Sun, a nursery business owned by Newton B. Shimp III, owns several trucks and occasionally leases vehicles to Seashore or South State. Shimp agreed to provide the necessary trucks to South State. South State, after the accident, paid for the delivery of the barriers.

While making the delivery, one of One Sun’s part-time drivers, Greg R. Hoover, violated the company’s policy prohibiting passengers—his girlfriend accompanied him that morning. On his return trip, Hoover failed to stop at a traffic light, striking several vehicles in the intersection, causing injuries, and finally, landing on top of an overturned car that had been stopped at the red light. One of the occupants of that vehicle died. Hoover’s blood test results came back positive for marijuana. Although at the time of the accident he held a valid commercial driver’s license as well as a valid driver’s license, he had a history of driving infractions.

Obviously the insurance company for Hoover paid this claim for his negligence.  However, given the large number of claimants and the significant amount of the claims the independent’s limited insurance policy was not enough to fully compensate all claimants/  As a result, the plaintiffs attorneys were trying to have South State and Seashore be on note hook too. Factually, South State needed more trucks because they only own a few in their fleet for hauling their own materials and equipment.  South State then contacted their ‘other’ company, Seashore, to get more trucks to work on this locations.  Because Seashore regularly does not have enough trucks in its own fleet for this and all the other jobs they are working on at the same time it reach out to all the local ‘for hire’ independent contractors who own tractor/trailor or dump trucks. This process is a regular practice for these two companies.

1.  3rd Issue:  Was there “Negligent Hiring” of the independent contractor by Seashore Asphalt?

Plaintiffs contend that the trial court erred in granting summary judgment in favor of Seashore because it is directly liable for its own negligence in hiring One Sun and Hoover. Generally, “where a person engages a contractor, who conducts an independent business by means of his own employees, to do work not in itself a nuisance[,] he is not liable for the negligent acts of the contractor in the performance of the contract.” Mavrikidis v. Petullo, 153 N.J. 117, 131 (1998) (quoting Majestic Realty Assocs., Inc. v. Toti Contracting Co., 30 N.J. 425, 430-31 (1959)). However, Majestic carves out three exceptions to this rule: (1) if the principal reserves control “of the manner and means” of the contracted work, (2) where the principal hires an incompetent contractor, or (3) where the activity contracted for constitutes a nuisance per se. Mavrikidis, 153 N.J. at 134-37 (citing Majestic, 30 N.J. at 431).

In order to hold an employer liable under the second Majestic exception to the general rule of nonliability of principals, for the negligence of their independent contractors, the party bearing the burden must show both “(1) that the contractor was incompetent or unskilled to perform the job for which he was hired, and (2) that the principal knew or had reason to know of the contractor’s incompetence.” Id. at 137. Given this standard, plaintiffs argue that there was at minimum a genuine dispute over the extent of Seashore’s liability in hiring One Sun and Hoover, such that the jury should have made the ultimate decision.

Plaintiffs assert One Sun was incompetent and unskilled as they are in the nursery business. But, the barriers had no unique characteristics that, as the judge observed, “require[d] a specialized carrier.” The accident was unrelated to One Sun’s ability or inability to haul the barriers. That was the task for which Seashore hired One Sun and Hoover, thus it could not be held liable for negligence from retaining them for that purpose.

A negligence claim requires a plaintiff to “establish four elements: (1) that the defendant owed a duty of care; (2) that the defendant breached that duty; (3) actual and proximate causation; and (4) damages.” Fernandes v. DAR Dev. Corp., 222 N.J. 390, 403-04 (2015) (citing Townsend v. Pierre, 221 N.J. 36, 51 (2015)). Here, the accident happened when Hoover was returning to One Sun with an empty truck. Perhaps if the accident were caused by Hoover’s inability to maneuver a truck filled with heavy concrete barriers, there would be at least a tenuous factual connection to plaintiffs’ injuries. But that was not the case.

Another fact the trial court reviewed was the fact that yes, Hoover’s publicly available driver license abstract does include multiple past violations, including failure to give a proper signal and careless driving. Hoover was an incompetent driver, plaintiffs argue, and Seashore should have known this given his driving history. However, plaintiffs do not cite to any authority imposing the requirement of performing a driver history search of another company’s drivers, or even inquiring if the other company performs such searches. Further, Hoover possessed a valid commercial driver’s license while he was driving for One Sun, and thus was not seemingly unfit to drive as far as the State of New Jersey was concerned. If he was clearly unfit and incompetent, arguably his license would have been suspended.

Hence, plaintiffs’ characterization of One Sun and Hoover as incompetent to perform the task lacks support in the record. One of the key facts in this case was that the crash did not occur in the course of the delivery of the barriers. Hoover caused the accident while violating the fundamental rule of the road that traffic signals be obeyed, that a motor vehicle operator not be under the influence, as well as a policy of his employer that passengers not accompany drivers. Thus, Seashore was not the proximate cause of the accident, the negligence standard could not have been met, and summary judgment was properly granted.