DANIEL CONCEICAO VS. GRUBB AND ELLIS (L-0661-13, ESSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-5719-17T1

DANIEL CONCEICAO and
SONIA CONCEICAO,

Plaintiffs-Appellants,

v.

GRUBB AND ELLIS, NEWMARK
GRUBB KNIGHT FRANCK,
MICHAEL HOROHOE, MITSUI
SUMITOMO INSURANCE
GROUP HOLDINGS (USA), and
GRUBB AND ELLIS MANAGEMENT
SERVICES, INC.,

Defendants-Respondents.
___________________________________

GRUBB AND ELLIS, GRUBB AND
ELLIS REAL ESTATE MANAGEMENT,
INC., and MICHAEL HOROHOE,

Third-Party Plaintiffs-
Respondents,

v.

ZURICH AMERICAN INSURANCE
COMPANY, and LEXINGTON
INSURANCE COMPANY,

Third-Party Defendants-
Respondents.
___________________________________

MITSUI SUMITOMO INSURANCE
COMPANY OF AMERICA, MITSUI
SUMITOMO MARINE MANAGEMENT
COMPANY (U.S.A.), INC., and MITSUI
SUMITOMO INSURANCE GROUP
HOLDINGS (U.S.A.), INC.,

Third-Party Plaintiffs-
Respondents,

v.

NATIONAL WATER MAIN
CLEANING COMPANY, ZURICH
AMERICAN INSURANCE COMPANY,
and LEXINGTON INSURANCE
COMPANY,

Third-Party Defendants-
Respondents.
____________________________________

Argued June 4, 2019 - Decided June 25, 2019

Before Judges Messano, Fasciale and Rose.

On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Docket No. L-0661-13.

Michael J. Confusione argued the cause for appellants
(Hegge & Confusione, LLC, attorneys; Michael J.
Confusione, on the brief).

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 Mark R. Vespole argued the cause for respondents
Grubb and Ellis, Newmark Grubb Knight Franck,
Grubb and Ellis Management Services, Inc. and
Michael Horohoe (Wilson, Elser, Moskowitz, Edelman
& Dicker LLP, attorneys; Mark R. Vespole, of counsel
and on the brief; Kira German, on the brief).

Gerard H. Hanson argued the cause for respondents
Mitsui Sumitomo Insurance Company of America,
Mitsui Sumitomo Marine Management Company
(U.S.A.), Inc., and Mitsui Sumitomo Insurance Group
Holdings (U.S.A.), Inc. (Hill Wallack, LLP, attorneys;
Gerard H. Hanson and Victoria J. Airgood, on the
brief).

PER CURIAM

Daniel and Sonia Conceicao (collectively plaintiffs) appeal from two

February 2, 2018 orders granting summary judgment to Mitsui Sumitomo

Insurance Company of America, Mitsui Sumitomo Marine Management

Company (U.S.A.) Inc., improperly pled as Mitsui Sumitomo Insurance Group

Holdings (U.S.A.) Inc. (the Mitsui parties) and to Grubb & Ellis (Grubb), Grubb

& Ellis Management Services, Inc., and Michael Horohoe (the Grubb & Ellis

parties).1 We affirm.

In this negligence action, plaintiff sustained injuries when a sewer grate

cover fell on his right foot during a sewer pipe inspection. Mitsui owned the

1
Plaintiffs also list in their amended notice of appeal a July 16, 2018 order of
disposition, which marks the case "settled."
A-5719-17T1
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property where the accident occurred, and contracted with Grubb to manage the

property. Grubb employed Horohoe. Grubb contracted the pipe inspection work

to National Water Main Cleaning Company (National Water), which employed

plaintiff. Plaintiff was doing the job he was hired to do, of which he had

substantial experience, when the accident occurred.

We consider the facts in a light most favorable to the non-moving party.

Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). "An issue of

fact is genuine only if, considering the burden of persuasion at trial, the evidence

submitted by the parties on the motion, together with all legitimate inferences

therefrom favoring the non-moving party, would require submission of the issue

to the trier of fact." R. 4:46-2(c). If there is no genuine issue of material fact,

the question is then "whether the trial [judge] correctly interpreted the law."

DepoLink Court Reporting & Litig. Support Servs. v. Rochman, 430 N.J. Super.

325, 333 (App. Div. 2013). We owe no special deference to the motion judge's

conclusions on issues of law. Manalapan Realty, LP v. Twp. Comm. of

Manalapan, 140 N.J. 366, 378 (1995).

Richard Karwowski, plaintiff's supervisor told him that Horohoe would

assist plaintiff at the site. At the site, plaintiff spoke to Horohoe and asked him

where he could find the "out fall" – or the point that would enable plaintiff to

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access the sewer pipes without having to go through a sewer cover. Horohoe

told plaintiff that he did not know anything about an "out fall," but that the

access points were "through the storm drain covers." Plaintiff told Horohoe that

he needed a pitch point bar to open the storm grate covers, but that he did not

have one in his truck. Horohoe returned with a "blue pipe bending bar" and the

two tried to lift the grate, but the cover "wouldn't budge."

Horohoe told plaintiff to go to a local hardware store to purchase a pitch

point bar, and when he returned, the two tried to open the cover on one of the

catch basins, but it would not open. They tried another basin, which plaintiff

opened, pulling the sewer grate back, and resting it on the pitch point bar.

Horohoe held the storm drain cover while plaintiff went down into the basin.

Plaintiff had to remove a rock from the pipe, which required him to open another

catch basin. Horohoe was not with plaintiff when he opened the second grate

cover, but plaintiff called Horohoe over so that Horohoe could hold the grate

open while plaintiff went into the basin. While plaintiff was in the basin, he saw

two flashes and noticed that Horohoe was taking pictures of him. He began

climbing out of the basin when he heard Horohoe say, "[w]atch out," before the

storm drain cover fell on plaintiff's right foot, trapping it inside the basin.

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Horohoe used the pitch point bar to open the cover enough for plaintiff to

remove his foot.

"[A] negligence cause of action requires the establishment of four

elements: (1) a duty of care, (2) a breach of that duty, (3) actual and proximate

causation, and (4) damages." Jersey Cent. Power & Light Co. v. Melcar Util.

Co., 212 N.J. 576, 594 (2013). Whether a duty is owed is a question of law to

be decided by the trial judge. Carvalho v. Toll Bros. & Developers, 143 N.J.

565, 572 (1996). "[N]o bright line rule . . . determines when one owes a legal

duty to prevent a risk of harm to another." Wlasiuk v. McElwee, 334 N.J. Super.

661, 666 (App. Div. 2000). The imposition of a duty depends on several factors,

including: (1) "the relationship of the parties"; (2) "the nature of the attendant

risk"; (3) "the opportunity and ability to exercise care"; and (4) "the public

interest in the proposed solution." Hopkins v. Fox & Lazo Realtors, 132 N.J.

426, 439 (1993). "Ultimately, . . . the question of whether a duty exists is one

of 'fairness' and 'public policy.'" Wlasiuk, 334 N.J. Super. at 666-67 (quoting

Hopkins, 132 N.J. at 439).

As to the Mitsui parties, plaintiffs essentially conceded at oral argument

before us that the owner of the property had no duty. At best, plaintiffs' counsel

argued that perhaps they would be vicariously liable if Grubb became

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vicariously liable for the acts of Horohoe. We reject such a contention and

conclude the judge properly granted summary judgment to the Mitsui parties as

a matter of law.

A property owner does not have a duty to protect an employee of an

independent contractor from the very hazard created by doing the contract work.

See Dawson v. Bunker Hill Plaza Assocs., 289 N.J. Super. 309, 318 (App. Div.

1996). Liability does not attach unless (1) the owner retains control of the

manner and means of plaintiff's performance of the contracted work; (2) the

owner retains an "incompetent contractor"; and (3) the activity performed

"constitutes a nuisance per se." Majestic Realty Assocs., Inc. v. Toti Contracting

Co., 30 N.J. 425, 431 (1959). Here, the Mitsui parties did not retain control of

the work and did not retain National Water.

Furthermore, "a landowner has a non-delegable duty to use reasonable

care to protect invitees against known or reasonably discoverable dangers."

Dawson, 289 N.J. Super. at 317 (quoting Kane v. Hartz Mountain Indus., Inc.,

278 N.J. Super. 129, 140 (App. Div. 1994)). But a "landowner is under no duty

to protect an employee of an independent contractor from the very hazard

created by doing the contract work." Id. at 318.

Under this well recognized exception to the general
rule, "[t]he duty to provide a reasonably safe place to

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 work is relative to the nature of the invited endeavor
and does not entail the elimination of operational
hazards which are obvious and visible to the invitee
upon ordinary observation and which are part of or
incidental to the very work the contractor was hired to
perform."

[Ibid. (alteration in original) (quoting Sanna v. Nat'l
Sponge Co., 209 N.J. Super. 60, 67 (App. Div. 1986)).]

Even a landowner's general supervisory control of the results of the independent

contractor's work – which did not happen here – does not equate to control of

the manner and means for performing the work. Marion v. Pub. Serv. Elec. &

Gas Co., 72 N.J. Super. 146, 152 (App. Div. 1962). Thus, there is no liability

for the Mitsui parties.

As to the Grubb & Ellis parties, defendants acknowledge that Horohoe

could have assumed a duty to plaintiff if Horohoe would have volunteered to

hold the sewer grate or dropped it causing plaintiff's injury. But defendants

contend that plaintiff was injured while climbing out of the grate and was aware

that Horohoe was not holding the grate at that time. The judge said that plaintiff

"knew that Horohoe was not holding the sewer g[r]ate. He could have asked

Horohoe [to hold the grate] at that time, but consciously chose not to do so."

The judge found that plaintiff asked Horohoe "to do some things when he went

down the hole," but "didn't ask" Horohoe to assist him on the way back up.

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Thus, he found that plaintiff created the problem, not Horohoe. The judge

continued:

Clearly, at the point that [plaintiff] made the
decision that he was going to now leave the sewer, he
made all of the proper observations. He knew where
the g[r]ate . . . was. He knew where Mr. Horohoe was
because he saw him. And he said his hands were in his
pocket. . . . [H]e knew that prior to all this happening,
Mr. Horohoe had even taken a picture. So he knew at
that point certainly he wasn't holding the grate. So Mr.
Horohoe had no way of knowing whether . . . he should
be holding the g[r]ate . . . or not. As opposed to
[plaintiff], who, certainly, if it was important to hold
the g[r]ate . . . , he would have . . . been the one to know
and he would have told [Horohoe].

So . . . although I think there was an assumption
of duty, I think that . . . the chain was broken, and that
there was no liability on behalf of Grubb & Ellis and
Mitsui.

As to the assumption of duty, plaintiffs cite to Velazquez v. Jiminez,

which states that,

if a party has a pre-existing duty to act and breaches it,
either by failing to act or performing in a negligent
manner, the breach will be actionable. In the absence
of a pre-existing legal duty, if a party undertakes to act
and does so in an unreasonable manner, that conduct
will be actionable.

[172 N.J. 240, 262-63 (2002) (citations omitted).]

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"Whether a volunteer's conduct is reasonable depends upon the circumstances,

including his or her experience and training." Id. at 263.

The standard of care to be imposed will vary with . . .
the level of skill of the individual, and requires careful
consideration of all the attending circumstances,
including any disability under which the rescuer might
be operating – e.g., physical incapacity as well as the
urgency of the situation and the concomitant need to act
quickly.

[Ibid. (alteration in original) (internal quotation marks
and citations omitted).]

"No party is required to volunteer in the absence of a pre-existing duty to do so."

Ibid. "The question of duty is one of law to be decided on a case-by-case basis."

Ibid.

On appeal, plaintiffs contend that Horohoe was "not a mere bystander,"

but undertook a duty to act and did so in an unreasonable manner. But the judge

correctly said that although "there was an assumption of duty" by Horohoe, it

was abandoned and "the chain was broken" when the cover fell on plaintiff

because he "knew that Horohoe was not holding the sewer g[r]ate." "Volunteers,

persons under no duty to act, have been held liable for misfeasance or

malfeasance, for their negligence in performance; but they are ordinarily not

liable for a mere failure to perform the promised act." O'Neill v. Suburban

Terrace Apartments, Inc., 110 N.J. Super. 541, 545 (App. Div. 1970). And in

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Triggiani v. Olive Oil Soap Co., we explained that an affirmative duty generally

continues, but if notice of its discontinuance has been given, this signifies an

abandonment of the duty. 12 N.J. Super. 227, 230 (App. Div. 1951). So

defendants argue that this is a case of nonfeasance rather than misfeasance and

that Horohoe cannot be liable for signaling discontinuance of a voluntary

assumption of duty, which plaintiff was aware of when he saw that Horohoe was

no longer holding the cover. We agree, and like the Mitsui parties, the judge

properly granted summary judgment to the Grubb & Ellis parties as a matter of

law.

We emphasize that defendants were not under any duty to protect plaintiff

from his own negligent actions. See Majestic Realty, 30 N.J. at 430-31

("[O]rdinarily 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."). Although Horohoe may have had a duty once he

assisted plaintiff by holding the grate, he abandoned that duty, something

plaintiff knew when he saw that Horohoe was no longer holding the cover on

the last basin.

Affirmed.

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