RICARDO SUAREZ VS. HATCO CHEMICAL CORPORATION VS. SECURITAS SECURITY SERVICES (L-7580-15, 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NOT FOR PUBLICATION WITHOUT THE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-5022-16T1

RICARDO SUAREZ,

Plaintiff-Appellant,

v.

HATCO CHEMICAL CORP.,

Defendant.
_______________________________

CHEMTURA CORPORATION,1

Defendant/Third-Party
Plaintiff-Respondent,

v.

SECURITAS SECURITY SERVICES,

Third-Party Defendant.
_______________________________

Submitted May 29, 2018 - Decided July 23, 2018

Before Judges Accurso and Vernoia.

On appeal from Superior Court of New Jersey,
Law Division, Essex County, Docket No.
L-7580-15.

1
Improperly plead as Hatco Chemical Corp.
 Larry S. Geller, attorney for appellant.

Becker LLC, attorneys for respondent (Joseph
F. Falgiani, on the brief).

PER CURIAM

Plaintiff Ricardo Suarez appeals from a summary judgment

dismissing his premises liability complaint against defendant

Chemtura Corporation. We affirm.

Viewed in the light most favorable to plaintiff,2 the facts

are as follows. Plaintiff, twenty-years-old at the time of the

accident, was employed as a security guard by Securitas Security

Services,3 assigned to defendant's chemical plant in Fords, New

Jersey. He worked the midnight to 8:00 a.m. shift. When he

arrived for work on February 3, 2015, defendant's maintenance

2
Plaintiff did not comply with the requirement of R. 4:46-2(b)
to file a responding statement of material facts either
admitting or disputing each of the facts in the movant's
statement. Instead, he filed his own statement of material
facts, not referencing defendant's statement. Plaintiff's
obligation to respond in accordance with the Rule was not
optional. See Polzo v. Cty. of Essex, 196 N.J. 569, 586 (2008).
He is thereby deemed to have admitted those facts in defendant's
statement having sufficient support in the record. See R. 4:46-
2(b). As the essential facts are either drawn from the
transcript of plaintiff's deposition or the contract between
defendant and plaintiff's employer, Securitas Security Services,
both of which are included in the appendix, his non-compliance
has not impeded our review. See Kenney v. Meadowview Nursing &
Convalescent Ctr., 308 N.J. Super. 565, 569 (App. Div. 1998).
3
Securitas did not file a brief and is not a party to this
appeal.

2 A-5022-16T1
crew was just finishing plowing and salting the plant's interior

roads and walkways. It had not snowed that day but there was

snow on the ground. Plaintiff had seen the crew plowing and

salting at the end of his shift the day before. As he was

leaving, his supervisor told him if the conditions were bad when

he came in that evening, he did not have to go out.

The plant is situated on seventy-seven acres and consists

of multiple buildings and structures. Plaintiff was responsible

for walking the property, checking to see that doors and gates

were locked and reporting any unsafe conditions, including ice

on the ground.4 Plaintiff testified conditions were fine when he

began his tour, "dark and cold. That's it." His first tour the

morning of the accident was uneventful. He did not notice any

icy conditions. He did not see any ice on his second tour

either. As he was nearing the end of that tour, however, he

slipped on ice near the west lift station, hurting both wrists,

his left shoulder and his neck.

After his accident, plaintiff returned to the guard house

and wrote in the log, "[s]lipped and fell, west lift station,

icy conditions." He testified at deposition that he did not

4
The contract between defendant and Securitas provides that
security officers shall "[o]bserv[e] and report suspicious
activities, unsafe conditions, and security breaches."

3 A-5022-16T1
recall inspecting the area where he fell but knew he was walking

on the snow toward a paved area. When asked how he knew there

was ice under the snow if he did not inspect the area, plaintiff

replied, "I slipped. . . . [Y]ou can't slip on snow." In his

own statement of material facts, plaintiff asserted the

maintenance crew "[o]bviously . . . did not see the black ice"

on which he fell either "or they would have spread salt on it."

Defendant submitted its snow removal protocol for the Fords

plant in support of its motion. The policy details

responsibilities for plowing and salting interior roadways and

shoveling and salting sidewalks "to insure the plant stays open

and all Hatco employees, suppliers and customer trucks, can

enter and leave site safely."

Following discovery, defendant moved for summary judgment,

contending it owed no duty to plaintiff under the independent

contractor exception of Wolczak v. National Electric Products

Corp., 66 N.J. Super. 64, 75 (App. Div. 1961) (noting "the

unimpaired line of holdings to the effect that the duty to

provide a reasonably safe working place for employees of an

independent contractor does not relate to known hazards which

are part of or incidental to the very work the contractor was

hired to perform"). Alternatively, defendant argued plaintiff

failed to carry his burden to show it had actual or constructive

4 A-5022-16T1
notice of the icy condition where he fell or, assuming such

notice, that it failed to act in a reasonably prudent manner to

remove or reduce the hazard. Plaintiff opposed the motion,

arguing defendant owed him a non-delegable duty of reasonable

care, and that material disputes of fact precluded the entry of

summary judgment.

The trial court entered summary judgment for defendant,

dismissing plaintiff's complaint. Relying on Wolczak, the judge

found defendant had no duty to plaintiff to guard against "a

known hazard incidental to the very work that the gentleman was

hired . . . to warn about." The judge further found defendant

had no constructive notice, opining that "no reasonable[,]

rational Essex County jury could find that in fact that

defendant breached a duty here."

Plaintiff appeals, arguing the trial court erred in

concluding defendant did not owe him a duty and that material

disputed facts precluded summary judgment.

We review summary judgment using the same standard that

governs the trial court. Murray v. Plainfield Rescue Squad, 210

N.J. 581, 584 (2012). Thus, we consider "whether the evidence

presents a sufficient disagreement to require submission to a

jury or whether it is so one-sided that one party must prevail

as a matter of law." Liberty Surplus Ins. Corp., Inc. v. Nowell

5 A-5022-16T1
Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (quoting Brill v.

Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995)). In

considering application of the law to the facts adduced on the

motion, our review is de novo without deference to any

interpretive conclusions we believe mistaken. Nicholas v.

Mynster, 213 N.J. 463, 478 (2013); Manalapan Realty, L.P. v.

Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). Applying

those principles here, we agree summary judgment was

appropriate, although not for precisely the same reasons as the

trial court. See State v. Maples, 346 N.J. Super. 408, 417

(App. Div. 2002) (an appeal is taken from the court's order

rather than reasons for the order).

We acknowledge the long line of cases, represented by

Wolczak, expressing "[t]he general principle . . . that the

landowner is under no duty to protect an employee of an

independent contractor from the very hazard created by the doing

of the contract work," provided the landowner has not retained

"control over the means and methods of the execution of the

project." Muhammad v. N.J. Transit, 176 N.J. 185, 198 (2003)

(quoting Gibilterra v. Rosemawr Homes, 19 N.J. 166, 170 (1955)).5

But in our view, the facts of this case are much closer to those

5
No one suggests defendant retained any control over how
plaintiff performed his duties.

6 A-5022-16T1
in Moore v. Schering Plough, Inc., 328 N.J. Super. 300, 305

(App. Div. 2000), where we addressed directly "the duty owed to

a security guard with respect to ice and snow accumulating on

walkways traveled on his usual rounds," than those on which

defendant relies.

The plaintiff in Moore was a security guard employed by

Wachenhut, which had a contract with Schering Plough to provide

around-the-clock security services at Schering's sprawling Essex

County facility. Id. at 303. Moore was injured when he slipped

on snow walking between two buildings on a day the complex was

closed between Christmas and the New Year. Ibid. Writing for

the panel, Judge King noted the cases finding exceptions to the

duty of reasonable care owed by a landowner to the employees of

an independent contractor "invariably involve the 'very work the

contractor was hired to perform,' such as operational hazards

inherent in repairing a defective roof." Id. at 306 (quoting

Rigatti v. Reddy, 318 N.J. Super. 537, 541-42 (App. Div. 1999)).

Noting that none of the parties alleged Moore had anything

to do with snow removal on the walkways, although "[h]is

superiors may have had a duty to notify Schering's maintenance

foreman when the snow started," Judge King held Schering had a

duty of reasonable care to Moore for the safety of the security

guard with respect to snow and ice accumulation while on his

7 A-5022-16T1
rounds. Id. at 307. Whether Schering had discharged its duty

under all the circumstances was a question for the jury. Ibid.

This case is not on all fours with Moore, because plaintiff

testified at deposition it was his responsibility to report

unsafe conditions at the plant, including the presence of

accumulated ice and snow. Although we are not nearly so

sanguine as the trial judge about the absence of a duty to

plaintiff under the circumstances of this case, we do not need

to consider the issue further. Even assuming a duty existed, we

agree with the trial judge no reasonable jury could find for

plaintiff on this record.

In order to establish defendant's liability, plaintiff

needed to show: "(1) a duty of care, (2) a breach of that duty,

(3) actual and proximate causation, and (4) damages." Davis v.

Brickman Landscaping, Ltd., 219 N.J. 395, 406 (2014) (quoting

Jersey Cent. Power & Light Co. v. Melcar Util. Co., 212 N.J.

576, 594 (2013)). Because this is a premises liability case and

plaintiff a business invitee, see Rowe v. Mazel Thirty, LLC, 209

N.J. 35, 43 (2012), defendant owed plaintiff "a duty of

reasonable care to guard against any dangerous conditions on

[its] property that the owner either knows about or should have

discovered. That standard of care encompasses the duty to

conduct a reasonable inspection to discover latent dangerous

8 A-5022-16T1
conditions." Id. at 44 (quoting Hopkins v. Fox & Lazo Realtors,

132 N.J. 426, 434 (1993)). "[A]n invitee seeking to hold a

business proprietor liable in negligence 'must prove, as an

element of the cause of action, that the defendant had actual or

constructive knowledge of the dangerous condition that caused

the accident.'" Prioleau v. Ky. Fried Chicken, Inc., 223 N.J.

245, 257 (2015) (quoting Nisivoccia v. Glass Gardens, Inc., 175

N.J. 559, 563 (2003)).

The absence of actual or constructive notice of the

dangerous condition is generally fatal to a plaintiff's claim of

premises liability, Arroyo v. Durling Realty, LLC, 433 N.J.

Super. 238, 243 (App. Div. 2013), and it is here. The

undisputed facts in the motion record make clear defendant was

without actual or constructive notice of the icy condition near

the plant's west lift station. There was obviously no actual

notice because plaintiff, who had already walked the area just

two hours before the accident, testified he did not see ice at

any time before or after he fell. Plaintiff himself asserted on

the motion that defendant's maintenance crew had not seen the

black ice either, "or they would have spread salt on it."

As to constructive knowledge, plaintiff testified

defendant's maintenance crew had just finished plowing and

salting when he arrived for work and that conditions were fine

9 A-5022-16T1
when he began his tour. Indeed, plaintiff testified at his

deposition that he did not use the spotlight he was carrying to

determine whether conditions were icy in the area where he fell

"[b]ecause everything seemed okay." If plaintiff, who had twice

walked the area in the hours before the accident, saw nothing to

put him on notice of the icy conditions near the west lift, we

cannot see how defendant could be charged with such notice.

Further, plaintiff offered no proof defendant failed to

exercise reasonable care in its maintenance of the roads and

sidewalks he traversed in the course of his duties at the plant,

even assuming it had notice of the icy conditions. Defendant

had a snow removal protocol in place at the time of the

accident, which it was apparently following as plaintiff

testified the crews had just finished plowing and salting the

entire plant just as he arrived, even though it had not snowed

all day.

Having reviewed the motion record, we are satisfied

plaintiff failed to establish a prima facie case of premises

liability, entitling defendant to summary judgment dismissing

the complaint.

Affirmed.

10 A-5022-16T1