dissenting.
The ultimate question raised by the record and the majority opinion is the extent to which this Court is at liberty not to adhere to its own precedents. In Brill v. Guardian Life Insurance Co. of America, 142 N.J. 520, 666 A.2d 146 (1995), a precedent of substantial consequence, we emphasized that for purposes of deciding motions for a directed verdict, for judgment notwithstanding the verdict and for summary judgment, “the essence of the inquiry in each is the same: “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.’ ” Id. at 536, 666 A.2d 146 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 2512, 91 L. Ed.2d 202, 214 (1986)). Despite Brill’s mandate, the Court affirms the Appellate Division’s judgment in favor of respondent Ciar Pine Servicenter (Ciar Pine) notwithstanding a jury verdict against it. The jury verdict against Ciar Pine was based in part on a jury finding that Ciar Pine negligently hired an incompetent contractor, a finding that was supported by substantial evidence in the record, and unquestionably by sufficient evidence to withstand a motion under Rule 4:40-2 for judgment notwithstanding the verdict based on the standard we promulgated in Brill.
I
After a twelve-day trial, an Essex County jury returned a $750,000 damages verdict in favor of petitioner Alice Mavrikidis and $30,000 for her husband’s per quod claim. The damages awarded to petitioner Alice Mavrikidis were to compensate her for severe burns and other injuries she sustained when a dump truck overloaded with hot asphalt and operating with defective brakes went through a red light, collided with petitioner’s car, struck a telephone pole and then overturned onto petitioner’s car. Petitioner’s bums from the hot asphalt, consisting of second and third-*150degree burns over twenty-one percent of her body, were so severe that she was relocated from University Hospital in Newark to the burn center at St. Barnabas Hospital, where she underwent extensive skin-grafting surgery during a three and one-half week hospitalization. Unable to work for one and one-half years after the accident, her residual injuries included permanent scarring to parts of her body where skin grafting was required.
The jury verdict apportioned 72% of liability to Angelo and Gerald Petullo (24% to Angelo and 48% to Gerald), the father and son who respectively owned and drove the unregistered and uninsured dump truck and had been hired by Ciar Pine to transport the asphalt and repave Ciar Pine’s gasoline station; 11% to Newark Asphalt for overloading the dump truck; and 17% to Ciar Pine. That apportionment was based on a jury verdict that determined that (1) Ciar Pine retained control over the Petullo’s performance of the work for Ciar Pine; (2) Ciar Pine negligently hired an incompetent contractor; and (3) the transport of hot asphalt is inherently dangerous. Relying on this Court’s decision in Majestic Realty Associates, Inc. v. Toti Contracting Co., 30 N.J. 425, 153 A.2d 321 (1959), the trial court held that Ciar Pine was vicariously liable for the Petullo’s negligence and entered judgment holding Ciar Pine hable for 89% of the damages awarded.
In an unreported opinion, the Appellate Division held as a matter of law that the trial record did not present a jury question on any one of the three grounds of liability on which the jury verdict against Ciar Pine was based, and therefore ordered the entry of judgment notwithstanding the verdict, see Rule 4:40-2, in favor of Ciar Pine. That court remanded the matter to the Law Division for a retrial to reapportion liability between the Petullos and Newark Asphalt. This Court now affirms the judgment of the Appellate Division.
II
The soundness of the Court’s disposition depends in part on its application of our holding in Majestic, supra, 30 N.J. 425, 153 A.2d *151321. That case involved a suit against the City of Paterson’s Parking Authority for damages that resulted when the wall that its independent contractor was demolishing collapsed onto the roof of plaintiffs adjoining building. Id. at 429, 153 A.2d 321. The Court referred to the long-settled doctrine “that ordinarily where a person engages a contractor, who conducts an independent business by means of his own employees, ... he is not liable for the negligent acts of the contractor in the performance of the contract.” Id. at 430-31, 153 A.2d 321. The Court acknowledged that three exceptions to that doctrine have been generally accepted:
(a) where the landowner retains control of the manner and means of the doing of the work which is the subject of the contract; (b) where he engages an incompetent contractor; or (c) where ... the activity contracted for by the landowner is inherently dangerous or involves a peculiar risk of harm to others unless special precautions are taken.
[Id. at 431, 438, 153 A.2d 321.]
Focusing on the third exception, the Court observed that an inherently dangerous activity “means more than simply danger arising from the causal or collateral negligence of persons engaged in it under particular circumstances,” but rather is a term that “signifies that danger inheres in the activity itself at all times, so as to require special precautions to be taken with regard to it to avoid injury.” Id. at 435, 153 A.2d 321. The Court concluded that the demolition of a building directly adjacent to another building, for which the Paterson Parking Authority had engaged an independent contractor, constituted an inherently dangerous activity concerning which the Authority’s duty to perform the demolition with due care was non-delegable. Id. at 438, 153 A.2d 321. In imposing vicarious liability on the Parking Authority for the damages caused by its contractor’s negligence, the Court observed:
It is urged that such a burden ought not to be imposed upon a landowner who is not competent to do the work himself and so must turn to a person following the necessary independent calling in the particular field to accomplish the result sought. But in the resolution of the conflicting interests of the innocent injured person and the landowner who chose the contractor, justice and equity demand recognition of the absolute duty.
*152[Id. at 439,153 A.2d 321.]
Applying the Majestic exceptions to this record, the Court holds that as a matter of law the first Majestic exception was inapplicable because the evidence did not raise a jury question whether Ciar Pine reserved control “of the manner and means” of the contracted work. The Court observes that “[w]hen the evidence is viewed in the light most favorable to plaintiffs, [Ciar Pine’s] actions arose from a general supervisory power over the result to be accomplished rather than the means of that accomplishment.” Ante at 136, 707 A.2d at 986. I agree with that conclusion.
The Court also holds as a matter of law that the evidence did not present a jury question on whether the work that the Petullos agreed to perform for Ciar Pine was inherently dangerous. Ante at 143-46, 707 A.2d at 989-91. In reaching that conclusion the Court too narrowly describes the work to be performed as merely “paving,” observing that because the transport of the asphalt to the job site was solely the Petullos’ responsibility, it was not part of the work contracted for by Ciar Pine. Ante at 145-46, 707 A.2d at 991. In my view, the Court’s characterization of the scope of the work is unrealistically technical and does not acknowledge that the transport of asphalt to the job site was inextricably related to the paving the Petullos were to perform. Nevertheless, I agree that neither paving nor the transport of hot asphalt involves “danger [inherent] in the activity itself at all times, so as to require special precautions to be taken with regard to it to avoid injury.” Majestic, supra, 30 N.J. at 435, 153 A.2d 321. See Restatement (Second) of Torts, § 416 (1965).
Because our decision in Majestic focused on the “inherently dangerous activity” exception, the opinion did not elaborate on the analytical basis for the second Majestic exception based on hiring of an incompetent contractor. As the prevailing authorities make clear, the analytical basis for imposing liability on a person who engages an incompetent contractor derives from principles of *153negligence. See Restatement (Second) of Torts, § 411, which states:
Negligence in Selection of Contractor
An employer is subject to liability for physical harm to third persons caused by his failure to exercise reasonable care to employ a competent and careful contractor
(a) to do work which will involve a risk of physical harm unless it is skillfully and carefully done, or
(b) to perform any duty which the employer owes to third persons.
Comment a to § 411 defines a competent and careful contractor as “a contractor who possesses the knowledge, skill, experience, and available equipment which a reasonable man would realize that a contractor must have in order to do the work which he is employed to do without creating unreasonable risk of injury to others.” (emphasis added).
The leading cases echo the Restatement’s formulation. See Wilson v. Good Humor Corp., 757 F.2d 1293, 1309 (D.C.Cir.1985) (“Employers can be found directly liable under ordinary negligence principles for hiring an independent contractor if the employer knew or reasonably should have known that the contractor was not competent and if the contractor’s incompetence proximately caused injury to others.”); L.B. Foster Co. v. Hurnblad, 418 F.2d 727, 729-32 (9th Cir.1969); Risley v. Lenwell, 129 Cal.App.2d 608, 277 P.2d 897, 907-08 (1954). See also J.D. Lee and Barry A. Lyndahl, Modem Tort Law § 8.03, at 222 (1991) (“An employer may be liable for the negligent acts of an independent contractor if the employer fails to exercise due care in the selection of a competent independent contractor.”); W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 71, at 510 (5th ed. 1984) (same); Reuben I. Friedman, Annotation, When is Employer Chargeable with Negligence in Hiring Careless, Reckless or Incompetent Contractor, 78 A.L.R.3d 910 (1977) (same).
Consistent with the Court’s treatment in Majestic of the liability of one who hires an independent contractor to perform inherently dangerous work, the employer of a negligently selected contractor would be vicariously liable for any negligent acts of that contractor that are related to the reasons why his hiring was improper. *154Comment b to § 411 of the Restatement sets forth .the prevailing rule:
The employer of a negligently selected contractor is subject to liability under the rule stated in this Section for physical harm caused by his failure to exercise reasonable care to select a competent and careful contractor, but only for such physical harm as is so caused. In order that the employer may be subject to liability it is, therefore, necessary that harm shall result from some quality in the contractor which made it negligent for the employer to entrust the work to him.
Accordingly, the trial court erred when it allowed the jury to allocate fault among Ciar Pine, the Petullos and Newark Asphalt. The correct allocation should have been between the Petullos and Newark Asphalt, with Ciar Pine vicariously liable for the percentage of fault allocated to the Petullos.
The Court superficially describes the trial record on the issue of the Petullos’ competence and observes that “[vjiewing the evidence most favorably to plaintiffs, we find that the evidence does not support a finding that the Petullos were incompetent to perform the paving work for which they were engaged; hence, there is no basis for holding Ciar Pine liable ... for plaintiffs injuries.” Ante at 137, 707 A.2d at 986-87.
Substantial evidence in the record supported the jury’s finding that Ciar Pine was negligent in hiring the Petullos to pave and to transport hot asphalt to the job site. The testimony of Karl Pascarello, the owner of Ciar Pine, strongly suggested that his primary reason for hiring the Petullos was that they owed him around eighteen to twenty thousand dollars for gasoline and repairs and that requiring them to do the paving job was the only way to recoup some of his money. Pascarello testified that his service station had been operating since 1972, that he sold gasoline and made repairs on all makes and models of cars and trucks, and that the Petullos had been customers for twenty-two years. He was asked about his relationship with the Petullos in September 1990:
Q. Now, thinking back to September, 1990, what was your relationship with Petullo Brothers, Inc.?
A. They owed me a lot of money.
Q. What was that for?
*155A. Gasoline that they purchased.
Q. Uh, huh, and is it just gasoline?
A Ninety-five percent of it.
Q. And what’s the remainder?
A Oh, maybe we do a tune up on their vehicle, you know, sell them a battery, that was about it. They basically did all the work themselves.
Q. What would you do — and what would you do, you kept a running tab of all the—
A House account.
Q. And how would you get paid?
A Usually cash. When he had the money because I refused to take checks from him because he bounced too many of them.
Pasearello also testified that he had stopped extending credit to the Petullos because they bounced checks and consistently broke promises to pay down their account:
Q. Did there come a time when you no longer allowed them to obtain gas on credit, that you demanded cash?
A They have a ceiling. Like for instance, now they’ll get no more than $100. Once they reach their limit of $100, they don’t get nothing from me until they pay that $100.
Q. So there’s a $100 credit limit at this time for Petullo Brothers Inc.?
A Correct.
Q. Was there any type of limit at the time of this accident in 1990?
A They were off. In other words, at that time, 1990, they were not getting no more credit from me. I was just trying to recoup my losses from them. Monies owed to me.
Q. So the answer to my previous question as to whether there came a time when you no longer were willing to extend credit to Petullo Brothers Inc. would be yes.
A Yes.
Q. How long before the accident did you stop extending credit to Petullo Brothers Inc.?
A I really don’t remember.
Q. Was it more than a year before?
A I don’t remember. I’ll be honest with you, I went around and around chasing my money forever with them.
Q. You went around and around chasing your money?
A Yes — yeah. He’s the type of guy that says, Karl, I’ll be in Friday, and I’ll give you $1,000. And Friday comes and goes and the next Friday comes and goes and it’s just constantly running.
*156Q. Do you know how long you were chasing this money down after you stopped extending credit?
A. He’s always owed me money, okay? "Whether it was because he’d wait to finish a job and if he was on the job for a month and finally he’d give me the money and if the check bounced, it was just nonsense.
Pascarello also testified that in hiring the Petullos to perform the paving work at his station he was influenced as much by the money they owed him as he was by their ability to do the work:
Q. Okay. So you weren’t too concerned with the 20K, you were more concerned with Petullo Brothers’ reputation.
A. No. It was equal. I cared about my 20K.
Q. But you indicated before that you were more interested in the reputation more than the $20,000.
A. Well the work had to be done.1
Portions of Pascarello’s deposition testimony, in which he described the Petullos’ vehicles, were also read into the record:
Q. How many vehicles did they have?
A. They were in and out of vehicles constantly. So they had an old pick up truck, they had an old dump truck. The dump truck we never serviced, that just got gas. The pick up truck, maybe we did a tune up on it, or an oil change. Usually it was, basically get it through inspection, get it through inspection type of deal. Lights never worked, this never worked.
Q. Are you an inspection agency as well?
A. No, but we do the work to try to get it through.
Q. What other equipment, if any, if you know, that Petullo Brothers owned?
A. He has one machine too. He has — it's like a pay loader I guess.
Q. And is that pretty much it? That you ever saw?
A. Yeah, yeah. Everything was junks to be honest with you.
*157Q. You said earlier this dump truck, I’ll ask you again, what kind of shape was this dump truck in that was bringing the asphalt to the station.
A. It ran. What can I tell you. It ran and dumped.
Q. Did you use the word junky before?
A. Most of this equipment is all junk.
During his direct testimony, Pascarello was asked what he meant by his deposition testimony in which he described the Petullos’ trucks as “junks.” “Junks, meaning that the fenders— the doors had buckles in them, the bumpers were dented, you know, that the truck looked a mess. Okay, it — the fenders were banged, the grills were broken, the tailgates were bent. Basically facial.”
Dining cross-examination Pascarello described the trucks in somewhat more detail, observing that [t]he fenders, doors, banged up, could have a cracked windshield, you know, typical
mason contracting truck____ Tailgates were loose, you know ... pins might have been missing, one pin might have been missing or a bolt was put in its place where a pin should have been. Basically did the same job, but, you know, wasn’t proper---- Well, maybe they weren’t dosed all the way because the back of the truck was bent. They wouldn’t fit into the eyes where the pins go.
The cross-examination continued:
Q. How about bald tires?
A. They had bald tires.
Q. Constantly?
A. At times. There were some bald tires.
Q. Do you remember — you testified at a hearing back in November describing his vehicles, they run three days, five days, they break down.
A. Uh huh.
Q. Well what broke down? And you answered, blew a clutch, drop a clutch rod, flat tires, constantly had bald tires.
A. Okay.
Although Pasearello’s deposition testimony indicated that he sometimes worked on the Petullos’ pick-up truck to help it pass inspection, he gave contradictory testimony at trial, acknowledging that the Petullos probably did not get their trucks inspected:
Q. At times, did you — Mr. Pascarello, did you work on the — I realize that Mr.— that the Petullos had several vehicles, is that right?
A. That’s correct.
*158Q. In fact they were in and out of vehicles all the time, isn’t that right?
A. That’s correct.
Q. The junks would come and go?
A. I guess.
Q. And at times you would work on repairing them to get them through inspection, is that right?
A. No.
Q. You helped him sometimes get some of his vehicles through inspection?
A. If they had a miss in it or something like that. To be honest with you they probably — well, I don’t know if you — you know, probably didn’t get them inspected.
Q. Probably didn’t get them inspected. Did you notice whether or not the trucks ever had inspection stickers on them?
A. I didn’t really notice.
Pascarello was asked again about the inspections:
Q. Incidentally, I believe you testified — I believe your words were to the effect, to be honest, they probably didn't get the vehicles inspected. Do you remember that? You were talking to—
A. Just now, a while ago?
Q. Yes.
A. Yeah.
Q. Yeah. I’m sorry.
A. Uh huh. See I don’t do inspection work.
Q. I see. Well my question is—
A. In other words I don’t put stickers on.
Q. —did you care at all whether their vehicles were inspected? That you were hiring these guys to do this job?
A. To tell you — it never came into my mind.
Evidence adduced at trial revealed that after the accident Gerald Petullo pled guilty in Bloomfield Municipal Court to charges of disregarding a traffic signal, driving while on the suspended list and driving without insurance on his vehicle. Angelo Petullo pled guilty to driving while on the suspended list, and Petullo Brothers, their inactive corporation, pled guilty to operating an unsafe and overweight vehicle. That plea was based on an inspection of the Petullos’ dump truck a few days after the accident that revealed that the truck had no right rear brake, that its weight at the time of the accident exceeded its registered gross vehicle weight by 866 pounds, and that the combined weight of the *159cargo plus the truck axle exceeded the amount allowed by statute by 5,106 pounds. Moreover, plaintiffs traffic safety expert expressed the opinion that the Petullos’ truck was overloaded by eighty-two percent.
Pasearello never admitted that he had performed mechanical work on the Petullos’ dump truck, although he acknowledged making repairs on their pick-up truck, and never conceded that he believed the truck to be unsafe or without a right rear brake. Had he done so he would have admitted liability under Majestic. What he did concede was that the trucks were “junks,” had bald tires, broke down constantly, had a “beat-up” appearance, and were not subjected to annual motor vehicle inspections. Moreover, his testimony expressly acknowledged that the Petullos were “deadbeats” who frequently issued bad checks, and that hiring them to pave his station was the only practical way to get back some of the money they owed him. Accepting as true the evidence supporting plaintiffs position, and according it all reasonable inferences to be deduced from that testimony, the question is whether a reasonable jury could find by a preponderance of the evidence that Ciar Pine negligently hired the Petullos to pick up and deliver hot asphalt and pave the service station.
Merely to state the question compels an affirmative answer. The jury could have inferred that Pasearello, although admitting some familiarity with the trucks, understated his actual knowledge that they were mechanically defective and unsafe for transporting heavy loads. The jury could infer that Pasearello knew that the trucks were not taken for inspection because they could not pass inspection, and could have inferred that the missing right rear brake on the dump truck was one of the reasons that truck was not inspected. The jury could infer that Pasearello was so determined to recoup some of his twenty thousand dollar extension of credit that he was unconcerned about the safety of the Petullos’ trucks. In short, considering the evidence in the light most favorable to plaintiff, the jury could find that Ciar Pine negligently hired an incompetent contractor. Surely, the evidence on that *160question is not “so one-sided that [Ciar Pine] must prevail as a matter of law.” Liberty Lobby, supra, All U.S. at 251-52, 106 S.Ct. at 2512, 91 L. Ed 2d at 214.
Recognition that this record presents a jury question concerning Ciar Pine’s breach of its duty of care in selecting an incompetent contractor does not imply that a corresponding duty would exist if the employer were a homeowner or a business proprietor less familiar than Ciar Pine with matters of vehicular maintenance. “The question of whether a duty to exercise reasonable care to avoid the risk of harm to another exists is one of fairness and policy that implicates many factors.” Carvalho v. Toll Bros. & Developers, 143 N.J. 565, 572, 675 A.2d 209 (1996). In assessing whether to impose a duty of care, courts consider not only the foreseeability of harm to the injured party but also address whether considerations of fairness and policy warrant the imposition of such a duty. Carter Lincoln-Mercury, Inc. v. EMAR Group, Inc., 135 N.J. 182, 194-95, 638 A.2d 1288 (1994). That inquiry “involves identifying, weighing, and balancing several factors — the relationship of the parties, the nature of the attendant risk, the opportunity and ability to exercise care, and the public interest in the proposed solution.” Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439, 625 A.2d 1110 (1993). Suffice it to observe that not every employer of a mason contractor would possess, as Ciar Pine did, the “opportunity and ability to exercise care” on a level adequate to support the legal conclusion that a breach of duty occurred.
Ill
The Court’s opinion in Brill v. Guardian Life Insurance Co. of America, supra, 142 N.J. at 537, 666 A.2d 146, took pains to point out that despite our new summary judgment standard “the right of trial by jury remains inviolate.” We observed that “the summary judgment standard we adopted does not ‘denigrate the role of the jury.’ ” Ibid, (quoting Liberty Lobby, supra, All U.S. at *161255, 106 S.Ct. at 2513, 91 L. Ed.2d at 216). We stressed that under our new standard
a determination whether there exists a “genuine issue” of material fact that precludes summary judgment requires the motion judge to consider 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. The “judge’s function is not himself [or herself! to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.”
[Brill, supra, 142 N.J. at 540, 666 A.2d 146 (citation omitted).]
The Court today, without explanation or justification, fails to follow its own standard. Answering interrogatory ten the jury determined that Ciar Pine negligently hired an incompetent contractor and that that negligence was a proximate cause of plaintiffs injuries. That finding, under Majestic, would render Ciar Pine vicariously liable for all fault imputed to the Petullo defendants by the jury. In spite of a record that indisputably raises a jury question concerning Ciar Pine’s negligence, the Court ignores Brill and awards Ciar Pine judgment notwithstanding the jury verdict.
I would reverse the judgment of the Appellate Division and remand the matter for retrial on liability only against all defendants.
HANDLER and O’HERN, JJ., join in this opinion.
For affirmance and remandment — Chief Justice PORITZ, and Justices POLLOCK and COLEMAN — 4.
For reversal and remandment — Justices STEIN, HANDLER and O’HERN — 3.
The Court’s opinion misconstrues the significance of Pascarello’s testimony that he hired the Petullos to recoup some of the money they owed him. The Court incorrectly assumes that that testimony suggests that the Petullos were incompetent because they were financially irresponsible, and devotes five pages of its opinion to the repudiation of an argument never advanced. Ante at 138— 41, 707 A.2d at 987-88. The point of Pascarello’s testimony about his determination to recover a portion of the Petullos’ debt is that it would permit a jury to infer that although he knew that the Petullos’ trucks were unfit to haul asphalt safely, he hired them without concern for the danger they posed because his primary motive was to recoup some of their indebtedness to him.