DEBORAH DERRICOTT v. OCEAN TERRACE LUXURY CONDOMINIUMS (L-1306-19, ATLANTIC COUNTY AND STATEWIDE) ( 2022 )

NOT FOR PUBLICATION WITHOUT THE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-0833-20
DEBORAH DERRICOTT,
Plaintiff-Appellant,
v.
OCEAN TERRACE LUXURY
CONDOMINIUMS, MAX
GURWICZ & SON ENTERPRISES,
OCEAN TERRACE
CONDOMINIUM ASSOCIATION,
INC., and MAX GURWICZ &
SONS SALES, INC.,
Defendants-Respondents,
v.
GUARDPRO SECURITY, INC.,
Third-Party Defendant-
Respondent.
______________________________
Argued December 15, 2021 – Decided February 28, 2022
Before Judges Gilson and Gummer.
On appeal from the Superior Court of New Jersey, Law
Division, Atlantic County, Docket No. L-1306-19.
David T. Wright argued the cause for appellant (The
Wright Law Firm, attorneys; David T. Wright, on the
brief).
Robyn F. McGrath argued the cause for respondent
Ocean Terrace Luxury Condominiums and Ocean
Terrace Condominium Association, Inc. (Sweeney &
Sheehan, PC, attorneys; Robyn F. McGrath, on the
brief).
PER CURIAM
Contending a genuine issue of material fact existed as to whether she was
working as a security guard when she was assaulted on the condominium
defendants' property, plaintiff Deborah Derricott appeals an order granting the
condominium defendants' summary-judgment motion. 1 Agreeing with Judge
James P. Savio that no genuine issue existed, we affirm.
1
Plaintiff referred to "Ocean Terrace Association, Inc." as "Ocean Terrace
Condominium Associates, Inc." in the caption of the complaint. We use "Ocean
Terrace Condominium Association, Inc." in the caption because defendant used
that name in its court submissions. We refer to Ocean Terrace Luxury
Condominiums and Ocean Terrace Condominium Association, Inc. collectively
as the "condominium defendants."
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I.
We glean these facts from the summary-judgment record, viewing them
in the light most favorable to plaintiff, the party opposing summary judgment.
See Richter v. Oakland Bd. of Educ., 246 N.J. 507, 515 (2021) (citing Brill v.
Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)).
For purposes of the summary-judgment motion, the parties did not dispute
the circumstances of plaintiff's injury: while lawfully present in the
condominiums' garage, plaintiff was assaulted by someone trying to steal a
bicycle. The parties disputed whether she had been employed as a security guard
and, thus, had been injured while acting in the scope of her employment.
The condominium defendants did not have any security-related
employees. Instead, they retained GuardPro Security, Inc. (GuardPro) to
provide security guards and maintain security for the residents of the building.
GuardPro had been the security company for the condominium defendants for
several years before plaintiff's assault. The condominium defendants' vice
president described the typical services provided by GuardPro as including a
"concierge service for the lobby and periodically just checking exit doors
leading from the building and handling any emergencies that tenants may have
during the course of the evening." He testified "guards" would leave the lobby
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desk when "doing a round." Although GuardPro's president testified guards
were to remain at the lobby desk, in a memorandum issued about eleven months
before plaintiff's assault, he "remind[ed]" the "[g]uards" stationed at Ocean
Terrace "you are to be at the front desk unless you are on a patrol." He also
testified GuardPro was hired to maintain security.
About three months before the assault, plaintiff was hired by GuardPro.
In her complaint, plaintiff described GuardPro as a "security company" that
"employed" her. The Ocean Terrace condominium complex was the only site
where GuardPro had stationed her. Counsel for the condominium association
asked plaintiff during her deposition to describe her "duties and responsibilities
as a security guard at Ocean Terrace." With no objection to the form of the
question by her counsel, plaintiff responded:
What I understood [my] job obligations to be is [I was]
responsible for checking in any persons that came to the
front building to see somebody, they had to sign into a
book, . . . and let you know where they were going. [I
was] to make rounds, . . . like every hour of the parking
garage, the pool area. . . . make sure all doors were
secured, the outside of the facility. . . . [J]ust your
standard security patrol policy and procedures.
According to plaintiff, she was told about doing rounds in the parking garage
and the pool by the dayshift supervisor, GuardPro's president, and Carol
McGuire, who worked in the condominium defendants' management and was
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plaintiff's "report-to person." When asked about "doing rounds in the parking
garage and the pool," plaintiff testified:
that's part of doing security. . . . [W]e [are] there to,
. . . serve and protect. . . . [I]t's our responsibility to
make sure all those tenants are safe so, . . . you have to
make your rounds. . . . At that time it was summertime
so the pool was open. Security is responsible for
making rounds. Just viewing the pool, making sure that
they are secured at the end of the night, checking the
parking garage.
. . . [P]rior to me getting hired there they advised
me they were having a lot of problems with bikes
getting stolen, people, . . . breaking into the garage and
. . . different things. . . . [B]e on the lookout of
following up with maintenance, making sure
maintenance puts the ladders that they used during the
day away at night because, . . . people were breaking
into the garage stealing cars and assaulting people.
They had a lot of places to hide. So if you made the
observation of a ladder you would document it. So
when I made my rounds if I made any observations I
would document it, report it to [the dayshift
supervisor]. And I would also report it to Carol, Ms.
McGuire.
Before she was stationed at Ocean Terrace, plaintiff was advised the
cameras did not work and that inside the garage, tenants had had their bicycles
stolen, their cars stolen, and had been assaulted "by kids or young men getting
into the garage." Counsel for the condominium association asked plaintiff
during her deposition if she "under[stood] it was [her] role as a security officer
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to try and prevent these problems from occurring." With no objection to the
form of the question from her counsel, plaintiff responded: "I was advised from
Ocean Terrace management and GuardPro that, Deborah, you have to try to
make sure you stay vigilant, make your presence be known. It's our
responsibility as security to protect the tenants of Ocean Terra ce." She
understood that during her shift she was "to check the floors, . . . the parking
garage, . . . the pool area, the exits." She testified "[t]hey wanted us to patrol
the parking garage, check . . . the stair levels, check the exit doors" and it was
part of her "every day" and "normal routine" to patrol those areas.
On the evening of the assault, plaintiff was at work at Ocean Terrace when
she went to check the garage as part of her "normal rounds." She was "startled"
by two men. One man had cut the lock to the bicycle "storage area" in the
garage. The other "had something in his hand like he was going to attempt to
break . . . a window." One of the men ran by plaintiff and "punched [her] in
[the] face." The other "dropped the chains to the bike and . . . ran."
Plaintiff filed a complaint and an amended complaint, alleging the
property had "a dangerous and hazardous condition," specifically "inadequate
security devices, measures, and protocols." Plaintiff faulted the condominium
defendants for doing "nothing to increase security devices, measures, or
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protocols" and for failing "to adequately staff security guards," even though they
were aware of the "break-ins" and that cameras were not working properly.
The condominium defendants' third-party complaint against GuardPro
was dismissed with prejudice pursuant to a summary-judgment ruling.
Plaintiff's counsel conceded during oral argument on appeal that plaintiff had
applied for and received workers-compensation benefits based on the injuries
she had sustained in the assault. See Millison v. E.I. du Pont de Nemours & Co.,
101 N.J. 161, 174 (1985) (noting employees' entitlement to workers-
compensation benefits for injuries suffered "by accident arising out of and in the
course of employment").
Plaintiff served a report from Russell Kolins of the Kolins Security Group,
which Kolins described as "National Security Experts [and] Consultants."
According to Kolins, plaintiff worked as "a guard" at the condominiums and her
duties were "to control access to the lobby, signing guests in and out, and making
hourly patrols of the facility." Kolins described the assault as happening during
her "shift as a guard" at the condominiums and after she had "left the lobby to
start her patrol in the garage."
The condominium defendants moved for summary judgment. Judge Savio
granted that motion, giving his reasons on the record following oral argument.
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He found "based upon the plaintiff's testimony, . . . the plaintiff believed that
what she was doing at the time that she was injured was within the scope of her
employment . . . at GuardPro to provide security services for the Ocean Terrace."
In making that finding, the judge specifically referenced plaintiff's testimony
that "she was providing security services" and "thought it was within the scope
of her employment to be doing what she was doing at the time that she was
injured." He also found the condominium defendants had retained GuardPro to
provide security services, "although certain testimony . . . from the defendants"
could "be read . . . as suggesting that plaintiff's duties did not include patrolling
the area where the bicycles were located." Judge Savio concluded there was "no
genuine factual dispute about whether or not [plaintiff] was performing services
within the scope of the contract between GuardPro and Ocean Terrace." 2 He
granted summary judgment, finding "there [wa]s no duty on the part of a
landowner to . . . an employee of an independent contractor who [wa]s
performing services within the scope of h[er] contract."
On appeal, plaintiff argues the judge erred in granting the condominium
defendants summary judgment because material facts concerning whether she
was a security guard precluded summary judgment and because the
2
The parties did not provide us with a copy of the contract.
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condominium defendants could have been held liable for her injuries given that
she was not a security guard.
II.
We review a grant of summary judgment "de novo and apply the same
standard as the trial court." Rios v. Meda Pharm., Inc., 247 N.J. 1, 13 (2021).
"That standard mandates that summary judgment be granted 'if the pleadings,
depositions, answers to interrogatories and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact
challenged and that the moving party is entitled to a judgment or order as a
matter of law.'" Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of
Pittsburgh, 224 N.J. 189, 199 (2016) (quoting R. 4:46-2(c)). "An issue of
material 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.'" Grande v. St. Clare's Health Sys., 230 N.J. 1,
24 (2017) (quoting Bhagat v. Bhagat, 217 N.J. 22, 38 (2014)). When
determining if a genuine issue of material fact exists, the judge must determine
"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
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law." Brill, 142 N.J. at 533 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 251-52 (1986)); see also Petro-Lubricant Testing Lab'ys, Inc. v. Adelman,
233 N.J 236, 257 (2018). In our review, we owe "no special deference" to the
trial court's legal analysis. RSI Bank v. Providence Mut. Fire Ins. Co., 234 N.J.
459, 472 (2018). Whether a defendant owes a plaintiff a duty and the scope of
that duty are legal questions. Shields v. Ramslee Motors, 240 N.J. 479, 487-88
(2020).
A landowner generally has "a nondelegable duty to use reasonable care to
protect invitees against known or reasonably discoverable dangers." Rigatti v.
Reddy, 318 N.J. Super. 537, 541 (App. Div. 1999) (quoting Kane v. Hartz
Mountain Indus., Inc., 278 N.J. Super. 129, 140 (App. Div. 1994)). Although
that duty extends to an independent contractor's employee, "[t]he landowner is
under no duty to protect an employee of an independent contractor from the very
hazard created by doing the contract work." Sanna v. Nat'l Sponge Co., 209 N.J.
Super. 60, 67 (App. Div. 1986); see also Olivo v. Owens-Illinois, Inc., 186 N.J.
394, 406-07 (2006) (recognizing "exception to the requirement that premises be
made safe for an independent contractor when the contractor is invited onto the
land to perform a specific task in respect of the hazard itself"). The reason for
that exception to the landowner's general duty to protect invitees is that "the
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landowner may assume that the independent contractor and [its] employees are
sufficiently skilled to recognize the dangers associated with their task and adjust
their methods accordingly to ensure their own safety." Accardi v. Enviro-Pak
Sys. Co., 317 N.J. Super. 457, 463 (App. Div. 1999).
Thus, we have held a landowner is not liable when an independent
contractor's employee sustains an injury "as a result of the very work which the
employee was hired to perform." Dawson v. Bunker Hill Plaza Assocs., 289
N.J. Super. 309, 318 (App. Div. 1996). See Rigatti, 318 N.J. Super. at 543
(finding landowner not liable to roofer's employee who was injured when he fell
through the roof because "[t]he potential that a roofer may fall through any part
of an old roof is an inherent risk reasonably foreseeable to the worker"); Cassano
v. Aschoff, 226 N.J. Super. 110, 115 (App. Div. 1988) (landowner not liable
when employee of tree-removal contractor was struck by falling limb); but see
Nielsen v. Wal-Mart Store #2171, 429 N.J. Super. 251, 265 (App. Div. 2013)
(holding exception does not "cover a circumstance . . . where the land occupier
fails to warn of a hazardous condition that the independent contractor is not there
to repair"); Moore v. Schering Plough, Inc., 328 N.J. Super. 300, 306 (App. Div.
2000) (holding exception does not apply to security guard who was injured when
he slipped and fell on ice and snow he was not responsible for removing).
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Here, plaintiff does not contest the application of the exception to the
circumstances of this case if she were acting as a security guard. Instead, she
now contends a factual dispute exists as to whether she was acting as a security
guard. She makes that contention even though in her sworn testimony she
consistently and repeatedly identified herself as a security guard and described
her duties as those of a security guard; in her complaint she asserts she was
employed by a "security company"; and her security expert witness found she
had been working as "a guard," had a duty to make "hourly patrols of the
facility," and had been injured during her "shift as a guard" when she was on
"patrol in the garage." She bases that contention on isolated statements taken
out of context. For example, she relies on the condominium defendants' vice
president's reference to GuardPro3 "[p]roviding concierge service for the lobby."
But in the same sentence he testified about GuardPro personnel "periodically
. . . checking exit doors leading from the building and handling any emergencies
that tenants may have . . . ." He also testified "guards" would leave the lobby
desk when "doing a round." She focuses on GuardPro's president's testimony
about GuardPro's administrative responsibilities but ignores his testimony that
3
We assume the reference is to GuardPro. The question asked was "And what
service was that?" Plaintiff did not include a copy of the prior page of the
transcript, making it difficult to discern the context of the question.
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GuardPro was hired to maintain security and his memorandum reminding
"guards" stationed at the condominiums to remain at the front desk unless they
were "on a patrol."
The evidence establishes plaintiff was working as a security guard and
was acting in that role in the scope of her employment when she was assaulted.
Her own testimony compellingly confirms it. She clearly understood she was
working as a security guard and that part of her job was to patrol the garage ,
which she knew had been the site of previous thefts and assaults. The findings
of her security expert witness support that conclusion. The isolated comments
on which plaintiff now relies do not "present[] a sufficient disagreement to
require submission to a jury." Brill, 142 N.J. at 533 (quoting Anderson, 477
U.S. at 251-52). Here, the evidence "is so one-sided," ibid. (quoting Anderson,
477 U.S. at 252), that summary judgment was appropriate. With no genuine
issue of material fact concerning her employment as a security guard and that
she was acting in that capacity when she was assaulted, Judge Savio correctly
applied the independent-contractor exception to the general landowner duty
because plaintiff was engaged in "the very work which [she] was hired to
perform." Dawson, 289 N.J. Super. at 318.
Affirmed.
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