GERALD WARD VS. BAYONNE INDUSTRIES, INC. (L-2116-15, HUDSON 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NOT FOR PUBLICATION WITHOUT THE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-0335-17T2
GERALD WARD,
Plaintiff-Appellant,
v.
BAYONNE INDUSTRIES, INC.,
EAST JERSEY RAILROAD &
TERMINAL CO., and BAYONNE
TERMINAL WAREHOUSE CORP.,
Defendants-Respondents,
and
LEHIGH MARINE, LLC,
Defendant.
________________________________
Argued November 14, 2018 – Decided January 2, 2019
Before Judges Yannotti, Rothstadt and Gilson.
On appeal from Superior Court of New Jersey, Law
Division, Hudson County, Docket No. L-2116-15.
Bruce S. Gates argued the cause for appellant.
Christopher S. Byrnes argued the cause for respondents
(Law Office of John P. Cascio, attorneys; Christopher
S. Byrnes, on the brief).
PER CURIAM
Plaintiff appeals from an order of the Law Division dated July 21, 2017,
which granted summary judgment in favor of Bayonne Industries, Inc. (BI), and
an order dated September 5, 2017, which denied his motion for reconsideration
of the July 21, 2017 order. We affirm.
I.
This appeal arises from the following facts, as detailed in the record
presented to the trial court. BI is the owner of certain property on East 22nd
Street in Bayonne, known as the Bayonne Terminal. Since at least 1959, East
Jersey Railroad & Transportation Company (EJRR) has leased portions of the
property for railroad purposes. On December 30, 1983, BI and Bayonne
Terminal and Warehouse Corporation (BT) leased the property to IMTT-
Bayonne (IMTT). The leased premises "include[ed] the land and all
improvements thereon, tanks, lines, docks, machinery, equipment, and
appurtenances of every kind thereunto[,]" but not any of EJRR's assets.
Among other things, the lease required IMTT "to operate, administer and
conduct the business of a bulk storage terminal and related uses at the Bayonne
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Terminal in a prudent, safe and competent manner." The lease also required
IMTT to:
maintain the leased premises, and all improvements,
machinery, equipment and movables located thereon, in
good condition, and shall make at its own expense all
repairs of any kind, whether ordinary or extraordinary,
provided that any structural alterations to the
improvements of the leased premises shall be subject to
prior approval of the Lessor.
The lease further provided that IMTT "accepts the leased premises, and all
appurtenances and movables located thereon, in their present condition." The
lease term was five years, through December 31, 1988. Thereafter, BT merged
into BI.
On October 18, 1986, BI and IMTT leased a portion of the premises to
Cogen Technologies (CT) for use as a cogeneration facility. On December 30,
1988, BI and IMTT renewed their lease on the same terms and conditions,
through December 31, 1993. The parties did not provide the trial court with
copies of any written agreements between BI and IMTT extending their lease
after December 31, 1993.
On December 1, 2003, BI, IMTT, and Bayonne Plant Holding LLC (BPH),
Cogen Technologies's successor, amended the October 18, 1986 lease. Among
other things, the amendments granted BPH an option to lease certain additional
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property. On November 6, 2012, EJRR, BI, and Consolidated Rail Corporation
(Conrail) entered into an operating and premises use agreement, which allowed
Conrail to operate on BI and EJRR's property and trackage.
Plaintiff began working for IMTT on June 5, 2000, as a gate guard. IMTT
later promoted plaintiff to the so-called "labor pool," and eventually assigned
him to work as a bulk oil dock operator. In that capacity, plaintiff loaded and
unloaded oil from ships and barges. As part of his job, plaintiff was required to
wear a hard hat, safety glasses, gloves, a life vest, and safety shoes.
On May 18, 2013, plaintiff was working on a pier at the Bayonne
Terminal, where ships and barges load and offload oil. Plaintiff began walking
to the side of the pier to activate a pump. He tripped on a grate, stumbled head
first into a beam, and fell on his left knee. In his deposition, plaintiff testified
that the grate had been in the raised condition for at least six months before the
accident.
After plaintiff got up, he touched the side of his face and realized his ear
had been very badly injured. Plaintiff testified that his ear was caught by his
hard hat or the beam. Plaintiff reported he had been injured. An ambulance was
called, and plaintiff was taken to a hospital. Plaintiff later had surgery to remove
his ear, and a prosthetic ear was attached. Plaintiff had physical therapy for his
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neck and knees. He was also treated for depression. Plaintiff asserted a workers'
compensation claim and was awarded benefits. Eventually, plaintiff returned to
work at IMTT as a security guard. He testified that he could not return to his
previous position as a bulk oil dock operator because his prosthetic ear could be
lost or damaged if struck by debris, dirt, or oil.
In May 2015, plaintiff filed a complaint against defendants BI, BT, and
EJRR, seeking damages for the injuries he sustained in the workplace accident.1
He claimed defendants negligently maintained the pier, and his injury was
caused by their negligence. Thereafter, BI, BT, and EJRR filed answers to the
complaint, in which they denied liability.
In June 2017, BI, BT, and EJRR filed motions for summary judgment.
Plaintiff opposed the motions and filed a cross-motion to strike BI, EJRR, and
BT's answers because these defendants had asserted IMTT was the proper name
for BT.
In July 2017, the Law Division judge heard argument on the motions and
placed his decisions on the record. The judge granted EJRR's motion for
summary judgment because plaintiff did not oppose that motion. The judge also
1
Plaintiff also named Lehigh Marine, LLC as a defendant. The claim was later
dismissed pursuant to Rule 1:13-7 for lack of prosecution.
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granted BT's motion because BT had merged into BI. The judge then decided
that BI was entitled to summary judgment.
The judge noted that he was bound by this court's decisions in McBride v.
Port Authority of New York & New Jersey, 295 N.J. Super. 521, 525-27 (App.
Div. 1996), and Geringer v. Hartz Mountain Development Corp., 388 N.J. Super.
392, 400-02 (App. Div. 2006). Those cases hold that a commercial landlord
cannot be liable for injuries to the employee of a tenant resulting from a
dangerous condition on the premises when the tenant has exclusive possession
of the premises and the lease gives the tenant sole responsibility for maintenance
and repair.
The judge determined that, in light of his decision to grant BI's motion for
summary judgment, plaintiff's motion to strike the pleadings was moot. The
judge memorialized his decisions in orders dated July 21, 2017.
In August 2017, plaintiff filed a timely motion for reconsideration. On
September 5, 2017, the judge heard oral argument and placed his decision on
the record. The judge found no basis to reconsider his earlier order granting
summary judgment to BI. The judge entered an order dated September 5, 2017,
denying the motion. This appeal followed.
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II.
On appeal, plaintiff argues that the motion judge erred by finding that BI
did not owe him a duty of care with regard to the alleged dangerous condition at
the Bayonne Terminal. In support of his argument, plaintiff cites Monaco v.
Hartz Mountain Corp., 178 N.J. 401 (2004), and contends the judge erred by
relying upon our decisions in Geringer and McBride in granting summary
judgment to BI.
When reviewing an order granting a motion for summary judgment, we
apply the same standard that governs the trial court. Lee v. Brown, 232 N.J.
114, 126 (2018) (citing Steinberg v. Sahara Sam's Oasis, LLC, 226 N.J. 344,
349-50 (2016); Globe Motor Co. v. Igdalev, 225 N.J. 469, 479 (2016)). Rule
4:46-2(c) provides that the court shall grant summary judgment when the
evidence before the court, reviewed in a light favorable to the non-moving party,
shows "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."
To state a cause of action for negligence under New Jersey common law,
"a plaintiff must prove four core elements: '(1) [a] duty of care, (2) [a] breach of
[that] duty, (3) proximate cause, and (4) actual damages[.]'" Brunson v. Affinity
Fed. Credit Union, 199 N.J. 381, 400 (2009) (alterations in original) (quoting
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Polzo v. Cty. of Essex, 196 N.J. 569, 584 (2008)). The threshold inquiry of
whether the defendant owed the plaintiff a duty of care is generally a matter of
law. Carvalho v. Toll Bros. & Developers, 143 N.J. 565, 572 (1996) (quoting
Wang v. Allstate Ins. Co., 125 N.J. 2, 15 (1991)).
In Geringer, we noted that in McBride "we held that 'there is no landlord
liability' for personal injuries suffered by a commercial tenant's employee on the
leased premises 'due to a lack of proper maintenance or repair, when the lease
unquestionably places responsibility for such maintenance or repair solely upon
the tenant.'" Geringer, 388 N.J. Super. at 401 (quoting McBride, 295 N.J. Super.
at 522). Here, BI established that it leased the premises where plaintiff was
injured to IMTT, and under the lease, IMTT had sole responsibility to maintain
and repair the leased premises.
Plaintiff argues, however, that McBride and Geringer are inconsistent
with Monaco. In that case, the Court noted that a commercial landlord owes a
duty to business invitees to:
exercise reasonable care for [the] invitee's safety. That
[duty] includes making reasonable inspections of its
property and taking such steps as are necessary to
correct or give warning of hazardous conditions or
defects actually known to the landowner. The
landowner is liable to an invitee for failing to correct or
warn of defects that, by the exercise of reasonable care,
should have been discovered.
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[Monaco, 178 N.J. at 414-15 (citation omitted) (citing
Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 434
(1993)).]
In Monaco, a traffic sign situated on the abutting sidewalk of a
commercial property became dislodged, and the plaintiff was injured. Id. at 404.
We held that the property owner did not have a legal duty to the invitee because
the municipality owned and installed the traffic sign. Id. at 411. The Supreme
Court found, however, that the property owner owed a duty to the plaintiff "to
maintain . . . safe premises, including areas of ingress and egress[,]" and this
included the duty to inspect "and give warning of [the] dangerous condition."
Id. at 413.
The Court noted that the property owner had leased the premises to the
plaintiff's employer. Ibid. The plaintiff was injured on the property when the
sign became dislodged from the sidewalk the property owner had installed and
maintained. Id. at 413-14. The Court observed that the sign had been installed
to advance the interests of the property owner and its tenants, and under the
municipal ordinance, the landowner had responsibility for the sidewalk where
the sign was placed. Id. at 414.
Monaco does not, however, address the precise issue presented in this
case, which is whether a commercial landlord has a duty of care to invitees of
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its tenant, when the lease agreement between the landlord and tenant places sole
responsibility for ordinary maintenance and repair of the premises upon the
tenant. As the motion judge recognized, that issue was specifically addressed
in McBride and Geringer.
Plaintiff also contends that McBride and Geringer are inconsistent with
Hopkins, 132 N.J. at 434, 441, and Mayer v. Fairlawn Jewish Center, 38 N.J.
549, 555 (1962), which held that in certain circumstances, a commercial
landowner owes a non-delegable duty of care to its business invitees. However,
the facts in these cases are distinguishable from the facts in this case. In
Hopkins, the property owner did not relinquish exclusive possession of the
premises to the real estate broker, and therefore owed a duty of care to
prospective buyers. Hopkins, 132 N.J. at 431-32.
In Mayer, the Court held that even though the defendant hired a contractor
to perform repairs and the agreement provided that the contractor was
responsible for any injuries arising from the work, the defendant had a duty to
exercise reasonable care for the safety of persons using the property. Mayer, 38
N.J. at 555-56. However, the defendant in Mayer had not transferred exclusive
control of the property to the contractor, as occurred in this case. See ibid.A-0335-17T2
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We therefore reject plaintiff's contention that McBride and Geringer are
inconsistent with principles of law enunciated by our Supreme Court. The trial
court did not err by relying upon McBride and Geringer in deciding that BI was
entitled to summary judgment.
III.
Plaintiff further argues that the trial court should not have granted
summary judgment in favor of BI even if McBride and Geringer set forth the
correct rule to be applied in this case. Plaintiff contends BI failed to present
"conclusive evidence" that IMTT had exclusive possession of the demised
premises. Plaintiff asserts that the Bayonne Terminal is a "multi-employer"
facility. He also asserts that BI claimed a possessory interest in, and conducted
business at, the location.
Plaintiff's argument that BI did not establish IMTT's exclusive possession
of the accident site is meritless. It is undisputed that plaintiff was injured on a
pier at Bayonne Terminal. As noted previously, the 1983 lease between BI, BT,
and IMTT, states that the leased premises is for the "bulk liquid storage
terminal[,]" which included "all improvements thereon, tanks, lines, machinery,
equipment, docks, and appurtenances of all kind pertaining thereto[,]" but does
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not include the assets of EJRR. Under the lease, IMTT had exclusive possession
of the portion of the terminal where the accident occurred.
Moreover, the record does not support plaintiff's contention that BI had a
continuing duty to maintain the subject pier because the terminal is a "multi-
employer" facility. The record shows that the accident site was not included in
the portion of the premises leased to EJRR, BPH, or CT. There also is no
evidence that BI or BT maintained a possessory interest in the pier, or had
knowledge of the alleged dangerous condition. Plaintiff's supervisor testified
that he did not notice the raised grate until plaintiff's accident.
Therefore, the Law Division judge correctly determined there was no
genuine issue of material fact with regard to whether IMTT had exclusive
possession of the subject property and the sole responsibility to maintain and
repair the premises where plaintiff sustained his injuries. The judge correctly
determined that McBride and Geringer applied and precluded imposition of
liability upon BI.
IV.
Plaintiff also argues that the trial court erred by granting summary
judgment based on a thirty-five-year old lease between BI and IMTT, which was
renewed in 1988. Plaintiff further argues that the terms of the 1988 renewal are
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in conflict with the 1986 lease between BI, IMTT, and CT. Plaintiff contends
the 2003 amendment to the lease further complicates the matter.
According to plaintiff, these various documents fail to establish a "clear
tenancy and exclusive" right to possession as was the case in McBride and
Geringer. This argument lacks sufficient merit to warrant extended discussion.
R. 2:11-3(e)(1)(E). We note, however, that the relevant provisions of the 1983
lease give IMTT exclusive possession of the pier where plaintiff was injured,
and sole responsibility for its maintenance and repair. The lease was renewed
in 1988, and continued on a month-to-month basis after the date it expired on
December 31, 1993.
Plaintiff further argues that the subject lease violates the Statute of Frauds.
Plaintiff contends that under N.J.S.A. 25:1-1 (repealed 1996), an oral lease of
real property that extends beyond three years is unenforceable in law or equity.
Here, plaintiff is not a party to the lease agreement, and therefore cannot raise
the Statute of Frauds as a bar to its enforcement. See Restatement (Second) of
Contracts § 144 (Am. Law Inst. 1981); see also 4 Corbin on Contracts § 12.14
(rev. ed. 1997).
In any event, there is no merit to plaintiff's contention that the agreement
is unenforceable. As noted, the original lease was in writing, and IMTT
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remained in possession after the specified lease term. When a tenant whose
original term was for one month or longer holds over, the landlord's acceptance
of rent creates a month-to-month tenancy, in the absence of an agreement to the
contrary. N.J.S.A. 46:8-10; see also S.D.G. v. Inventory Control Co., 178 N.J.
Super. 411, 414 (App. Div. 1981).
In addition, the resulting month-to-month tenancy will generally be on
"the same terms [and conditions] as the original lease." Heyman v. Bishop, 15
N.J. Super. 266, 269 (App. Div. 1951) (quoting Trust Co. of N.J. v. Doherty,
117 N.J.L. 433, 435 (E. & A. 1937)). Thus, in this case, the record shows that
IMTT had an enforceable month-to-month tenancy of the premises where
plaintiff was injured.
Plaintiff further argues that McBride and Geringer are inconsistent with
principles of public policy. In support of this contention, plaintiff relies upon
Lyon v. Barrett, 89 N.J. 294 (1982), in which the Court stated:
Good reason exists for preserving the right of an injured
worker to sue a third person to the maximum extent that
such actions are consistent with workers' compensation
laws. The fixed dollar ceiling on benefits under the
workers' compensation laws are the result of a trade-off
of certain liability of the employer for reduced awards
for the employee. Injured workers are entitled not only
to recovery against employers under workers'
compensation laws, but also against third parties under
tort law.
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[Id. at 305 (citing 2A Larson, Workmen's
Compensation Law, § 72.50 (1976)).]
The issue presented in Lyon was "whether an employee who has recovered
a workers' compensation award against a corporate employer may maintain such
a negligence action for the same injuries against the individual who is the sole
shareholder of the corporation." Id. at 298. Therefore, plaintiff's reliance upon
Lyon is misplaced.
In any event, we are not convinced that the decisions in McBride and
Geringer are inconsistent with public policy. Those cases properly held that the
employee of a commercial tenant may not bring a claim against the landowner
for an injury arising from a dangerous condition of property, if the commercial
tenant has exclusive control of the premises and sole responsibility for
maintenance and repair.
Affirmed.
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