Mavrikidis v. Petullo
| Decision Date | 11 March 1998 |
| Citation | 153 N.J. 117,707 A.2d 977 |
| Parties | Alice I. MAVRIKIDIS and Konstantinos Mavrikidis, her husband, Plaintiffs-Appellants and Cross-Respondents, v. Gerald PETULLO, Petullo Bros., Inc., Its Agents, Servants and/or Employees, Angelo Petullo, Geraldine Petullo, Ottavio Petullo and/or Gerald Petullo, trading as Petullo Bros., Inc., an alleged corporation and Clar Pine Servicenter, Its Agents, Servants and/or Employees, Defendants-Respondents and Cross-Respondents, and Newark Asphalt Corp., Its Agents, Servants and/or Employees, Defendant-Respondent and Cross-Appellant, and "ABC" (a fictitious name), Defendant. MOTOR CLUB OF AMERICA INSURANCE COMPANY as Subrogee of Konstantinos Mavrikidis and Motor Club of America Insurance Company, Plaintiffs-Appellants and Cross-Respondents, v. PETULLO BROTHERS, INC., Gerald Petullo a/k/a Jerry Petullo and Angelo Petullo, Geraldine Petullo, Ottavio Petullo and/or Gerald Petullo t/a Petullo Brothers, Inc., an alleged corporation and Clar Pine Servicenter, Defendants-Respondents and Cross-Respondents, and Newark Asphalt Corp., Defendant-Respondent and Cross-Appellant, and John Does 1 through 10 and ABC, DEF and GHI Corporations (fictitious names), Defendants. |
| Court | New Jersey Supreme Court |
David B. Glazer, Livingston, for plaintiffs-appellants and cross-respondents (Glazer & Luciano, attorneys; Mr. Glazer and Michael A. Luciano, of counsel and on the briefs).
Paul A. Spina, Roseland, for defendant-respondent and cross-appellant (Paul Seligman, attorney; Mr. Spina and Manuel J. Almedia, Jr., on the brief).
William T. Connell, Fairfield, for defendant-respondent and cross-respondent Clar Pine Servicenter (Dwyer, Connell and Lisbona, attorneys).
William J. Ewing, Montclair, submitted a brief on behalf of defendants-respondents and cross-respondents Gerald Petullo, Petullo Bros., Inc., its agents, servants and/or employees, Angelo Petullo, Geraldine Petullo, Ottavio Petullo and/or Gerald Petullo, trading as Petullo Bros., Inc., an alleged corporation.
The opinion of the Court was delivered by
In this case, we revisit the parameters of the vicarious liability doctrine as it pertains to whether a contractee may be vicariously liable for the negligence of its independent contractor under the three separate bases of liability delineated in Majestic Realty Associates, Inc. v. Toti Contracting Co., 30 N.J. 425, 153 A.2d 321 (1959). Furthermore, we consider the additional issue of an employer's direct liability for the negligent hiring of an independent contractor.
This case arose from an automobile accident that resulted in severe injury to plaintiff Alice Mavrikidis 1 (Mavrikidis or plaintiff), including second- and third-degree burns over twenty-one percent of her body. On September 11, 1990, the intersection collision occurred after defendant Gerald Petullo, 2 operating a dump truck registered to Petullo Brothers, Inc. (Petullo Brothers), drove through a red light, struck plaintiff's car, hit a telephone pole, and then overturned, spilling the truck's contents onto Mavrikidis's car. At the time of the accident, Gerald was transporting 10.99 tons of hot asphalt, which had been loaded onto the truck by Newark Asphalt Corporation (Newark Asphalt), to his job site at Clar Pine Servicenter (Clar Pine), a retail gasoline and automotive repair shop in Montclair.
Prior to the accident, Clar Pine's owner, Karl Pascarello (Pascarello), decided to renovate the station because he was switching gasoline brands from Getty to Gulf Oil. Those renovations included the installation of new pumps and canopies. Palisades Resources, a distributor for Gulf Oil, retained an architect for Clar Pine and supplied Pascarello with blueprints, new pumps, and canopies for the station. The canopies were installed by Fashion Design, a construction company engaged by Palisades Resources. Pascarello obtained the required approval from the Montclair zoning board. He purchased and assembled a metal frame that was placed around the gasoline pumps, assisted his father in some of the plumbing work, and installed a protective device necessary to make the pump island explosion-proof. He also hired a contractor to do the electrical work.
Because Pascarello had no experience in the construction or paving business, he hired Gerald's father, Angelo Petullo, to perform the asphalt and concrete work as part of the renovation of his service station. Pascarello had known Angelo since 1972 and, prior to hiring him, Pascarello examined other paving jobs that Angelo had completed. Pascarello hired Angelo by verbal agreement to participate in the station's renovations based on Angelo's reputation as an excellent mason and, to a lesser extent, the debt owed Clar Pine under the Petullo Brothers' account. Over the years, Angelo and Gerald had charged gas and small repairs to their company account. In exchange for the asphalt work, both parties orally agreed that the Petullos would receive a $6,800 credit toward a $12,000 to $20,000 debt that Petullo Brothers had accumulated.
At trial, there was conflicting testimony whether Angelo or Gerald operated Petullo Brothers, a corporation that had been dissolved in 1978 by the New Jersey Secretary of State for nonpayment of annual fees. Although Angelo and Gerald both testified that Gerald had been running the company since 1982 and that Angelo formally transferred ownership to his son in 1989, Pascarello testified that he considered Angelo to be the company head and Gerald to be an employee who worked "hand in hand" with his father. Furthermore, a police officer testified that, at the accident site, Angelo identified himself as the owner of Petullo Brothers. The jury concluded that Pascarello hired Angelo and Petullo Brothers to complete the asphalt and concrete work at the Clar Pine job site.
The Petullos supplied the labor, equipment, concrete, and most of the asphalt needed for the job, until Angelo "ran out of money" in the midst of the renovations. As a result, Pascarello provided him with a blank check made out to Newark Asphalt to purchase the asphalt on the day of the accident. Pascarello testified that he supplied Angelo with a check because he "[was] the type of person you don't give cash to." Nevertheless, it is undisputed that Pascarello was not involved in supervising the Petullos' work on a daily basis. Other than general supervision and periodic consultation, Pascarello's limited participation in the asphalt work consisted of payment for three loads of asphalt, including the one involved in this accident, as well as his direction to lay the asphalt in front of the service station's bay doors first to enable him to continue his automotive repairs while the gas station was out of service. As part of its regular course of business, Clar Pine repaired cars and small trucks. During completion of the paving job, Clar Pine remained open for business, servicing cars but not selling gasoline.
On the morning of the accident, Gerald ordered twenty tons of asphalt from Newark Asphalt's plant. The employees of Newark Asphalt loaded 10.99 tons of asphalt, at a temperature between 300 and 310 degrees Fahrenheit, onto Gerald's truck and 9 tons onto a second truck. The vice-president of the asphalt supplier, Michael Manno, testified that its workers did not physically inspect its customers' vehicles to ensure their ability to carry a given load. Rather, he explained, Newark Asphalt is "like a grocery store." Its employees "are not policemen, we don't inspect anything." If the customer is able to pay, the customer will receive what is ordered.
The employees at Newark Asphalt, however, do conduct visual inspections of a truck to determine whether it can accommodate the requested load. According to Manno's testimony, such a visual inspection of Gerald's truck would lead to the conclusion that it could haul up to fifteen tons of asphalt in its truck bed. Yet, at the scene of the accident, Gerald admitted to the responding police officer that he was unable to stop at the red light because of the load on his truck.
The police also learned at the scene of the accident that Gerald's driver's license had been suspended. The officer issued two summonses to Gerald--one for failure to stop at a red light and the other for driving while on the suspended list. Shortly after the collision, Angelo arrived on the scene to assist in cleaning up the asphalt before it cooled and stuck to the roadway. The officer issued three summonses to Angelo, whose license had also been suspended--one for driving while suspended, one for having no vehicle insurance, and one for allowing an unlicensed driver (Gerald) to operate a vehicle. At trial, the officer explained that he issued the second and third tickets to Angelo because, as noted before, he identified himself as the owner of Petullo Brothers. Although Gerald and Angelo dispute their speaking with the officer at the scene of the accident, it was stipulated at trial that on February 26, 1991, both Petullos pleaded guilty in Bloomfield Municipal Court to driving while on the suspended list on September 11, 1990. At that same municipal hearing, Gerald also pleaded guilty to disregarding a traffic signal and failing to have insurance on the date of the accident. Furthermore, Petullo Brothers, through Gerald, pleaded guilty to operating an unsafe and overweight vehicle on September 11, 1990.
As a result of an inspection of Gerald's truck, conducted two days after the accident by a member of the commercial vehicle inspection unit of the Essex County Police Department, two weight violations were uncovered: (1) the truck's weight at the time of the accident exceeded the gross vehicle weight (GVW) of 32,000 pounds, for which it was registered with the Division of Motor Vehicles, by 866 pounds 3 and (2) the combined weight of the cargo plus the axle exceeded the statutory limit by 5,106 pounds. 4 The...
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...of doing the work, or direction of the employees of the independent contractor may permit vicarious liability." Mavrikidis v. Petullo , 153 N.J. 117, 135, 707 A.2d 977 (1998). Where there is control, the party who hired the contractor is liable for the contractor's negligence. This vicariou......
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...("[W]e recognize § 220 of the Restatement (Second) of Agency as the touchstone for determining who is a servant."); Mavrikidis v. Petullo, 707 A.2d 977, 984 (N.J. 1998); MacDougall v. Weichert, 677 A.2d 162, 190-191 (N.J. 1996) (Pollock, J., dissenting) ("Traditionally, this Court has adopt......
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...that a lack of insurance due to financial irresponsibility is not relevant to the competence of the employee. See Mavrikidis v. Petullo, 153 N.J. 117, 707 A.2d 977, 988 (1998) (“A lack of insurance or lack of financial responsibility is not the equivalent or a category of incompetence,” not......
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In re Fedex Ground Package System Inc.
...recognize § 220 of the Restatement (Second) of Agency as the touchstone for determining who is a servant.”); Mavrikidis v. Petullo, 153 N.J. 117, 707 A.2d 977, 984 (1998); MacDougall v. Weichert, 144 N.J. 380, 677 A.2d 162, 190–191 (1996) (Pollock, J., dissenting) (“Traditionally, this Cour......