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Mavrikidis v. Petullo

153 N.J. 117, 707 A.2d 977 (1998)

INDEPENDENT CONTRACTORS; LIABILITY—A contractee may be liable for hiring an incompetent independent contractor, but not for hiring a negligent one. It does not have vicarious liability for a vehicular accident caused by the negligence of its independent contractor who was engaged as a mason.

A service station hired a masonry company to do asphalt work. The hot asphalt to be used for the job was loaded onto a dump truck belonging to the masonry company and driven by one of its principals. On the way to the service station, the dump truck struck a car and overturned, spilling the hot asphalt onto the car and its driver. The truck was found to be uninsured, lacking a right rear brake, and exceeding its registered weight by more than 850 pounds. The automobile driver sued the principals of the masonry company, the asphalt supplier, and the service station owner. A jury found the service station owner to have negligently engaged an incompetent contractor. The jury also determined that the service station retained control over the manner and means of doing the work, which included the inherently dangerous activity of transporting hot asphalt. The jury allocated 72% of the liability to the principals of the masonry company, 11% to the asphalt supplier, and 17% to the service station. Because of the service station’s vicarious liability, the judge amended the verdict to hold the service station liable for the 72% allocated to the principals of the masonry company in addition to its own 17%. The Appellate Division reversed the judgment against the service station, determining that there was insufficient evidence to find it vicariously liable for the negligence of the masonry company. It remanded the matter for a reallocation of damages solely between the principals of the masonry company and the asphalt supplier.

The general rule is that a principal is not liable for the negligence of an independent contractor. However, Majestic Realty Associates, Inc. v. Toti Contracting Co., 30 N.J. 425 (1959), sets out three exceptions. The first is that the principal is liable if the activity contracted for is a nuisance per se, which the Supreme Court found to be the equivalent of an inherently dangerous activity. Here, the Court refused to impose vicarious liability on the service station owner, stating that the accident arose only because of negligent driving and not out of any risk inherent in transporting hot asphalt. The Supreme Court found only ordinary negligence on the part of the truck driver in failing to use due care in the operation of a motor vehicle, and held that the service station was not responsible for the risks or dangers associated with the bad brakes or bad driving of its contractor. The second exception is those instances in which the principal controls the “manner and means” of the contractor’s work. The Supreme Court held this exception to be inapplicable, finding that the service station owner acted as a general supervisor of the renovation of the service station, but did not supervise the mason’s work on a daily basis. Majestic’s final exception applies when a principal hires an incompetent contractor. The Court ruled that negligent hiring could not apply with respect to an independent contractor because, by definition, the independent contractor’s work is not overseen or controlled by the principal. The Court also held that a claim of negligent hiring required showing that the contractor was incompetent or unskilled and that the principal knew or had reason to know of the incompetence. Since all evidence indicated that the masonry company was skilled and experienced, the Supreme Court declined to hold the service station directly or vicariously liable for the injuries. The Court stated that financial irresponsibility and lack of vehicle insurance is not the same as being an incompetent mason, and that the service station had no responsibility to check the driving records or insurance status of the masonry company’s principals. The Court added that the activity contracted for did not encompass the transportation of asphalt, which was the sole responsibility of the masonry company.

The Supreme Court concluded that absent proof that the service station knew of an enhanced risk of negligent driving or of the overloaded dump truck, it was not vicariously liable for the negligent driving of the masonry company. The Court held that the asphalt supplier had a common law duty not to overload the truck because it was reasonably foreseeable that overloading would cause injury to someone such as an automobile driver. The Supreme Court affirmed the Appellate Division ruling and ordered a reallocation trial, unless the other defendants agreed to a pro rata reallocation of the service station’s 17% share of liability.


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