Write an Analysis of the case of Coker v. Pershad, New Jersey Superior Court, Appellate Division, Docket No. A-4679-11T1 (2013), using the FIRAC (Facts, Issues, Rules, Application, Conclusion) method.

THE CASE:

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Docket No. A-4679-11T1

NICHOLAS COKER, Plaintiff-Appellant,

v.

TERRENCE PERSHAD, FIVE STAR SERVICE, LLC, Defendants,

and

AAA NORTH JERSEY, INC., Defendant-Respondent.

April 2, 2013

Before Judges Sapp-Peterson and Haas.

PER CURIAM

Plaintiff Nicholas Coker appeals the decision of the Law Division granting defendant AAA North Jersey, Inc.'s (AAA's) motion for summary judgment. After reviewing the record in light of the contentions advanced on appeal, we affirm substantially for the reasons set forth by Judge Lisa Perez Friscia in her written opinion.

I.

There is no dispute as to the material facts. Plaintiff had spent part of the evening of January 10, 2009 in a bar in Hoboken. At approximately 2:30 a.m., he got into a car operated by Tonya Alvarado. Arnoldo Aranda, Alvarado's boyfriend, was also a passenger. On the way to plaintiff's house, Alvarado lost control of the car, struck a highway divider and several tires on the car went flat. Alvarado called AAA for emergency road service.

In response to that call, a flat-bed tow truck driven by defendant Terence Pershad arrived at the scene. The truck was owned by defendant Five Star Auto Service (Five Star). Pershad was one of Five Star's employees.

Pershad let the group sit in the cab of his truck while he put Alvarado's car up on the flat-bed. After he completed this task, Pershad asked plaintiff to get out of the cab of his truck. However, plaintiff demanded that Pershad drive him home. Plaintiff did eventually get out of the cab, but he then jumped up on the back of the flat-bed. Pershad repeatedly asked plaintiff to get off the truck, but plaintiff refused.

According to plaintiff, Pershad then went into the cab of the truck and returned with a tire iron, which he swung at plaintiff. Plaintiff jumped off the truck and Pershad began to drive away. Plaintiff ran after the truck, claiming Pershad had taken his cell phone. When Pershad slowed down to make a turn, plaintiff was able to get back onto the flat-bed and he began banging on the window of the cab. At that point, Pershad stopped the truck and threw plaintiffs cell phone out the window. As plaintiff got off the flat-bed to retrieve his phone, Pershad assaulted him with a knife.

Five Star is an independent, incorporated entity which performs towing and automobile repair services for AAA pursuant to a written Emergency Road Service Agreement (Agreement). Paragraph three of the Agreement states that "[Five Star] shall not at any time during the term of the Agreement represent, either directly or indirectly in any manner whatsoever, that it is an agent of AAA. Five Star acknowledges that it is an INDEPENDENT CONTRACTOR."

Five Star provides auto repair services to other customers. The Agreement required Five Star to maintain its own liability insurance and pay its expenses for its employees. Five Star determined how much to pay its drivers and other employees, controlled what hours they worked, and how that work was performed.

Five Star also controls who it hires and fires, though the Agreement requires Five Star to conduct criminal background checks and annual driving record checks on any drivers who would be sent out on AAA service calls. Michael Montelblano, Five Stars owner, certified to AAA that these pre-employment background checks were performed. Montelblano hired Pershad, who provided three references at the time of his application. Montelblano called two of the references, who had no negative comments concerning Pershad. He was unable to reach the third reference. However, Montelblano did not conduct a criminal background check. After the incident with plaintiff, Five Star learned Pershad had a prior conviction for a drug offense in New Jersey and a prior assault conviction in Connecticut.

On the basis of these facts, Judge Perez Friscia determined Pershad was an employee of Five Star, not AAA, and that Five Star was an independent contractor. The judge concluded AAA was "not responsible for the alleged negligence of its independent contractor, defendant Five Star, in hiring Mr. Pershad." The judge subsequently denied plaintiff's motion for reconsideration. This appeal followed.

II.

On appeal, plaintiff argues the judge erred in granting AAA summary judgment and that she failed to adequately consider all the factors necessary to determine whether Five Star was an independent contractor that was responsible for the actions of its own employees. We disagree.

It is well-settled that when a person engages an independent contractor to do work, he is not vicariously liable for the negligent acts of the contractor in the performance of the contract. The immunity of the principal who hires an independent contractor rests on the distinction between such a contractor and an employee. The important difference between an employee and an independent contractor is that one who hires an independent contractor has no right of control over the manner in which the work is to be done. It is to be regarded as the contractor's own enterprise, and he, rather than the employer is the proper party to be charged with the responsibility for preventing the risk, and administering and distributing it.

There are, however, three exceptions to the general rule that principals are not liable for the actions of the independent contractors they hire: (1) where the principal retains control of the manner and means of doing the work subject to the contract; (2) where the principal engages an incompetent contractor; or (3) where the activity constitutes a nuisance. Here, plaintiff relies on all three of these exceptions in arguing the judge erred in finding AAA was not liable for the actions of Five Star and Pershad.

As to the first exception, plaintiff argues that AAA controlled the means and method of the work performed by Five Star. We disagree. The factors that a court must consider to determine whether a principal maintains the right of control over an individual or a corporation claimed to be an independent contractor are set forth in Section 220 of the Restatement of Agency as follows:

(a) the extent of control that the master may exercise over the details of the work;

(b) whether or not the one employed is engaged in a distinct occupation or business;

(c) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;

(d) the skill required in the particular occupation:

(e) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work;

(f) the length of time for which the person is employed;

(g) the method of payment, whether by the time or by the job;

(h) whether or not the work is a regular part of the regular business of the employer;

(i) whether or not the parties believe they are creating the relation of master and servant; and

(j) whether the principal is or is not in business.

Applying these factors to the facts of this case, it is clear AAA did not control the manner and means of Five Star's work. The Agreement specifically stated Five Star was an independent contractor. Five Star purchased its own trucks and any other necessary equipment. AAA assigned jobs to Five Star and Five Star completed the work without any further supervision by AAA. Five Star chose the employees to send on towing calls and the trucks and equipment the employees would use.

Five Star was also in business for itself and performed auto repair services for principals and customers other than AAA. Five Star hired and fired its own employees, with very little input or oversight from AAA. Montelblano testified at his deposition that AAA had "no input into who Five Star hires and fires." All AAA could do was complain to Five Star about one of its employees; it was up to Five Star whether to fire that employee. While AAA required Five Star to do a criminal background check on its employees, it was still up to Five Star to do so and, assuming the employee was cleared, it made the decision as to which employees it would hire.

Five Star's trucks had its company logo on their sides and Five Star employees wore shirts with this logo as well. The mere fact Five Star trucks and employee uniforms also had AAA emblems did not mean AAA controlled the manner in which Five Star and its employees performed their work or that Five Star was "holding itself out" as being one and the same as AAA. It is also not relevant that AAA required Five Star to tow its members to their home or the place of repair or required Five Star to be available to service AAA members when it contacted the company and to advise AAA when a job had been completed. These contractual provisions did not give AAA the right to direct the manner in which the work of Five Star was accomplished.

Plaintiff also argues Five Star should be considered to be controlled by AAA because "providing towing and other roadside assistance is arguably the focus of the regular business of AAA." Plaintiff provides no factual support for this contention. AAA is an automobile club that provides a wide variety of services to its members. It contracts with numerous service providers, such as gas stations, motels and other businesses, to provide these services. Thus, AAA is not solely in the towing business.

Moving to the second exception, plaintiff argues Five Star was an "incompetent contractor." However, plaintiff provided no evidence that Five Star was incompetent or unskilled to perform the job for which it was hired; that the harm caused to plaintiff arose out of that incompetence; and that AAA knew or should have known of the incompetence. AAA had used Five Star to provide towing services for approximately eight years and there is nothing in the record to demonstrate it lacked the skill needed to provide these services.

Plaintiff argues Five Star was "incompetent" because it only checked Pershad's references and did not perform a criminal background check. There is, however, nothing in the record to support a finding that AAA knew or should have known Five Star did not comply with this provision of the contract. Five Star's owner certified that such checks were being performed. Under these circumstances, we cannot conclude Five Star was an "incompetent contractor" thereby making AAA liable for its actions.

Finally, the third exception is also inapplicable. Plaintiff argues the provision of towing services is a "nuisance" because the provision of towing services late at night is an "inherently dangerous activity." We disagree. An activity is considered to be "inherently dangerous" only if it is an activity which can be carried on safely only by the exercise of special skill and care, and which involves grave risk of danger to persons or property if negligently done. The term 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.

Towing services plainly do not fall under this definition. These services are regularly and routinely provided to the motoring public at all hours of the day and night. The "particular circumstances" of this unique case, which resulted in plaintiff allegedly being assaulted by Pershad, were completely unforeseen and certainly not a routine part of the work performed by an independent towing company. Thus, we conclude there is nothing "inherently dangerous" about this activity that would impose a duty upon AAA to take any special precautions to protect the customers served by Five Star and its other independent towing service operators.

In sum, we perceive no basis to disturb Judge Perez Friscia's conclusion that AAA could not be held liable for the actions of Five Star, its independent contractor, under the circumstances of this case.

Affirmed.