Respondent Superior — Master in control of the servant– Anthony v. One Sun Farms, LLC. January 2019 New Jersey Appellate Division unreported decision.

Anthony v. One Sun Farms, LLC, N.J. Super. App. Div. January 2019

Submitted by New Jersey Truck Crash Lawyer, Jeffrey Hark



South State is in the business of highway construction with its principle place of business in Cumberland County, New Jersey.  The company in in the business of  paving roads, and asphalt and sand production. It is registered with the United States Department of Transportation (DOT) because it owns and operates commercial vehicles incidental to its business operation. South State has a registration number with the DOT but not an interstate “operating authority” number because it is not a for-hire carrier in the business of transporting other companies’ cargo. It is owned in part by Chester Ottinger, Jr. and in part by the Ottinger Family Trust. Seashore is owned by Ottinger’s wife, Mary Lou Ottinger. It is in the business of producing and delivering asphalt and supplying trucking services. During the relevant period, Seashore frequently provided trucks to South State for use in construction jobs.

At the time of the tragic accident on November 4, 2013, South State required certain portable concrete highway barriers, stored at a site near another project, in order to complete the construction of an exit ramp off the Garden State Parkway. A South State employee contacted Seashore, requesting vehicles for hauling the barriers. As Seashore did not have enough trucks available for the job, Seashore contacted One Sun. One Sun, a nursery business owned by Newton B. Shimp III, owns several trucks and occasionally leases vehicles to Seashore or South State. Shimp agreed to provide the necessary trucks to South State. South State, after the accident, paid for the delivery of the barriers.

While making the delivery, one of One Sun’s part-time drivers, Greg R. Hoover, violated the company’s policy prohibiting passengers—his girlfriend accompanied him that morning. On his return trip, Hoover failed to stop at a traffic light, striking several vehicles in the intersection, causing injuries, and finally, landing on top of an overturned car that had been stopped at the red light. One of the occupants of that vehicle died. Hoover’s blood test results came back positive for marijuana. Although at the time of the accident he held a valid commercial driver’s license as well as a valid driver’s license, he had a history of driving infractions.

Obviously the insurance company for Hoover paid this claim for his negligence.  However, given the large number of claimants and the significant amount of the claims the independent’s limited insurance policy was not enough to fully compensate all claimants/  As a result, the plaintiffs attorneys were trying to have South State and Seashore be on note hook too. Factually, South State needed more trucks because they only own a few in their fleet for hauling their own materials and equipment.  South State then contacted their ‘other’ company, Seashore, to get more trucks to work on this locations.  Because Seashore regularly does not have enough trucks in its own fleet for this and all the other jobs they are working on at the same time it reach out to all the local ‘for hire’ independent contractors who own tractor/trailor or dump trucks. This process is a regular practice for these two companies.

Issue:  Does South State control Seashore under a master servant theory?

Plaintiffs contend as an additional basis for imposing liability that South State should be held liable under the doctrine of respondeat superior. The trial judge, to the contrary, held that South State exercised no control over Hoover or One Sun sufficient to be considered either’s employer.

The common law doctrine of respondeat superior imposes liability on an employer for the torts of his employees, even though the employer is not personally responsible. See Davis v. Devereux Found., 209 N.J. 269, 287 (2012). This doctrine has long been part of New Jersey law. Ibid. (citations omitted).

To establish an employer’s liability for the acts of his employee, a plaintiff must prove:

“(1) that a master-servant relationship existed and

(2) that the tortious act of the servant occurred within the scope of that employment.”

Carter v. Reynolds, 175 N.J. 402, 409 (2003).

The first prong focuses on the nature of the relationship between the parties. Ibid. If no master-servant relationship exists, no further inquiry is required. Ibid.; see also Wright v. State, 169 N.J. 422, 436 (2001) (noting that the doctrine of respondeat superior is necessarily based on the existence of a master-servant relationship).

It is well-established that “control by the master over the servant is the essence of the master-servant relationship on which the doctrine of respondeat superior is based.” Wright, 169 N.J. at 436 (citing New Jersey Prop. Liab. Ins. Guar. Ass’n v. State, 195 N.J. Super. 4, 8 (App. Div.), certif. denied, 99 N.J. 188 (1984)). New Jersey recognizes Restatement (Second) of Agency § 220 (Am. Law Inst. 1958) as the “touchstone for determining who is a servant.” Carter, 175 N.J. at 409.

Section 220 provides:

(1) A servant is a person employed to perform services in the affairs of another and who with respect to the physical conduct in the performance of the services is subject to the other’s control or right to control.

(2) In determining whether one acting for another is a servant or an independent contractor, the following matters of facts, among others, are considered:

(a) the extent of control which, by the agreement, 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 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. [Restatement (Second) of Agency § 220 (Am. Law Inst. 1958).]

“To prevent the issue of agency from reaching the jury, the owner must show by uncontradicted testimony that no employer-employee or principal- agent relationship existed, or, if one did exist, that the employee or agent had transgressed the bounds of his authority.” Harvey v. Craw, 110 N.J. Super. 68, 73 (App. Div. 1970) (citations omitted).

Analysis:  Did South State control Seashore Asphalt or One Sun and Hoover?

South State had no contract with One Sun, did not request Hoover as a driver, and did not have control over the means Hoover would employ to accomplish the task for which he was hired. One Sun, not South State, owned the truck that Hoover was driving when the accident occurred. One Sun retained the services of Hoover. Neither Hoover nor Shimp considered Hoover to be acting as South State’s employee. The record is devoid of proof that any master-servant relationship existed between South State and One Sun, or South State and Hoover. At the time of the accident, Hoover had already dropped off the highway barriers, and was in fact returning to One Sun’s facilities. Thus, there was no genuine issue of material fact to be considered by a jury on the question of respondeat superior. South State had no employer- employee or principal-agent relationship with either One Sun or Hoover.


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Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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