SUPREME COURT OF THE UNITED
`STATES
`DOCKET NO.: 17-6375
`
`METODI DONCHEV AND FAITH
`DONCHEV, HIS WIFE,
`
`Plaintiff-petitioner,
`
`V.
`
`DENNIS DESIMONE, AND JANE
`DOE DESIMONE, DENNIS
`DESIMONE'S WIFE, JOHN DOE
`RESPONSIBLE PARTY,
`INDIVIDUALLY, JOINTLY,
`SEVERALLY, AND/OR IN THE
`ALTERNATIVE,
`
`Defendants-respondents.
`
`APPENDIX OF RESPONDENT DENNIS DESIMONE
`
`METHFESSEL & WERBEL, ESQS.
`2025 Lincoln Highway, Ste 200
`P.O. Box 3012
`Edison, New Jersey 08818
`(p) (732) 248-4200
`(f) (732) 248-2355
`thornton@methwerb.com
`Attorneys for Dennis DeSimone
`Our File No. 63074 ELT
`
`AMANDA J. SAWYER, ESQ.
`On the Brief
`
`EDWARD L. THORNTON, ESQ.
`Of Counsel and On the Brief
`
`

`

`CONTENTS OF APPENDIX
`
`September 6, 2011 order. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Ra001
`April 26, 2016 order. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Ra006
`July 24, 2012 order. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Ra010
`July 24, 2012 letter from Appellate Division. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Ra011
`September 24, 2012 opinion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Ra012
`October 11, 2012 letter from Appellate Divison. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Ra024
`October 15, 2012 motion filing notice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Ra025
`November 13, 2012 order. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Ra026
`April 26, 2013 order. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Ra027
`April 29, 2016 order. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Ra028
`July 12, 2013 order. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Ra029
`November 22, 2013 order (pertaining to Petitioner). . . . . . . . . . . . . . . . . . . . . . . . . . . . Ra030
`November 22, 2013 order (pertaining to Respondent). . . . . . . . . . . . . . . . . . . . . . . . . . .Ra031
`March 24, 2014 order (pertaining to Respondent). . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Ra035
`March 24, 2014 order (pertaining to Petitioner). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Ra036
`May 20, 2014 letter from Appellate Division to Petitioner. . . . . . . . . . . . . . . . . . . . . . .Ra038
`May 20, 2014 letter from Appellate Division to counsel for Respondent. . . . . . . . . . . .Ra039
`July 25, 2014 order. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Ra040
`October 20, 2014 order. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Ra056
`December 5, 2014 order (pertaining to Petitioner). . . . . . . . . . . . . . . . . . . . . . . . . . . . . Ra059
`December 5, 2014 order (pertaining to Respondent). . . . . . . . . . . . . . . . . . . . . . . . . . . .Ra060
`March 20, 2015 order. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Ra063
`May 8, 2015 order. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Ra065
`August 4, 2015 order. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Ra067
`August 21, 2015 order. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Ra074
`July 5, 2017 opinion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Ra084
`
`

`

`METHFESSEL & WERBEL, ESQS.
`3 Ethel Road, Suite 300
`PO Box 3012
`Edison, New Jersey 08818
`(732) 248-4200
`+1(732) 248-2355
`mailbox@methwerb, corn
`Attorneys for Dennis DeSimone
`Our File No. 63074 ELT
`
`METODI DONCHEV AND FAITH
`DONCHEV, HIS WIFE,
`
`Plaintiff,
`
`Vo
`
`DENNIS DESIMONE, AND JANE
`DOE DESIMONE, DENNIS
`DESIMONE’S WIFE, JOHN DOE
`RESPONSIBLE PARTY,
`INDIVIDUALLY, JOINTLY,
`SEVERALLY, AND/OR IN THE
`ALTERNATIVE,
`
`Defendants.
`
`SUPERIOR COURT OF NEW JERSEY
`LAW DIVISION:GLOUCESTER
`COUNTY
`DOCKET NO.: GLO-L-956-05
`
`Civil Action
`
`ORDER FOR N~AL ON ALL
`
`THIS MATTER having been brought before the Court on the
`
`Motion of Methfessel & Werbel, attorneys for defendant Dennis
`
`DeSimone, for an Order for a new trial on all issues, and the Court
`
`having considered the matter and for good cause shown;
`
`c_~ i 2_~ i ~
`
`IT IS on this C day of--,~,Lf J~ 2011;
`
`ORDERED -. at a new trial
`
`"
`
`" the above
`
`matter; ~---~-~ ~v~ t Q
`
`Ra001
`
`

`

`ORDERED that a copy of this Order be served on all counsel
`
`within ~ days of the date hereof.
`
`(~Opposed
`( ) Unopposed
`
`Ra002
`
`

`

`METHFESSEL & WERBEL, ESQS.
`3 Ethel Road, Suite 300
`PO Box 3012
`Edison, New Jersey 08818
`(732) 248-4200
`+1(732) 248-2355
`mailbox@methwerb.com
`Attorneys for Dennis DeSimone
`Our File No. 63074 ELT
`
`METODI DONCHEV AND FAITH
`DONCHEV, HIS WIFE,
`
`Plaintiff,
`
`Vo
`
`DENNIS DESIMONE, AND JANE
`DOE DESIMONE, DENNIS
`DESIMONE’S WIFE, JOHN DOE
`RESPONSIBLE PARTY,
`INDIVIDUALLY, JOINTLY,
`SEVERALLY, AND/OR IN THE
`ALTERNATIVE,
`
`Defendants.
`
`SUPERIOR COURT OF NEW JERSEY
`LAW DIVISION: GLOUCESTER
`COUNTY
`DOCKET NO.: GLO-L-956-05
`
`Civil Action
`
`O~ REMITTITUR
`
`THIS MATTER having been brought before the Court on the
`
`Motion of Methfessel & Werbel, attorneys for defendant Dennis
`
`DeSimone, for an Order for remittitur, and the Court having considered
`
`the matter and for good cause shown; ~£~ k ~ c t ~, ~
`
`ITISonthis ~dayof ~2011;
`
`ORDERED that a rem~
`
`be enter~a_.t.t~E-~ffid~ ~,~’Nr~ . - .~it is further ~,~D,~ ~, ~
`
`Ra003
`
`

`

`ORDERED that a copy of this Order be served on all counsel
`
`within
`
`days of the date hereof.
`
`(~) Opposed
`( ) Unopposed
`
`Ra004
`
`

`

`Faith Doncheva
`800 Hessian Ave.
`National Park, N.J.08063
`
`SUPERIOR. COURT
`Law Division Gloucester
`Donchev v. DeSimone
`GLO-L=956-05
`
`THIS MATTER having come before the court on this_~ day of
`
`and for .good cause shown;
`
`IT IS ORDERED THAT the plaintiff’s claims for wro_._n~_fi-death-a~--survivorship
`
`Tt/at flow fi’om the plaintilT’J_deafll~roceed to trial on Atny-of-
`
`( )unopposed
`
`4
`
`Ra005
`
`

`

`A-395-11T3
`
`ORDER ON MOTION
`
`FILED
`APPELLATE DIVIS ION
`April 26, 2012
`
`CLERK
`
`METODI DONCHEV & FAITH DONCHEV
`VS
`DENNIS DESIMONE, AND JANE DOE
`DESIMONE, DENNIS DESIMONE’S WIFE
`
`SUPERIOR COURT OF NEW JERSEY
`APPELLATE DIVISION
`A-000395-11T3
`DOCKET NO.
`MOTION NO.
`M-004081-II
`BEFORE
`PART G
`ARIEL A. RODRIGUEZ
`JUDGE(S):
`VICTOR ASHRAFI
`
`MOTION FILED: 03/06/2012
`ANSWER(S)
`03/21/2012
`FILED:
`
`BY:
`BY:
`
`DENNIS DESIMONE
`FAITH DONCHEV
`
`SUBMITTED TO COURT: March 26, 2012
`
`ORDER
`
`THIS MATTER HAVING BEEN DULY PRESENTED TO THE COURT, IT IS, ON THIS
`18th day of April, 2012, HEREBY ORDERED AS FOLLOWS:
`
`MOTION BY APPELLANT
`
`MOTION TO SUPPRESS BRIEF OF
`RESPONDENT
`
`SUPPLEMENTAL:
`
`GRANTED
`
`The motion to suppress the respondent’s brief is granted. However,
`if respondent files a conforming brief no later than May 29, 2012, the
`court will reconsider this decision.
`
`In order to comply, the brief must meet all requirements set by ~ule
`2:6-1. A copy of the rule is attached hereto.
`
`In addition, plaintiff’s brief must:
`
`(i) adhere to a 65-page restriction.
`(2) present a concise statement of
`facts limited to the evidence admitted
`at trial or at any hearings before the
`trial judge and must cite to the record
`in reciting the evidence that appellant
`is relying upon.
`(3) must not include any comments about
`the conduct of adversary counsel that are
`
`Page 1 of 4
`
`Ra006
`
`

`

`not part of the trial record.
`(4) appellant may not present arguments
`in her brief challenging that trial
`court’s ruling excluding evidence in
`support of a wrongful death claim and
`requesting reinstatement of that claim.
`That is so because appellant did not
`file a notice of cross-appeal.
`
`In addition, references to an affidavit of a Dr. ZeBranek may not be
`made as part of the trial evidence. That affidavit may only be included
`in the record on appeal if it was part of the trial court’s file and only
`if a relevant issue is presented on appeal as to a ruling of the trial
`court with respect to the affidavit;
`
`Se___~e M-4083-II.
`
`RULE 2:6. Appendices; Briefs; Transcript
`2:6-1. Preparation of Appellant’s Appendix; Joint Appendix;~
`Contents
`
`(a) Contents of Appendix.
`¯ (1) Required Contents. The appendix prepared by the
`appellant or jointly by the appellant and the respondent shall
`contain (A) in civil actions, the complete pretrial order, if any, and
`the pleadings; (B) in criminal, quasi-criminal or juvenile
`delinquency actions, the indictment or accusation and, where
`applicable, the complaint and all docket entries in the proceedings
`below; (C) the judgment, order or determination appealed from or
`sought to be reviewed or enforced, including the jury verdict sheet,
`if any; (D) the trial judge’s charge to the jury, if at issue, and any
`opinions or statement of findings and conclusions; (E) the
`statement of proceedings in lieu of record made pursuant to R.
`2:5-3(f); (F) the notice or notices of appeal; (G) the transcript
`delivery certification prescribed by R. 2:5-3(e); (H) any
`unpublished opinions cited pursuant to R. 1:36-3; and (I) such
`other parts of the record, excluding the stenographic transcript, as
`are essential to the proper consideration of the issues, including
`such parts as the appellant should reasonably assume will be relied
`upon by the respondent in meeting the issues raised. If the appeal
`is from a summary judgment, the appendix shall also include a
`statement of all items submitted to the court on the summary
`judgment motion and all such items shall be included in the
`
`Page 2 of 4
`
`Ra007
`
`

`

`appendix, except that briefs in support of and opposition to the
`motion shall be included only as permitted by subparagraph (2) of
`this rule.
`
`¯
`
`(2) Prohibited Contents. Briefs submitted to the trial court shall
`not be included in the appendix, unless either the brief is referred
`to in the decision of the court or agency, or the question of
`whether an issue was raised in the trial court is germane to the
`appeal, in which event only the material pertinent to that issue
`shall be included. A document that is included in appellant’s
`appendix shall not also be included in respondent’s appendix unless
`appellant’s appendix includes only a portion of the document and
`the complete document is required for a full understanding of the
`issues presented. If the same document has been annexed to more
`than one pleading or motion filed in the trial court, the document
`shall be reproduced in the appendix only with the first such
`pleading or motion and shall be referred to thereafter only by
`notation to the appendix page on which it appears.
`(b) Form. Documents included in the appendix shall be abridged by
`omitting all irrelevant or formal portions, with asterisks being used to
`indicate omissions. The filing date of each included paper shall be
`stated at the head of the copy as well as its subject matter (e.g.,
`Pretrial Order, Notice of Appeal). Each page shall be numbered
`consecutively followed by the letter "a" to indicate the appendix (e.g.,
`la, 2a, etc.).
`(c) Binding; Table of Contents. The appendix may be bound with
`the brief or separately, into volumes containing no more than 200
`sheets each. If bound with the brief, it shall follow the brief, but there
`shall be a single table of contents of the brief and appendix. If bound
`separately it shall be prefaced with a table of contents. The table of
`contents shall indicate the initial page of each document, exhibit or
`other paper included, and the pages of the stenographic record at
`which each exhibit was marked for identification and was offered into
`evidence. Attachments to a document by way of affidavits, exhibits or
`otherwise shall each be separately identified in the table of contents
`and the initial page of each such attachment noted therein. If there
`are multiple volumes of the appendix, each volume shall contain a full
`table of contents and shall specify on its cover the appendix pages
`included therein.
`
`Page 3 of 4
`
`Ra008
`
`

`

`(d) 3oint Appendix. Whenever possible counsel shall agree upon a
`joint appendix, which shall be bound separately. The cost thereof
`shall be apportioned between them.
`
`FOR THE COURT:
`
`L-000956-05 GLOUCESTER
`ORDER - REGULAR MOTION
`CLD
`
`ARIEL A. RODR~GUEZ, P.J.A.D.
`
`Page 4 of 4
`
`Ra009
`
`

`

`A-395-11T3
`
`FILED
`APPELLATE DIVISION
`July 24, 2012
`
`ORDER ON MOT
`
`[ON
`
`CLERK
`
`METODI DONCHEV & FAITH DONCHEV
`VS
`DENNIS DESIMONE, AND JANE DOE
`DESIMONE, DENNIS DESIMONE’S WIFE
`
`PERIOR COURT OF NEW JERSEY
`SU
`PELLATE DIVISION
`A~
`CKET NO.
`A-000395-11T3
`D(
`*TION NO.
`M-006658-II
`M(
`:FORE
`PART G
`BI
`J[
`ARIEL A. RODRIGUEZ
`IDGE(S):
`VICTOR ASHRAFI
`
`MOTION FILED: 06/25/2012
`ANSWER(S)
`07/02/2012
`FILED:
`
`BY:
`BY:
`
`FAITH DONCHEV
`DENNIS DESIMONE
`
`SUBMITTED TO COURT: July 16, 2012
`
`ORDER
`
`THIS MATTER HAVING BEEN DULY PRESENTED TO THE COURT, IT IS, ON THIS
`23rd day of July, 2012, HEREBY ORDERED AS FOLLOWS:
`
`MOTION BY RESPONDENT
`
`MOTION TO FILE & ACCEPT
`RESPONDENT’S LETTER BRIEF AND
`APPENDIX AS SUBMITTED
`
`DENIED
`
`SUPPLEMENTAL: The brief submitted does not actually or substantially
`comply with the requirements of Rule 2:6-1. Therefore, there was no
`compliance with the April 26, 2012 order (M-4081-II). The court provided
`in this order the text of Rule 2:6-1. Respondent has to abide by the
`rules.
`
`FOR THE COURT:
`
`ARIEL A. RODRIGUEZ, P.J.A.D.
`
`L-000956-05
`ORDER - REGULAR MOTION
`CLD
`
`GLOUCESTER
`
`Ra010
`
`

`

`SUPERIOR COURT OF NEW JERSEY
`APPELLATE DIVISION
`
`JOSEPH H. ORLANDO
`CLERK
`
`JOHN K. GRANT
`DEPUTY CLERK
`
`JACK G. TRUBENBACH
`CHIEF COUNSEL
`
`RICHARD J. HUGHES JUSTICE
`COMPLEX
`P.O. BOX 006
`TRENTON, NEW JERSEY 08625-0006
`(609) 292-4822
`
`Date: July 24, 2012
`
`FAITH DONCHEV (PRO SE)
`800 HESSIAN AVENUE
`NATIONAL PARK, NJ 08063
`
`Re :
`
`METODI DONCHEV VS DENNIS DESIMONE
`Docket No. A-000395-11T3
`
`Dear FAITH DONCHEV:
`
`The court has directed the Clerk’s office to review documents
`submitted in order to determine if. they comply with the court rules
`and policies of the Appellate Division. The enclosed material is
`being returned to you, unfiled, because replies to motion answers may
`not be filed without a motion seeking such permission.
`
`Additionally, in an order filed July 24, 2012, the court denied
`the motion to file & accept respondent’s letter brief and appendix as
`submitted. Specifically, the Court states that "[r]espondent has to
`abide by the rules." Thus, your brief/appendix submitted May 29, 2012
`will not be filed and you are suppressed from filing a respondent’s
`brief/appendix at this time.
`
`Sincerely,
`
`JOSEPH H. ORLANDO
`CLERK
`
`Rachana R. Munshi
`Staff Attorney
`
`Encls.
`CC:
`METHFESSEL & WERBEL, P.C. - EDWARD L. THORNTON, ESQ.
`(w/o encls.)
`
`AD-01a
`
`Ra011
`
`

`

`NOT FOR PUBLICATION WITHOUT THE
`APPROVAL OF THE APPELLATE DIVISION
`
`
`
`
`
`
`
`
`
`
`SUPERIOR COURT OF NEW JERSEY
`APPELLATE DIVISION
`DOCKET NO. A-0395-11T3
`
`
`
`
`
`
`METODI DONCHEV and
`FAITH DONCHEV,
`
`
`
`v.
`
`DENNIS DESIMONE,
`
`Defendant-Appellant.
`
`____________________________
`
`
`Plaintiffs-Respondents,
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`September 24, 2012
`
`Argued September 12, 2012 - Decided
`
`Before Judges Simonelli, Accurso and Lisa.
`
`On appeal from the Superior Court of New
`Jersey, Law Division, Gloucester County,
`Docket No. L-0956-05.
`
`Edward L. Thornton argued the cause for
`appellant (Methfessel & Werbel, attorneys;
`Mr. Thornton, of counsel and on the brief;
`Amanda J. Sawyer, on the brief).
`
`Respondents have not filed a brief.1
`
`
`
`
`
`1 By order dated April 26, 2012, this court granted appellant's
`motion to suppress respondents' brief and indicated it would
`reconsider the decision if respondents filed a conforming brief
`no later than May 29, 2012. By order dated July 24, 2012, this
`court denied respondents' motion to file and accept a letter
`brief because the brief submitted did not actually or
`substantially comply with the requirements of Rule 2:6-1.
`
`Ra012
`
`

`

`PER CURIAM
`
`
`
`Defendant Dennis DeSimone appeals from the September 8,
`
`2006, and January 5, 2007 Law Division orders, which denied his
`
`motions for summary judgment. Defendant also appeals from the
`
`July 8, 2011 judgment entered in plaintiffs' favor, and the
`
`September 6, 2011 order, which denied his post-trial cross-
`
`motion for remittitur or, in the alternative, a new trial. We
`
`conclude that summary judgment should have been granted, and
`
`reverse.
`
`
`
`The following facts are derived from evidence submitted by
`
`the parties in support of, and in opposition to, the summary
`
`judgment motion, viewed in a light most favorable to plaintiff.
`
`See Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540
`
`(1995).
`
`
`
`Defendant was the president of D.N. DeSimone Construction
`
`Company, Inc. (DND), a New Jersey corporation. Although he had
`
`approximately thirty-two years of construction experience, he
`
`did not usually supervise DND's construction projects. Instead,
`
`DND had three work crews, each of which was supervised by a
`
`foreman.
`
`
`
`Defendant hired DND to complete several projects at his
`
`home, including garage roof repairs. DND usually hired
`
`subcontractors for roofing work, but defendant decided to use
`
`2
`
`A-0395-11T3
`
`Ra013
`
`

`

`DND's employees because the job was minor. DND paid for all of
`
`the project materials and labor and billed defendant.
`
`
`
`On June 16, 2003, plaintiff Metodi Donchev (Donchev) and
`
`two other DND employees reported to defendant's home to make the
`
`garage roof repairs. When they arrived, defendant told them
`
`that the roof had been leaking, and pointed out a soft-spot in
`
`the rear of the garage "right of center." Defendant left the
`
`work site approximately ten minutes after the employees had
`
`arrived. No foreman was present at the time, and no employee
`
`was "in charge" of the work site; however, at least one of the
`
`employees had prior roofing experience.
`
`Donchev had been employed by DND since 1996. Prior
`
`thereto, he worked for another construction company as well as
`
`independently in the field, and had experience with framing and
`
`carpentry work, and installing sheathing for walls and roofs.
`
`He purportedly had no experience replacing roofs, and his role
`
`on the day of the accident was limited to stripping the existing
`
`garage roof.
`
`While working on the garage roof on June 16, 2003, Donchev
`
`fell through a soft spot in the "back rear corner" and landed on
`
`his groin on a wooden beam, injuring his perineal area and right
`
`shoulder. He continued working, and went to his family
`
`physician the next day. On June 18, 2003, he went to the
`
`3
`
`A-0395-11T3
`
`Ra014
`
`

`

`hospital for treatment. He later suffered complications related
`
`to his perineal injury, and was hospitalized from June 26 to
`
`July 2, 2003. On September 9, 2003, his doctor determined that
`
`his injuries had healed, and cleared him to return to work. In
`
`June 2004, Donchev filed a claim petition with the Division of
`
`Workers' Compensation (Division), seeking benefits for his
`
`injuries.
`
`At his deposition, Donchev admitted that defendant had
`
`warned him and his co-workers that the garage roof had been
`
`leaking; however, he claimed it was difficult to determine the
`
`extent of the water damage because insulation covered the roof.
`
`Nonetheless, he also admitted that: (1) he saw water stains on
`
`the insulation; (2) the specific spot he fell through had not
`
`looked unsafe or unstable; (3) he and his co-workers had walked
`
`around the roof "all morning long" without incident; and (4) he
`
`knew that wood could rot if exposed to water.
`
`On June 7, 2005, Donchev and his wife, plaintiff Faith
`
`Donchev2 filed a complaint against defendant individually.
`
`Defendant filed a summary judgment motion, which the trial judge
`
`denied in a September 8, 2006 order and oral opinion. The judge
`
`acknowledged that "in normal circumstances," defendant would not
`
`
`2 For the remainder of this opinion we may sometimes refer to
`Donchev and his wife collectively as plaintiffs.
`
`4
`
`A-0395-11T3
`
`Ra015
`
`

`

`be liable for Donchev's injuries in his capacity as landowner
`
`because defendant hired DND to fix the roof, Donchev was injured
`
`while performing the work for which DND was hired, and defendant
`
`did not control the work. Nonetheless, the judge found
`
`defendant liable, concluding as follows:
`
`
`
`In our case, we have [defendant] that
`
`clearly has the superior knowledge wearing
`two hats. He's the guy that owns the
`property and he's the guy that is hired to
`actually come on-site to fix the problem.
`And I say that because he's the owner of the
`company that comes on-site to fix it and
`specifically,
`it's
`he
`that
`allocates
`responsibility for who would actually do the
`work. And in that process, he picks a
`person that's never done it before.
`
`It seems to me that under those set of
`
`facts, the policy that I just described;
`i.e., assigning responsibility to the person
`who has most knowledge would be defeated if
`I didn't assign it to the property owner,
`[defendant]. He's the one that has superior
`knowledge to everybody, including the
`[p]laintiff.
`
`He's the company. He's the owner.
`
`He's the one that knows this particular
`individual has not participated in this
`activity before. He's the one who arguably
`has control over how the job is done because
`it's his employees, in the sense that he's
`the principal plaintiff the company that's
`actually performing the work.
`
`And so because of the duplication of
`
`roles, the fact that this person wears a
`couple different hats, it seems to me that
`normally applied removal of responsibility
`doesn’t apply to this particular case. It's
`a very unique set of facts but I think it's
`
`5
`
`A-0395-11T3
`
`Ra016
`
`

`

`a set of facts that basically doesn't allow
`the spirit or the policy behind the rule to
`be utilized.
`
`Defendant later filed a second summary judgment motion
`
`
`
`
`arguing that the New Jersey Workers' Compensation Law (WCL),
`
`N.J.S.A. 34:15-70 to -142, barred plaintiffs' claims. In a
`
`January 5, 2007 order and oral opinion, the judge denied the
`
`motion. The judge acknowledged that the WCL barred plaintiffs'
`
`claims against defendant as DND's principal but held that the
`
`bar did not apply to defendant as the landowner.
`
`
`
`Donchev died on November 17, 2006, of causes that remain in
`
`dispute. Thereafter, the complaint was amended to substitute
`
`his estate as a plaintiff and assert a wrongful death claim. In
`
`addition, in February 2008, the estate filed a dependency claim
`
`petition with the Division. On July 28, 2008, the Division
`
`approved a settlement between DND and the estate for $30,000.
`
`The settlement contained the following language:
`
`This is a lump sum settlement between the
`parties . . . which has the effect of a
`dismissal with prejudice, being final as to
`all rights and benefits of the petitioner
`and is a complete and absolute surrender and
`release of all rights arising out of this .
`. . claim petition[].
`
`The parties agree that this settlement does
`contemplate
`a
`complete
`and
`absolute
`surrender and release of any and all rights
`by the petitioner's dependents as defined by
`N.J.S.A. 34:15-13 arising out of this . . .
`claim petition[].
`
`6
`
`A-0395-11T3
`
`Ra017
`
`

`

`I.
`
`Defendant contends that the judge erred in denying the
`
`
`
`first summary judgment motion. He argues that, as a landowner,
`
`he was not liable for Donchev's injuries because he owed no duty
`
`to Donchev, an employee of an independent contractor, to prevent
`
`injury from a risk which was incident to the very work Donchev
`
`was hired to perform. Defendant also argues that he is not
`
`liable because he was not the general contractor for the
`
`project, did not oversee or supervise the workplace, and
`
`exercised no control over the manner and means by which DND's
`
`employees performed the roofing work.
`
`
`
`Our review of a ruling on summary judgment is de novo,
`
`applying the same legal standard as the trial court. Coyne v.
`
`N.J. Dep't of Transp., 182 N.J. 481, 491 (2005); Tymczyszyn v.
`
`Columbus Gardens, 422 N.J. Super. 253, 261 (App. Div. 2011),
`
`certif. denied, 209 N.J. 98 (2012). Thus, we consider, as the
`
`trial judge did, "'whether the evidence presents a sufficient
`
`disagreement to require submission to a jury or whether it is so
`
`one-sided that one party must prevail as a matter of law.'"
`
`Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J.
`
`436, 445-46 (2007) (quoting Brill, supra, 142 N.J. at 536.).
`
`Summary judgment must be granted "if the pleadings, depositions,
`
`answers to interrogatories and admissions on file, together with
`
`7
`
`A-0395-11T3
`
`Ra018
`
`

`

`the affidavits, if any, show 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." R. 4:46-
`
`2(c). If there is no genuine issue of material fact, we must
`
`then "decide whether the trial court correctly interpreted the
`
`law." Massachi v. AHL Servs., Inc., 396 N.J. Super. 486, 494
`
`(App. Div. 2007), certif. denied, 195 N.J. 419 (2008). We
`
`review issues of law de novo and accord no deference to the
`
`trial judge's conclusions on issues of law. Zabilowicz v.
`
`Kelsey, 200 N.J. 507, 512-13 (2009). Applying these standards,
`
`we conclude that summary judgment should have been granted.
`
`
`
`Generally, a landowner "who invites workmen of an
`
`independent contractor to come upon his premises is under a duty
`
`to exercise ordinary care to render reasonably safe the areas in
`
`which he might reasonably expect them to be working." Sanna v.
`
`Nat'l Sponge Co., 209 N.J. Super. 60, 66 (App. Div. 1986).
`
`However, a landowner's "duty to provide a reasonably safe place
`
`to work is relative to the nature of the invited endeavor and
`
`does not entail the elimination of operational hazards which are
`
`obvious and visible to the invitee upon ordinary observation and
`
`which are part of or incidental to the very work the contractor
`
`was hired to perform." Id. at 67; see also Rigatti v. Reddy,
`
`318 N.J. Super. 537, 541-42 (App. Div. 1999); Accardi v. Enviro-
`
`8
`
`A-0395-11T3
`
`Ra019
`
`

`

`Pak Sys. Co., 317 N.J. Super. 457, 463 (App. Div.), certif.
`
`denied, 158 N.J. 685 (1999). "The landowner is under no duty to
`
`protect an employee of an independent contractor from the very
`
`hazard created by doing the contract work." Sanna, supra, 209
`
`N.J. Super. at 67. A plaintiff can overcome this exception by
`
`showing that: (1) the landowner retained control over "the
`
`manner and means of doing the work which is the subject of the
`
`contract"; (2) the landowner hired an incompetent contractor; or
`
`(3) the work constituted a nuisance per se. Accardi, supra, 317
`
`N.J. Super. at 463. These principles apply to a landowner who
`
`acts as a general contractor. Slack v. Whalen, 327 N.J. Super.
`
`186, 194 (App. Div.), certif. denied, 163 N.J. 398 (2000).
`
`
`
`Here, defendant hired a general contractor to repair his
`
`garage roof. Donchev, who had experience sheathing roofs, was
`
`working in his capacity as DND's employee at the time of the
`
`accident and knew about the roof's condition prior to starting
`
`the work. Defendant was not present during the actual work, and
`
`was not required to be there. He did not oversee, supervise, or
`
`exercise control over the means or method of the roofing work or
`
`provide any assistance or equipment. Thus, defendant, as a
`
`landowner, neither owed nor breached a duty of care to Donchev.
`
`His status as president of DND or experience in the construction
`
`industry was legally irrelevant because the employer-employee
`
`9
`
`A-0395-11T3
`
`Ra020
`
`

`

`relationship did not actually impact the way the DND employees
`
`carried out the roof work. Carvalho v. Toll Bros. & Developers,
`
`143 N.J. 565, 574 (1996). Thus, the judge erred in denying the
`
`first summary judgment.
`
`II.
`
`
`
`Defendant contends, in the alternative, that the judge
`
`erred in denying his second summary judgment motion. He argues
`
`that even if he was acting as Donchev's employer and breached a
`
`duty of care in this capacity, he is immune from suit pursuant
`
`to the WCL. We agree.
`
`
`
`The WCL has been characterized as
`
`a historic trade-off whereby employees
`relinquished their right to pursue common-
`law remedies in exchange for automatic
`entitlement
`to
`certain,
`but
`reduced,
`benefits whenever they suffered injuries by
`accident arising out of and in the course of
`employment. Thus the quid pro quo
`anticipated by the Act was that employees
`would receive assurance of relatively swift
`and certain compensation payments, but would
`relinquish their rights to pursue a
`potentially larger recovery in a common-law
`action.
`
`
`
`[Millison v. E.I. du Pont de Nemours & Co.,
`101 N.J. 161, 174 (1985).]
`
`
`The exception to the exclusive-remedy provision is when the
`
`employee's injuries arise from an employer's "intentional
`
`wrong." N.J.S.A. 34:15-8; Laidlow v. Hariton Mach. Co., Inc.,
`
`170 N.J. 602, 606 (2002). The "intentional wrong" exception
`
`10
`
`A-0395-11T3
`
`Ra021
`
`

`

`must be read narrowly. Millison, supra, 101 N.J. at 177. In
`
`the context of summary judgment, to establish intentional wrong
`
`the court must view the totality of the circumstances and make
`
`two inquiries:
`
`The first is whether, when viewed in a light
`most favorable to the employee, the evidence
`could lead a jury to conclude that the
`employer acted with knowledge that it was
`substantially certain that a worker would
`suffer injury. If that question is answered
`affirmatively, the trial court must then
`determine
`whether,
`if
`the
`employee's
`allegations are proved, they constitute a
`simple fact of industrial life or are
`outside the purview of the conditions the
`Legislature could have intended to immunize
`under the [exclusive-remedy provision].
`Resolving whether the context prong of
`Millison is met is solely a judicial
`function. Thus, if the substantial
`certainty standard presents a jury question
`and if the court concludes that the
`employee's allegations, if proved, would
`meet the context prong, the employer's
`motion for summary judgment should be
`denied; if not, it should be granted.
`
`
`
`[Laidlow, supra, 170 N.J. at 623).]
`
`
`There is no evidence in this case that defendant acted with
`
`knowledge that it was substantially certain that a worker would
`
`suffer injury. Accordingly, the judge erred in denying the
`
`second summary judgment motion.3
`
`
`3 Having concluded that this matter must be reversed because of
`the improper denial of summary judgment, we need not address
`
`
`
`
`
`
`(continued)
`
`11
`
`A-0395-11T3
`
`Ra022
`
`

`

`
`
`Reversed.
`
`
`
`
`(continued)
`defendant's contentions relating to the judgment and post-trial
`motions.
`
`12
`
`A-0395-11T3
`
`Ra023
`
`

`

`SUPERIOR COURT OF NEW JERSEY
`APPELLATE DIVISION
`
`JOSEPH Ho ORLANDO
`CLERK
`
`JOHN K. GRANT
`DEPUTY CLERK
`
`JACK G, TRUBENBACH
`CHIEF COUNSEL
`
`RICHARD J. HUGHES JUSTICE
`COMPLEX
`P.O. BOX 006
`TRENTON, NEW JERSEY 08625-0006
`(609) 292-4822
`
`Date: October ii, 2012
`
`FAITH DONCHEV (PRO SE)
`800 HESSIAN AVENUE
`NATIONAL PARK, NJ 08063
`
`Re :
`
`METODI DONCHEV VS DENNIS DESIMONE
`Docket No. A-000395-11T3
`
`Dear FAITH DONCHEV:
`
`The court has directed the Clerk’s office to review documents
`submitted in order to determine if they comply with the court rules
`and policies of the Appellate Division. Your motion for
`reconsideration & redetermination that was received on October 9,
`2012, is not being filed because you are suppressed from filing any
`papers in this appeal without leave of court. If you would like the
`motion for reconsideration filed, you must also submit a motion asking
`the court to vacate the suppression. Along with the motion,-you must
`also submit a certification explaining why you would like the court to
`vacate the suppression and the motion filing fee of $30.00. If you
`decide to file the motion to vacate suppression, please do so within
`ten (I0) days.
`
`Additionally, because of the large volume of material you have
`submitted for filing, we are sending only one copy of the material
`back to you. If you would like the remaining copies returned to you,
`you may pick them up at the Clerk’s office or make other arrangements
`for their return. You may