Mangual v. Berezinsky, A-0979-11T4; Appellate Division; opinion by Accurso, J.S.C., temporarily assigned; decided and approved for publication July 23, 2012. Before Judges Payne, Reisner and Accurso. On appeal from the Law Division, Essex County, L-7276-08 and L-8433-08 (consolidated). DDS No. 36-2-7105 [22 pp.]

Plaintiffs Felix and Judith Mangual suffered catastrophic injuries when a Lincoln Town Car driven by defendant Lazar Berezinsky slammed into them as they stood on the shoulder of Route 280 outside their disabled car. Berezinsky was driving Galina Komarov home after an out­patient procedure at the Roseland Ambulatory Surgery Center. He had been hired to drive her to and from her appointment by Abram Stekolshchik (Arkady), who was employed by defendant Essex Surgery Center, L.L.C.

Essex and Roseland have some common owners and the same manager. Essex provides transportation for all its patients, using a pool of drivers culled from limousine services who would drive for Essex on the side. Berezinsky, who was a member of a limo service cooperative in New York, was one of those drivers. He owned the Town Car that he was driving on the day of the accident and it was registered in his name in New York. He had no contract with Essex or set schedule; he drove when Arkady needed him. He maintained and repaired the car and chose the routes of travel. He was paid by the hour and not by the trip. There was conflicting testimony regarding whether Essex paid him for gas. Essex issued Berezinsky a 1099-Miscellaneous Income Statement at the end of each year.

Arkady, although employed only by Essex, was also responsible for arranging all patient transportation for Roseland in 2008. Berezinsky was paid by Essex for his work at Roseland. Essex was reimbursed at the end of the year after Roseland had established its own revenue stream.

Applying Miklos v. Liberty Coach Co., 48 N.J. Super. 591 (App. Div. 1958), the motion judge determined that no rational fact finder could find that Berezinsky was an independent contractor and not acting as Essex’s agent while driving Komarov at the time of the accident. Essex appeals from the orders finding that Berezinsky was its agent and finding that Berezinsky was liable for the accident.

Held: When viewed in the light most favorable to Essex, the evidence is sufficient to allow a rational fact finder to resolve the agency question in its favor. Summary judgment in favor of plaintiffs on this issue is reversed. Summary judgment to plaintiffs on liability is affirmed as their proofs in this res ipsa case, although circumstantial, were sufficient to establish a prima facie case of negligence that defendant did not rebut.

The panel first observes that New Jersey has adopted § 220 of the Restatement (Second) of Agency for determining whether one acting for another acts as a servant or agent, or as an independent contractor. Its test is reflected in Miklos.

The panel rejects the motion judge’s conclusion that applying Miklos to the facts here leads inescapably to only one conclusion. He determined that Arkady exercised “an expansive control” over Berezinsky’s actions at the time of the accident; that Berezinsky was not engaged in an occupation distinct from that of a surgical center; that Essex contributed to his operational costs by paying him for gas; that livery service is a part of Essex’s regular surgical center business; and that Essex, although not considering Berezinsky as its agent, held him out to Komarov as such.

The panel does not say that no rational jury could arrive at the same conclusions, only that a rational jury could as readily conclude the opposite, i.e., that Berezinsky was acting as an independent contractor, because the inferences that may be drawn from the facts vary greatly. Accordingly, the panel concludes that whether Berezinsky was acting as Essex’s agent at the time of the accident must be determined by a jury.

The panel then considers Essex’s argument that the trial judge erred in entering summary judgment for plaintiffs on liability because plaintiffs are not entitled to a presumption of negligence simply from the happening of the accident and because Eaton v. Eaton, 119 N.J. 628 (1990), requires that any inference of negligence is for the jury, not the judge, to draw. The panel disagrees that the motion judge accorded plaintiffs a presumption of negligence on the mere occurrence of the accident or that Eaton requires that the jury draw the inference of negligence on these facts.

It says that although plaintiffs have not expressly relied on the doctrine of res ipsa loquitur in framing their proofs, it understands this to be a res ipsa case and this characterization should not deprive plaintiffs of summary judgment on these facts.

The panel explains that res ipsa loquitur is an emanation of the basic legal doctrine that a verdict in a negligence case may rest on circumstantial evidence. Its application permits an inference of negligence that can satisfy a plaintiff’s burden of proof, thereby enabling him to survive a motion to dismiss at the close of his case.

The panel says the evidence, viewed most favorably to Berezinsky, reveals that he was driving at 50 to 55 miles per hour at midday on a day that was clear and dry and the traffic was very light, when the car spun 180 degrees “for unknown reasons,” crossed the two right lanes and slammed into plaintiffs. Thus, plaintiffs have not based their case merely on the happening of the accident; they have put forth competent, albeit circumstantial, proofs allowing the inference of negligence, thereby establishing a prima facie case. It was incumbent on Essex to identify a genuine issue of material fact that would ultimately entitle Berezinsky to judgment. Essex failed to do so. Merely relying on his denial of negligence was not sufficient.

The panel rejects Essex’s argument that because the inference res ipsa creates is only permissive, the case must go to the jury. Plaintiffs established, by circumstantial evidence, a prima facie case of negligence sufficient to withstand a Rule 4:37-2(b) motion to dismiss. ­This same showing is sufficient to carry their burden on a motion for summary judgment.

Although there are res ipsa cases in which the facts are either in dispute, such as Eaton, or not so one-sided that one party must prevail as a matter of law, rendering summary judgment inappropriate, given Berezinsky’s inability to offer any explanation for his car spinning out of control, neither the evidence, nor the inferences that could be drawn therefrom, presented any issue for a jury. Plaintiffs were entitled to judgment as a matter of law.

For appellant — Thomas M. Mulcahy (Purcell, Mulcahy, O’Neill & Hawkins; Mulcahy, Michael F. O’Neill and Danielle H. Bohlen on the brief). For respondents: Berezinsky — Brian G. Steller (Connell Foley; Christopher Abatemarco on the brief); Felix and Judith Mangual — Eric G. Kahn (Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins).