CHENG v. ONE WORLD TECHNOLOGIES, INC. et al

Filing 50

OPINION. Signed by Judge Madeline C. Arleo on 8/12/15. (DD, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
____________________________________
:
ZHENPING CHENG,
:
:
Plaintiff,
:
:
v.
:
:
ONE WORLD TECHNOLOGIES,
:
INC., et al.,
:
:
Defendants.
:
____________________________________:

Civil Action No. 13-1210

OPINION

ARLEO, UNITED STATED DISTRICT JUDGE
I.

INTRODUCTION
Plaintiff Zhenping Cheng’s (“Plaintiff”) injured his hand on a table saw while performing

renovations at the home of defendants Xiaobo Yu (“Mr. Yu”) and Juanjuan Ma’s (“Mrs. Ma”)
(collectively, the “Homeowners”). The Homeowners had hired defendant contractor, Zhiyong
Bao (“ Bao”) who in turn brought Plaintiff with him to the Homeowners residence to perform the
renovation.

The Defendant Homeowners moved for summary judgment against Plaintiff and

Plaintiff cross-moved for summary judgment against the Homeowners and Bao. The motions
were decided without oral argument pursuant to Fed. R. Civ. P. 78 and L. Civ. R. 78.1. For the
reasons set forth herein, the Homeowners’ motion is GRANTED and Plaintiff’s motion is
DENIED.
II.

STATEMENT OF FACTS
This case stems from an injury to Plaintiff that occurred while contractor Bao and

Plaintiff were performing home renovations at Mr. Yu and Mrs. Ma’s home.

The Homeowners are a husband and wife who own a home in Millburn, New Jersey.
Def. Statement ¶ 1. In 2011, the Homeowners sought a contractor to repair their basement
bathroom. Id. ¶ 5. Mr. Bao had placed an advertisement in a Chinese newspaper, identifying
himself as an experienced contractor who was government-registered. Id. ¶ 3. 1 Mrs. Ma saw the
advertisement and inquired about his abilities from her friend’s sister, who had previously hired
him to perform work at her home. Def. Statement ¶ 4. Mr. Bao, however, lacked “applicable
licenses and insurance for home improvement.” Pl. Statement ¶ 8. After Mr. Bao met with the
Homeowners and he gave them an estimate, they retained him to renovate the bathroom in their
basement. Id. ¶ 5.
The Homeowners provided certain materials for the project, such as the door, windows,
and wood. Id. ¶ 8. Mr. Bao provided the equipment and labor. Id. ¶ 9. Plaintiff worked for Mr.
Bao and Mr. Bao brought him to the Homeowners’ residence. Pl. Statement ¶ 6. While the
Homeowners gave Mr. Bao general instructions and periodically checked in with him, the
manner of completion was left to Mr. Bao’s discretion. Def. Statement ¶¶ 10-11; see also Bao
Dep. 99:16-100:10, 106:16-107:16.
On March 18, 2011, while working at the Homeowners’ residence, Plaintiff cut his left
hand on a table saw provided to him by Mr. Bao. Def. Statement ¶¶ 1, 14; Pl. Statement ¶ 6. 2

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In several instances in his response to the Homeowners’ statement of undisputed facts,
Plaintiff claims he “is without knowledge of the facts contained in Paragraph [] and therefore
disputes Paragraph [].” Similarly, in many instances Plaintiff disputes a fact without providing a
citation to the record to support the denial. The Court therefore accepts these facts as admitted.
Boles v. Wal-Mart Stores, Inc., No. 12-1762, 2014 WL 1266216, at *2 (D.N.J. Mar. 26, 2014);
Pitman v. Ottehberg, No. 10-2538, 2013 WL 6909905, at *9 (D.N.J. Dec. 31, 2013).
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At their depositions, Plaintiff and Mr. Bao both claimed that the other had brought the
table saw to the Homeowners’ property. See Cheng Dep. 13:22-24; Bao Dep. 38:15-17. As
Plaintiff has asserted in his statement of undisputed facts that Mr. Bao provided the table saw
and Mr. Bao has not opposed the motion, the Court accepts as true that Mr. Bao provided it.
Reed v. Straniero, No. 06-3496, 2007 WL 3430935, at *8 (D.N.J. Nov. 13, 2007).
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Plaintiff brought suit against the saw’s manufacturer, Mr. Bao, and the Homeowners.
Plaintiff and the manufacturer subsequently settled. Therefore, the remaining claims in the case
are negligence claims against Mr. Bao and the Homeowners.
III.

STANDARD OF REVIEW
Pursuant to Fed. R. Civ. P. 56(c), a motion for summary judgment will be granted if the

pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine dispute as to any material fact and that the
moving party is entitled to judgment as a matter of law. See Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “[S]ummary
judgment may be granted only if there exists no genuine issue of material fact that would permit
a reasonable jury to find for the nonmoving party.” Miller v. Ind. Hosp., 843 F.2d 139, 143 (3d
Cir. 1988). All facts and inferences must be construed in the light most favorable to the nonmoving party. Peters v. Del. River Port Auth., 16 F.3d 1346, 1349 (3d Cir. 1994).
IV.

ANALYSIS
a. The Homeowners’ Motion for Summary Judgment and Plaintiff’s Motion for
Summary Judgment Against the Homeowners
The parties agree that the Homeowners are not liable for Plaintiff’s injuries unless: (1) the

Homeowners retained control of the manner and means of the work performed; (2) Mr. Bao was
an incompetent contractor; or (3) the work to be performed constituted a nuisance per se. Pl. Br.
at 6; Def. Reply Br. at 3; see Muhammad v. N.J. Transit, 176 N.J. 185, 197 (2003).
Here, there is no factual dispute that the Homeowners did not retain control of the manner
of work or means of the work performed. The homeowners provided raw material for the job,
such as door, window, and wood and gave Mr. Bao general information about the project and the
desired aesthetic appearance. Def. Statement ¶¶ 8-11. Mr. Bao supplied the tools and labor; he
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also made the decisions on how the renovation should be accomplished. Id. Plaintiff’s assertion
that Homeowners “controlled access to the worksite” (their home) or his bald assertion that
Homeowners controlled the “scope of the worksite” is insufficient as a matter of law to impose
liability. Pl. Br. at 10.
An exercise of “general supervisory power over the result to be accomplished” is not
enough to impose liability. See Muhammad, 176 N.J. at 197; Majestic Realty Assocs. v. Toti
Contracting Co., 30 N.J. 425, 431 (1959); Marion v. Public Serv. Elec. & Gas Co., 72 N.J. Super.
146, 154-55 (App. Div. 1962); see also Ma Dep. 14:20-23, 17:1-4; Bao Dep. 99:16-100:10,
106:16-107:16.

That is precisely the role that Homeowners played here.

Thus, the first

exception does not apply.
As to the second exception, “to prevail against the principal for hiring an incompetent
contractor, a plaintiff must show that the contractor was, in fact, incompetent or unskilled to
perform the job for which he/she was hired, that the harm that resulted arose out of that
incompetence, and that the principal knew or should have known of the incompetence.”
Puckrein v. ATI Transp., Inc., 186 N.J. 563, 576 (2006). Here, as to Bao’s competency, plaintiff
argues that Homeowners “failed to verify his credentials” and that Boa did not possess
“applicable licenses and insurance for the home improvement.” Br. at 7. However, plaintiff has
failed to demonstrate what type of insurance were actually required and whether failure to obtain
it rendered Bao incompetent. Nor have they demonstrated how failure of the Homeowners to
obtain permits (or the type of permits needed) somehow rendered Bao incompetent. As to
licencing, there is no evidence as to whether Bao needed to be licensed, the type of license he
lacked or how that lack of license rendered him incompetent for the work performed. And even
assuming that Mr. Bao was incompetent or unskilled, Plaintiff has failed to demonstrate that the

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Homeowners were aware of this fact. In fact the evidence is to the contrary. Mr. Bao’s
advertisement represented that he was government-registered. Def. Statement ¶ 3. Additionally,
Mrs. Ma inquired as to Mr. Bao’s qualifications prior to retaining him. Id. ¶ 4.
Thus, Plaintiff has failed to create a triable issue as to whether it can recover from the
Homeowners under this exception. See Puckerin, 183 N.J. at 576; Basil v. Wolf, 193 N.J. 38, 73
(2007); Cassano v. Aschoff, 226 N.J. Super. 110, 114 (App. Div. 1988); Andrews v. Jerud, No.
A-6036-12T3, 2014 WL 4998417, at *4 (N.J. App. Div. Oct. 8, 2014); Jarrell v. Kaul, No. A3492-11T1, 2013 WL 764642, at *10 (N.J. App. Div. Mar. 1, 2013).
The final exception, per se nuisance, is equally inapplicable because the risk at issue
here, the use of a table saw, is nothing more than a risk inherent in the work for which Mr. Bao
was retained and does not constitute a particular risk unique to this construction project. See
Baboghlian v. Swift Elec. Supply Co., 197 N.J. 509, 519 (2009); Cassano, 226 N.J. Super. at
115; Torres v. Masoud, No. A-0895-13T2, 2014 WL 4675007, at *3 (N.J. App. Div. Sept. 22,
2014); Coker v. Pershad, No. A-4679-11T1, 2013 WL 1296271, at *5 (N.J. App. Div. Apr. 2,
2013); Medina v. BRW Ltd. Holdings, L.L.C., No. A-5831-06T3, 2008 WL 2520882, at *4 (N.J.
App. Div. June 26, 2008); McNulty v. Dover Mun. Util. Auth., No. L-3531-02, 2007 WL
102587, at *5 (N.J. App. Div. Jan. 17, 2007).
Because Plaintiff has not demonstrated any disputed issue of material fact as to the
Homeowners’ lack of liability, the Homeowners’ motion for summary judgment is granted and
Plaintiff’s motion for summary judgment against the Homeowners is denied.
b. Plaintiff’s Motion for Summary Judgment Against Mr. Bao
Plaintiff asserts different theories against Mr. Bao in the Complaint and in the moving
brief. In Court Four, Plaintiff asserts: “But for Defendant Bao’s failure to operate a legitimate

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business and his failure to acquire license and insurance, the Plaintiff would not have been hired
by the Defendant Bao and would not have sustained permanent bodily injury.” Complaint ¶ 37.
In his brief, however, Plaintiff’s legal theory is that Mr. Bao is liable for: (1) providing Plaintiff
with a defective saw that lacked a guard; and (2) the placement of the saw on the ground, which
created an unsafe working environment. See Pl. Br. at 6. Although Plaintiff’s motion is
unopposed, he fails to offer a basis to award summary judgment under either theory.
As to the theory set forth in the Complaint, Plaintiff has set forth no legal support for the
proposition that failure to have licenses or insurance constitutes negligence as a matter of law.
He also does not set forth facts which would demonstrate a causal connection between the lack
of insurance/licensure and Plaintiff’s hire. As to the theory articulated in his brief, Plaintiff has
offered no factual support regarding the need for a guard on this type of saw, the lack of a guard
on the saw used, or that the placement of this model of saw on the floor created an unsafe work
environment. See Pl. Statement ¶¶ 1-8.

In addition, Plaintiff has provided no evidence of

damages. In fact, Plaintiff’s statement of undisputed facts does not even explain what injuries he
suffered. Therefore, because Plaintiff has failed to demonstrate either liability or damages, his
motion for summary judgment is denied.
V.

CONCLUSION
For the reasons set forth above, the Homeowner’s motion is GRANTED and Plaintiff’s

motion is DENIED. An appropriate order shall issue.
/s Madeline Cox Arleo
HON. MADELINE COX ARLEO
UNITED STATES DISTRICT JUDGE

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