SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4518-17T4

JOSEPHINE NEHER, SHAVONNE

BURNETT and LAURA SIMMONS, 

Plaintiffs-Appellants,

v.

EARL C. HOPKINS,

Defendant/Third-Party Plaintiff,

and

GANNETT COMPANY, INC.,

d/b/a THE COURIER-POST,

Defendant-Respondent,

v. 

TARON SMITH and COLLEEN 

M. COOK,

Third-Party Defendants.

_______________________________

Submitted August 13, 2019 – Decided August 22, 2019

Before Judges Sumners and Moynihan.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
2

A-4518-17T4

On appeal from the Superior Court of New Jersey, Law 

Division, Camden County, Docket No. L-4871-15.

Peter J. Mc Namara, attorney for appellants.

Rudolph & Kayal, PA, attorneys for respondent

(Stephen A. Rudolph, on the brief).

PER CURIAM

Plaintiffs Josephine Neher, Shavonne Burnett and Laura Simmons appeal 

from the trial court's order granting summary judgment to defendant Gannett 

Company, Inc., doing business as (d/b/a) The Courier-Post (defendant),

1

and 

dismissing plaintiffs' complaint with prejudice. Plaintiffs argue the trial court 

erred by ruling that defendant was not vicariously liable to plaintiffs because

Earl C. Hopkins – who, while delivering the Courier-Post newspaper, allegedly 

collided with the vehicle in which plaintiffs were passengers, causing them 

personal injury and resulting "financial losses, pain and suffering" and other 

damages – was an independent contractor of defendant, not its employee. 

Reviewing the trial court's grant of summary judgment de novo, applying the 

same standard governing the trial court under Rule 4:46-2(c), Brill v. Guardian 

 

1

 We utilize the most common name used for defendant in the order granting 

summary judgment. We note defendant refers to itself as Gannett Satellite 

Information Network, LLC d/b/a Courier-Post in its submissions to this court

and the Law Division. It is not apparent from the record that a motion to amend 

defendant's name was made or granted. See R. 4:9-3.
3

A-4518-17T4

Life Ins. Co. of Am., 142 N.J. 520, 539-40 (1995), and "consider[ing] whether 

the competent evidential materials presented, when viewed in the light most 

favorable to the non-moving party, are sufficient to permit a rational factfinder 

to resolve the alleged disputed issue in favor of the non-moving party," id. at

540; see also R. 4:46-2(c), we affirm.

"Although as a general rule of tort law, liability must be based on personal 

fault, the doctrine of respondeat superior recognizes a vicarious liability 

principle pursuant to which a master will be held liable in certain cases for the 

wrongful acts of his servants or employees." Carter v. Reynolds, 175 N.J. 402, 

408 (2003). "Under respondeat superior, an employer can be found liable for 

the negligence of an employee causing injuries to third parties, if, at the time of 

the occurrence, the employee was acting within the scope of his or her 

employment." Id. at 408-09. An employer is liable if an employer-employee 

relationship existed and the employee's tortious act "occurred within the scope 

of that employment." Id. at 409.

In contrast, "[o]rdinarily, an employer that hires an independent contractor

is not liable for the negligent acts of the contractor in the performance of the 

contract." Bahrle v. Exxon Corp., 145 N.J. 144, 156 (1996). Vicarious 

"[l]iability may be imputed to a principal for the actions of independent 
4

A-4518-17T4

contractors . . . where the principal retains control of the manner and means of 

doing the work that is the subject of the contract."

2 Basil v. Wolf, 193 N.J. 38, 

63 (2007).

"In such a case the employer is responsible for the 

negligence of the independent contractor even though 

the particular control exercised and its manner of 

exercise had no causal relationship with the hazard that 

led to the injury,[3]just as in the case of a simple 

employer-employee situation." Under that test, the 

reservation of control over the equipment to be used, 

the manner or method of doing the work, or direction 

of the employees of the independent contractor may 

permit vicarious liability. 

[Mavrikidis v. Petullo, 153 N.J. 117, 135 (1998) 

(citation omitted) (quoting Bergquist v. Penterman, 46 

N.J. Super. 74, 85 (App. Div. 1957)).]

 

2

 Liability may also be imputed in situations not here in issue: "where the 

principal engages an incompetent contractor; or . . . where the activity 

constitutes a nuisance per se." Wolf, 193 N.J. at 62.

3

 Defendant argues in Point II of its merits brief that the trial court's grant of 

summary judgment should be affirmed because there is no evidence that it acted 

negligently or was the proximate cause of the accident in which plaintiffs were 

injured. That issue was not raised to the trial court and we will not consider it.

Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (holding appellate 

courts "will decline to consider questions or issues not properly presented to the 

trial court when an opportunity for such a presentation is available"). 
5

A-4518-17T4

Plaintiffs contend Hopkins, who delivered the Courier-Post pursuant to an 

"Independent Contractor Agreement Delivery Service" (the Agreement) with 

defendant,

4 was defendant's employee because it retained control over Hopkins's 

work. Specifically, plaintiffs argue Hopkins: was required to deliver the 

Courier-Post "in a certain order" and "by a certain time" specified by defendant; 

was "subject to significant fines if he [did] not show up to work on a particular 

day"; could "not be terminated without cause," and would be paid "one month[']s 

pay if [defendant] wanted to terminate the Agreement"; and would be paid 

additional compensation for every subscription that originated from his 

solicitation.

We perceive defendant exercised only "a general power to supervise 

[defendant's] work," to ensure the newspapers were delivered in a timely 

manner. Marion v. Pub. Serv. Elec. & Gas Co., 72 N.J. Super. 146, 153 (App. 

Div. 1962). Because "the supervision related only to the results and not to the 

method of doing the work," defendant was not vicariously liable for plaintiffs' 

damages. Ibid. (quoting Trecartin v. Mahony-Troast Const. Co., 18 N.J. Super. 

380, 386-87 (App. Div. 1952)).

 

4

 The "Company" with which Hopkins contracted is "Courier-Post," the 

appellation handwritten in the agreement.
6

A-4518-17T4

The Agreement, the terms of which we review de novo, Kieffer v. Best 

Buy, 205 N.J. 213, 222-23 (2011), provided that Hopkins had a daily 6:00 a.m. 

deadline, except for a 7:00 a.m. Sunday deadline, for delivery of the newspaper

"in consideration of its perishable nature." It also provided that defendant was 

to provide Hopkins with a "Delivery List" "of [l]ocations in the [d]elivery [a]rea 

that have requested service for delivery" of the newspaper but "[t]he Delivery 

List is not in an order of requested or required delivery but may include the 

transmittal of requests or complaints from a subscriber or [l]ocation relating to 

delivery service." As such, defendant did not control Hopkins's mode or method 

of delivery. 

Although plaintiffs contend their argument that defendant controlled 

Hopkins's delivery is supported by one sentence in Hopkins's deposition 

testimony – in which he responded affirmatively to the question, "And on that 

route sheet, does it tell you what house should be delivered first and what order 

you should go in?" – they do not clarify how Hopkins's view reconciled with the 

Agreement's terms, particularly those dealing with customer complaints which 

may have altered the order of delivery. Further, Hopkins deposed that additions 

and deletions from his route would be reflected in additional computer printout 

sheets that were provided with his daily stacks of papers and which he used to 
7

A-4518-17T4

update the route sheet. Common sense dictates that delivery to added 

subscribers would follow Hopkins's route and that delivery would not occur at 

the end of his route simply because the new customer's sheet was added to the 

end of the route sheet. And that single answer does not present a sufficient 

disputed fact that would defeat summary judgment. See Gilhooley v. Cty. of 

Union, 164 N.J. 533, 545 (2000) (holding when the evidence is utterly one-sided, 

a judge may decide that a party should prevail as a matter of law). 

Moreover, the nature of the relationship between Hopkins and defendant 

supports the conclusion that Hopkins was an independent contractor. The selftitled "Independent Contractor Agreement" specifically provided: 

"CONTRACTOR ACKNOWLEDGES THAT CONTRACTOR IS AN

INDEPENDENTLY ESTABLISHED BUSINESS AND FULLY AND FREELY 

INTENDS TO CREATE AN INDEPENDENT CONTRACTOR 

RELATIONSHIP WITH [DEFENDANT] UNDER THIS AGREEMENT" and 

paragraph 3 of the Agreement expounded:

3. Independent Contractor. Contractor and Company 

intend and agree that Contractor will be acting under 

[the] Agreement as an independent contractor. 

a) Not an employee. Contractor is not an 

employee of Company. Under no circumstances 

will Contractor, or anyone performing the 

Contractor's obligations under [the] Agreement, 
8

A-4518-17T4

be included in any employee benefit plan of 

Company and Contractor waives any right to be 

so included. 

b) Established Independent Business. Contractor 

acknowledges that Contractor has an established 

independent business to provide delivery related 

services. 

c) Control of Activities. Company and 

Contractor acknowledge that the means, method, 

and control of the activities governed by [the]

Agreement shall remain at the discretion of the 

Contractor. Contractor is free, and is 

encouraged, to increase the number of delivery 

[l]ocations within the [d]elivery [a]rea. 

Contractor is free to purchase Contractor's own 

equipment and supplies wherever Contractor 

chooses, including at Contractor's option from 

Company, with the exception of bags supplied by

an advertiser or another publisher and provided 

by Company, which Contractor agrees to use. 

Otherwise, Contractor has the option of inserting 

copies of [p]ublications into poly bags . . . . 

Contractor has no obligation to attend any 

Company meetings.

Although such a provision alone is not definitive, see Mavrikidis, 153 N.J. 

at 133, it is undisputed that Hopkins utilized his wife's vehicle which he or his 

wife insured. Defendant did not pay Hopkins for any vehicle-related expenses

in accordance with paragraph 3(e) of the Agreement and the vehicle did not bear 

the Courier-Post's logo or other markings identifying the newspaper. The parties 

to the Agreement agreed in Paragraph 3(d) that Hopkins would be treated "as an 
9

A-4518-17T4

independent contractor and direct seller and not as an employee under all 

applicable laws for federal, state and local purposes"; it is not disputed that taxes 

were not deducted from Hopkins's payments from defendant, as would be the 

case if he was an employee. He received a 1099 form from defendant and was 

responsible to pay all taxes.

Further evidence that defendant controlled only the result of the delivery 

operation is Hopkins's "right to engage in any other business that does not 

interfere with the performance of [the] Agreement, including the delivery of 

other [p]publications or products" and his ability to "employ or contract with 

other persons to assist in the performance of [the] Agreement," including the 

"exclusive control" to "engage a substitute or subcontractor" at Hopkins's 

expense to make deliveries if Hopkins chose not to, as long as Hopkins was 

"solely responsible for the performance of [the] Agreement." The Agreement 

specified defendant was not responsible to obtain a substitute delivery person. 

The "significant fines" plaintiffs claim support their employer-employee 

argument are actually liquidated damages imposed "not as a penalty," calculated 

by the amount of newspapers Hopkins failed to deliver. 

Additional contract terms, including those requiring Hopkins to provide a 

commercial bond or security deposit to secure his performance under the 
10 A-4518-17T4

Agreement and to indemnify and hold harmless defendant for claims and 

damages arising from Hopkins's performance of the Agreement are atypical to 

an employer-employee relationship.

We determine plaintiffs' remaining arguments, including those related to

the Agreement provisions about termination of the agreement and solicitation of 

business, are without sufficient merit to warrant discussion in this opinion. R.

2:11-3(e)(1)(E). We add only that the termination clause was mutual to both 

parties and the business-solicitation clauses provided incentives for Hopkins's 

actions independent of any requirements – including quotas or goals – or 

supervision by defendant. Those provisions did not reserve any right to

defendant to control Hopkins's delivery methods. We further find such 

insufficient merit in any argument related to inapposite cases cited by plaintiffs 

where the alleged employer exercised complete control over the employee. See,

e.g., De Monaco v. Renton, 18 N.J. 352, 355-56 (1955) (concluding that "an 

independent contractor who had a franchise or exclusive right from the two 

newspaper companies to distribute" newspapers "exercised full control over all 

the newsboys, even to the extent of telling them precisely where they were to 

stand and sell the papers").
11 A-4518-17T4

The evidence in this case clearly belies the existence of an employeremployee relationship or that defendant maintained control over Hopkins's 

delivery methods except those related to the end-product: timely delivery of the 

newspaper. The facts here are so completely one-sided that a rational jury could 

not come to any conclusion other than the one reached by the trial court in 

granting summary judgment in defendant's favor. Mangual v. Berezinsky, 428 

N.J. Super. 299, 308 (App. Div. 2012).

Affirmed.