TIMOTHY MAHONEY VS. UNION PAVING & CONSTRUCTION COMPANY, INC. VS. DMJ INDUSTRIAL SERVICES, LLC (L-0433-17, HUDSON COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0115-19T2
TIMOTHY MAHONEY,
Plaintiff-Appellant,
v.
UNION PAVING & CONSTRUCTION
COMPANY, INC.,
Defendant/Third-Party
Plaintiff-Respondent,
v.
DMJ INDUSTRIAL SERVICES,
LLC and LEADING EDGE SAFETY
& HEALTH, LLC,
Third-Party Defendants.
________________________________
Argued telephonically August 4, 2020 -
Decided August 26, 2020
Before Judges Rothstadt and Firko.
On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Docket No. L-0433-17.
Douglas D. Burgess argued the cause for appellant
(Icaza, Burgess & Grossman, PC, attorneys; Douglas D.
Burgess, of counsel; Randi S. Greenberg, on the brief).
Adam J. Adrignolo argued the cause for respondent
(McElroy, Deutsch, Mulvaney & Carpenter, LLP,
attorneys; Adam J. Adrignolo, of counsel and on the
brief; Francis W. Yook, on the brief).
PER CURIAM
Plaintiff Timothy Mahoney appeals from an August 2, 2019 order granting
summary judgment in favor of defendant Union Paving and Construction
Company, Inc. (Union Paving). We affirm.
I.
In reviewing the grant of a motion for summary judgment, we "must
accept as true all the evidence which supports the position of the party defending
against the motion and must accord [that party] the benefit of all legitimate
inferences which can be deduced therefrom." Brill v. Guardian Life Ins. Co. of
Am., 142 N.J. 520, 540 (1995) (citations omitted). Accordingly, we relate the
facts as admitted by the parties and as proffered by plaintiff, based upon the
deposition testimony and other documentary evidence, including his expert's
report.
On January 15, 2016, plaintiff, a journeyman ironworker and union
member, was injured on a construction site in Bayonne when a steel enforcement
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cage used to support concrete pillars rolled onto him. At the time of his accident,
plaintiff was employed by DMJ Industrial Services (DMJ), an ironworking
subcontractor. Union Paving was the general contractor overseeing the project.
On April 2, 2015, Union Paving and DMJ executed a subcontract for the
project, which identified Union Paving as the contractor; DMJ as the
subcontractor; and the New Jersey Turnpike Authority as the owner. The project
entailed construction of ramps and bridges in order to alleviate traffic at
Interchange 14A. According to the subcontract, DMJ's scope of work included
rebar installation and caisson frame assembly. Plaintiff testified that a caisson
frame is used to support a highway exit or entry ramp and he had worked on
such frames in the past.
In pertinent part, the subcontract states that DMJ "has investigated the
nature, locality and site of the [s]ubcontract [w]ork and the conditions and
difficulties, if any, under which [the work] is to be performed, and assumes all
risks therefrom." DMJ executed the subcontract "on the basis of its own
examination, investigation and evaluation . . . ."
The subcontract obligated DMJ to furnish all materials, equipment, tools,
labor and competent supervision in the performance of its duties. DMJ was
required to "keep the building and premises free from . . . unsafe conditions
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resulting from the [s]ubcontractor's [w]ork . . . ." The terms of the subcontract
delegated all rebar installation and caisson frame assembly work to DMJ.
On January 13, 2016, DMJ commenced work on the project. Two days
later, plaintiff, along with other DMJ workers and DMJ's foreman, Jeff Coggins,
assembled a cylindrical caisson frame and attached steel rebar to the frame. The
caisson is covered with concrete and reinforces a concrete pillar buttressing a
highway extension. At his deposition, plaintiff described the method of adding
support to wedge an object and prevent it from rolling as the "chocking method."
Coggins testified at his deposition that the chocking method was the standard
practice for assembly of the caisson and comported with safety protocols.
Coggins, a seasoned ironworker, instructed plaintiff and DMJ employees
on installation of the caisson frame on the date of the accident. After unloading
the caissons from a flatbed truck, Coggins directed plaintiff and DMJ employees
to move them using a shackle, strap, and choker. The frame became top heavy
and rolled resulting in plaintiff's injuries. Plaintiff testified there was no
discussion about implementing a dunnage 1 safety precaution even though the
requisite materials were available at the jobsite.
1
Plaintiff described dunnage as typically consisting of a piece of wooden board.
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Travis Carey, a Union Paving project manager, testified that DMJ was
responsible for assembly of the frames and Union Paving had no foreman
present. In an accident investigation report authored by Union Paving, the
"cause" of the accident was identified as: "[w]eight of the straight rebar on top
of the rebar cage caused the cage to shift, which in effect caused it to roll . . . ."
The report also stated the "preventive action" as: "[e]mployees were instructed
to build cages on top of dunnage and use wedges to prevent rolling," and "DMJ's
employees did not have any dunnage or wedges on the bottom of the rebar cage
to prevent rolling."
The report also indicated that Union Paving offered an operator to assist
in assembling the frame but DMJ declined the offer. Therefore, there were no
Union Paving employees present or assisting DMJ at the time of the accident.
DMJ's authored incident report described the cause of the accident as,
"[i]nsufficient ground preparation and precautionary bracing of cage to prevent
rolling/shifting." DMJ's report also noted to "add a chock underneath the cage
to prohibit the possibility of any unwanted movement." Plaintiff contends that
Union Paving failed to ensure DMJ created its own Safety and Health Plan.
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Following plaintiff's accident, the Bayonne police arrived at the scene and
notified OSHA.2 An investigation was conducted by OSHA against DMJ but
not Union Paving. Plaintiff sued Union Paving alleging negligence. Union
Paving filed a motion for summary judgment.
After hearing arguments, the Law Division judge granted Union Paving's
motion for summary judgment on August 2, 2019. In his written opinion, the
judge found Union Paving employees were not assisting DMJ at the time of
plaintiff's accident, "nor were they even allowed to." The judge noted, "[i]t was
unforeseeable that [p]laintiff would fail to properly use dunnage or wedges on
the bottom of the rebar cage to prevent rolling, as he had previously don e in the
past. Therefore, it was not foreseeable that [p]laintiff would fail to do so here."
The judge stated plaintiff was a "well-trained, experienced ironworker"
who was "familiar with 'chocking.'" Citing Muhammad v. N.J. Transit, 176 N.J.
185, 199 (2003), the judge concluded Union Paving "did not have a duty to
protect DMJ from a hazard created by the performance of the contract work, and
2
Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651 to 678.
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should be absolved of any liability." A memorializing order was entered and
this appeal ensued. 3
On appeal, plaintiff argues that the trial court erred in granting summary
judgment to Union Paving because as a general contractor, Union Paving owed
a non-delegable duty to subcontractor employees to assure safe work practices.
II.
Summary judgment must 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 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). Under Brill, "a determination [of] whether there exists a 'genuine
issue' of material fact that precludes summary judgment requires the [court] to
consider 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." 142 N.J. at 540.
3
On August 14, 2019, plaintiff executed a stipulation of dismissal without
prejudice as to the remaining claims against DMJ.
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Because "appellate courts 'employ the same standard [of review] that
governs the trial court[,]'" we review these determinations de novo, and the "trial
court rulings 'are not entitled to any special deference.'" Henry v. N.J. Dep't of
Human Servs., 204 N.J. 320, 330 (2010) (alteration in original) (citations
omitted).
Plaintiff argues that Union Paving retained control over the subcontractors
at the site. The expert report submitted by plaintiff's expert, Howard Tepper,
opined that Union Paving "violated numerous OSHA regulations" and standards
applicable to a general contractor on a multi-employer worksite. Tepper also
opined that Union Paving failed to properly inspect and monitor the delivery of
the steel and breached its duty to ensure subcontractors, such as DMJ, were
proceeding pursuant to a Site Specific Safety Plan.
The immunity of a general contractor or landowner "[is not] disturbed by
the exercise of merely such general superintendence as is necessary to insure
that the []contractor performs his agreement . . . ." Muhammad, 176 N.J. at 199(alterations in original) (quoting Wolczak v. Nat'l Elec. Products Corp., 66 N.J.
Super. 64, 71 (App. Div. 1961)); accord Tarabokia v. Structure Tone, 429 N.J.
Super. 103 (App. Div. 2012). Liability is "not warranted where the . . .
'supervisory interest relates [only] to the result to be accomplished, not to the
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means of accomplishing it.'" Mavrikidis v. Petullo, 153 N.J. 117, 135 (1998)
(second alteration in original) (quoting Majestic Realty Assocs., Inc. v. Toti
Contracting Co., 30 N.J. 425, 431 (1959)).
Even under plaintiff's version of events, Union Paving did not control the
means or methods of DMJ's work. No evidence shows Union Paving instructed
plaintiff or DMJ personnel on rebar installation and caisson frame assembly. To
the contrary, the record is clear that the subcontract between the parties fully
delegated the work to DMJ, who was required to furnish labor, materials, and
"competent supervision."
Thus, Union Paving did not engage in "direct interference which
proximately cause[d] injury to the employees of the subcontractor." Wolczak,
66 N.J. Super. at 71; see Muhammad, 176 N.J. at 197. We recognize that if a
general contractor or landowner generally retains control of the manner and
means of doing the work, he "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 . . . ." Mavrikidis, 153 N.J. at 135. As set forth above, Union Paving did
not retain such control. Plaintiff has failed to proffer any evidence that Union
Paving exercised control over plaintiff or DMJ's work.
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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). The principal is not vicariously liable
for the torts of the independent contractor if the principal did not direct or
participate in them. Baldasarre v. Butler, 132 N.J. 278, 291 (1993). "[W]here
a person engages a contractor, who conducts an independent business by means
of his own employees, to do work not in itself a nuisance . . . he is not liable for
the negligent acts of the contractor in the performance of the contract." Majestic
Realty, 30 N.J. at 430-31. As set forth above, Union Paving did not retain such
control.
As aptly pointed out by the judge, plaintiff's accident was "proximately
caused by DMJ's failure to properly secure the caisson frame with dunnage or
other chocking material," and "the means and methods of performing the DMJ
[w]ork were delegated to DMJ under the parties' [s]ubcontract." Accordingly,
Union Paving is not liable under Muhammad.
Finally, plaintiff asserts Union Paving failed to create a Site Specific
Safety Plan to address the construction of the caisson frames. In his report,
plaintiff's expert surmised that Union Paving was a "creating employer," a
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"correcting employer," a "controlling employer," and an "exposing employer,"
as defined by OSHA. We are unpersuaded by plaintiff's argument.
Here, there was no evidence that Union Paving committed any OSHA
violations. Indeed, OSHA conducted an investigation of DMJ and declined to
investigate Union Paving. The record supports the judge's finding that Union
Paving hired Leading Edge, Safety & Health Department to perform a "safety
inspection" at the jobsite. Accordingly, Union Paving is not liable. Therefore,
the judge properly granted Union Paving's motion for summary judgment.
We conclude that plaintiff's remaining arguments—to the extent we have
not addressed them—lack sufficient merit to warrant any further discussion in a
written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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