Estefano Franchini v. March Associates Construction, Inc. ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-2428-22
ESTEFANO FRANCHINI,
Plaintiff-Appellant,
v.
MARCH ASSOCIATES
CONSTRUCTION, INC. and
GLENPOINTE ASSOCIATES IV,
LLC,
Defendants-Respondents,
and
MARCH ASSOCIATES
CONSTRUCTION, INC.,
Defendant/Third Party
Plaintiff-Respondent,
v.
BENDER ENTERPRISES, INC.
a/k/a BENDER ELECTRIC,
Third-Party Defendant.
______________________________
Submitted April 23, 2024 – Decided July 16, 2024
Before Judges Sumners and Perez Friscia.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Docket No. L-8065-18.
Ginarte Gallardo Gonzalez & Winograd, LLP,
attorneys for appellant (John Ratkowitz, on the briefs).
Law Offices of James H. Rohlfing, attorneys for
respondents (D. Scott Conchar, on the brief).
PER CURIAM
Plaintiff Estefano Franchini was injured at a hotel construction site in
Teaneck when the ladder he was on slipped and fell down. At the time,
Franchini was employed by electrical sub-contractor Bender Enterprises, Inc.
Defendant March Associates Construction, Inc. was general contractor for the
hotel owner defendant Glenpointe Associates IV, LLC.
Franchini appeals the motion court's summary judgment dismissal of his
negligence claims against March Associates.1 The court held March Associates
did not owe a duty of reasonable care to Franchini. We reverse because we
1
The motion judge also granted summary judgment dismissal of claims against
Glenpointe, which Franchini did not oppose. Although March Associates and
Glenpointe are both named in the merits brief opposing Franchini's appeal, the
brief only raises arguments concerning March Associates because Franchini
only appeals the summary judgment granted to March Associates.
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conclude that as a matter of law, March Associates owed Franchini a duty of
care due to the contractual agreements between Glenpointe, March Associates,
and Bender Enterprises, and there are genuinely disputed material facts as to
whether March Associates breached that duty.
I.
We glean the following facts from the summary judgment record.
Franchini had to install electric boxes on the wall of an electrical room. To do
so, he used an extension ladder he retrieved from a supply closet inside the
electrical room. The ladder was missing a section and rubber footings. After
Franchini climbed up the ladder to attach tubing against the wall, the ladder
slipped and fell to the ground, causing him to fracture his right wrist. The ladder
had always been at the construction site and was used by other subcontractors'
employees. There is no proof who owned the ladder or brought it to the
construction site.
As the construction project's general contractor, March Associates'
agreement with Glenpointe required it to "provide overall construction
management services," supervise subcontractors, conduct safety inspections,
"retain primary responsibility for site safety," and ensure its subcontractors
follow its "Site Safety Program and Manual" (safety manual). It also had the
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right to sanction unsafe subcontractors and to extend its disciplinary policy to
subcontractors' employees, enabling it to reprimand or even dismiss them from
a construction site for safety infractions. The safety manual specifically
addressed the "potential hazards" of using ladders because they "are a major
source of injuries and fatalities among construction workers." The manual
required all ladders "be inspected by a competent person on a periodic basis and
after any occurrence that could affect their performance," and structurally
defective ladders "be tagged with 'Do Not Use' or similar language and
withdrawn from service until repaired." The manual also incorporated by
reference Occupational Safety and Health Administration (OSHA) regulations
on ladders, 29 C.F.R. §§ 1926.1050-.1060. Like the safety manual, OSHA
mandated ladders "be inspected by a competent person for visible defects on a
periodic basis and after any occurrence that could affect their safe use ." 29
C.F.R. § 1926.1053(b)(15).
Bender Enterprises' subcontractor agreement with March Associates
required it to "employ only methods of construction, erection, hoisting, rigging,
forming, scaffolding and cribbing and use only tools, structures, etc., at the
Project site that conform to OSHA and other Legal Requirements," and
implement other specified safety measures. The agreement required that
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Bender Enterprises comply with March Associates' safety program, and
authorized March Associates to stop any work it deemed unsafe until Bender
Enterprises addressed March Associates' safety concerns.
March Associates' safety director Frank Brady contends subcontractors'
ladders were inspected and he visited the construction site once to twice a week
"to make sure subcontractors were working safely." However, he did not recall
personally inspecting the electrical room where the ladder was stored. He
further stated he did not know "what type of ladders" Bender Enterprises used,
as subcontractors did not have to tell March Associates when they brought
ladders to the site. According to Brady, if a March Associates' representative
saw part of an extension ladder separated from the whole, they would instruct
the ladder's owner to repair it or remove it from the construction site. However,
March Associates' site supervisor Daniel Allds, who "walk[ed] the site" every
day, testified "if he saw just the top part to an extension ladder, he would just
let it be because if it is just laying there, no one using it, there's" no "safety issue,
unless the ladder had apparent damage to it." Allds also stated he did "not
inspect the ladders that the subcontractors brought to the jobsite."
II.
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Franchini sued defendants for negligence, seeking damages for his injury.
March Associates impleaded Bender Enterprises. At the close of discovery,
defendants moved for summary judgment. The court issued an order and written
decision granting defendants summary judgment, finding they did not owe
Franchini a duty of care.
The motion court rejected Franchini's argument that March Associates
owed him a duty of care because it violated 29 C.F.R. § 1926.1053(b)(15), could
have foreseen he "would be injured while using a defective ladder, and . . .
should have known that the ladder [he] was using was defective based on the
relationship between [March Associates and Bender Enterprises] and because
the ladder was used prior to and after" he was injured. Quoting Alloway v.
Bradlees, Inc., 157 N.J. 221, 235-36 (1999), and Tarabokia v. Structure Tone,
429 N.J. Super. 103, 112 (App. Div. 2012), the court recognized that the OSHA
violations, though "pertinent in determining the nature and extent of any duty of
care" a general contractor may owe, do not by themselves create an enforceable
duty with respect to Franchini.
The court found Franchini provided no proof that "March [Associates]
failed to perform daily inspections of the construction [site]," "knew or should
have known" workers were using a defective ladder, or owned or controlled the
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specific ladder he had used, which "was kept in a storage closet in the electrical
room" Bender Enterprises employees used. The court emphasized Bender
Enterprises had to supply its own equipment and March Associates only had to
"ensure there were no visible defects." It found Bender Enterprises was
responsible under the contract for providing safety training to its employees and
ensuring its equipment satisfied OSHA regulations. The court further noted
Franchini's expert, William Mizel, not OSHA itself, opined March Associates
had violated OSHA regulations.
Franchini appealed.2
III.
In examining the summary judgment under de novo review, Globe Motor
Co. v. Igdalev, 225 N.J. 469, 479 (2016), we apply the same Brill3 standard that
bound the motion court. Townsend v. Pierre, 221 N.J. 36, 59 (2015); W.J.A. v.
D.A., 210 N.J. 229, 237 (2012). This requires us to examine the record in the
2
This court dismissed Franchini's initial appeal, which he withdrew because
March Associate's third-party claims remained before the trial court. In a March
6, 2023 stipulation of dismissal, March Associates agreed to dismiss those
claims "pending the outcome of any" future appeal by Franchini. Franchini re-
filed his appeal on April 18, 2023, with his case information statement
mentioning only the trial court's ruling as to March Associates. This court
deemed his new appeal timely.
3
Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520 (1995).
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light most favorable to Franchini, the opponent of the successful summary
judgment motion. Brill, 142 N.J. at 540. Summary judgment is proper if the
record demonstrates "no genuine issue as to any material fact challenged and
that the moving party is entitled to a judgment . . . as a matter of law." Burnett
v. Gloucester Cnty. Bd. of Chosen Freeholders, 409 N.J. Super. 219, 228 (App.
Div. 2009) (quoting R. 4:46-2(c)).
IV.
March Associates' summary judgment motion turns on whether it owed a
duty of care to Franchini, and if so, whether there are undisputed facts that it
breached its duty, which proximately caused Franchini's injury. See Jersey
Cent. Power & Light Co. v. Melcar Util. Co., 212 N.J. 576, 594 (2013) (holding
that, to prove a defendant's tort liability, a plaintiff must prove a duty of care, a
breach of that duty, actual and proximate causation, and damages). We address
these issues in turn.
A. Duty of Care
Whether a party owes a duty to another party is a question of law for the
court to decide, not the fact finder. Rivera v. Cherry Hill Towers, LLC, 474 N.J.
Super. 234, 240 (App. Div. 2022). In the seminal case of Hopkins v. Fox &
Lazo Realtors, our Supreme Court held the existence of a duty of reasonable
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care depends on "the relationship of the parties, the nature of the attendant risk,
the opportunity and ability to exercise care, and the public interest in the
proposed solution." 132 N.J. 426, 439 (1993). In Alloway, the Court
specifically addressed the precise situation here: whether a general contractor
owed "a duty to assure the safety of an employee of a subcontractor" who uses
"equipment supplied by the subcontractor" at the general contractor's work site .
157 N.J. at 225, 233. The Court fine-tuned the Hopkins factors, pronouncing
"the foreseeability of harm, the relationship between the parties, and the
opportunity and capacity to take corrective action" determine whether imposing
"a duty of reasonable care" constitutes "fairness and sound policy." Id. at 233.
Applying these principles leads us to conclude that March Associates owed
Franchini a duty of reasonable care in making sure the ladder he used was safe.
Foreseeability examines "whether the defendant was reasonably able to
ascertain that [its] allegedly negligent conduct could injure the plaintiff in the
manner it ultimately did." Robinson v. Vivirito, 217 N.J. 199, 212 (2014) (citing
McDougall v. Lamm, 211 N.J. 203, 225-26 (2012)). Foreseeability also
analyzes "whether the defendant had actual or constructive knowledge of the
risk of injury and 'is susceptible to objective analysis.'" Rivera, 474 N.J. Super.
at 241 (quoting J.S. v. R.T.H., 155 N.J. 330, 338 (1998)).
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Franchini argues foreseeability of his accident is evident from March
Associates' safety manual, which called for safety precautions intended to
prevent injuries caused by defective ladders, and OSHA's ladder safety
regulations. March Associates thus had the responsibility to inspect ladders
used by Bender Enterprises' employees and keep a defective ladder from being
used. He also relies upon Mizel's opinion that March Associates had a duty
under OSHA to remove the unsafe ladder.
March Associates contends that under Alloway's balancing test, it did not
owe a duty to Franchini. First, Bender Enterprises was responsible for its own
employees' safety per its subcontractor agreement and March Associates' safety
manual. Second, based on Tarabokia, the risk of harm was unforeseeable
because "the mere presence of [an otherwise undamaged] top portion of an
extension ladder" separated from the rest of the ladder does not establish March
Associates should have known a safety hazard existed, as the ladder presented
no "immediate or obvious" safety risk and no evidence shows anybody from
March Associates ever saw the ladder in use. Third, March Associates was not
involved in the "means and methods" of Bender Enterprises' work and did not
provide any of the tools Bender Enterprises' employees used. March Associates
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stresses the ladder did not belong to it and was kept in Bender Enterprises'
supply closet.
March Associates also argues "Mizel['s expert opinion] cites to no OSHA
regulation that imposes an obligation to remove an otherwise undamaged top
portion of an extension ladder" from a construction site, nor does he identify
"any regulation that requires a general contractor . . . to inspect the tools used
by subcontractors." Therefore, it argues Franchini cannot use Mizel's opinion
to oppose summary judgment.
Our review of the record and the applicable law support Franchini's
arguments. As to the parties' relationship, a duty is warranted if there was "a
clear connection" between the subcontractor's employees' individual tasks and
the general contractor's interests in the overall project. Alloway, 157 N.J. at
233. As to opportunity and capacity, a duty is appropriate if the defendant had
"authority and control to take or require corrective measures to address safety
concerns" affecting the project. Carvalho v. Toll Bros. & Devs., 143 N.J. 565,
576 (1996). No duty is warranted if a general contractor retained "broad, general
superintendence over the overall results" but "exerted no control over the means
and details of" subcontractors' work. Tarabokia, 429 N.J. Super. at 120.
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March Associates' contracts with Bender and Glenpointe did not
themselves create a duty of care under tort law. See Saltiel v. GSI Consultants,
Inc., 170 N.J. 297, 316 (2002). But contracts can show the plaintiff was "within
the 'range of harm' emanating from" the defendant's activities, warranting
imposition of a duty of care. See Carter-Lincoln Mercury, Inc. v. EMAR Grp.,
135 N.J. 182, 195-96 (1994). A defendant may owe a duty of reasonable care if
a contractual obligation "contemplated the [defendant's] active participation and
involvement" at a project site. E.g., Carvalho, 143 N.J. at 574. A contract might
also establish foreseeability if its terms expressly "provided for the specific
possibility of" certain harm "and prescribed contractual duties addressed to
those concerns." E.g., ibid.Based upon the parties' detailed contractual agreements, March
Associates, as general contractor, had responsibility over Bender Enterprises'
sub-contracting work to ensure the work was safely performed––including the
use of ladders––to the benefit of Bender Enterprises' employees. March
Associates had the motive, means, and opportunity to control Bender
Enterprises' work. Bender Enterprises had to follow March Associates' safety
manual, which mandated specific practices and subjected Bender employees to
March Associates' disciplinary policy. The agreement and manual allowed
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March Associates to dictate minute details of Bender Enterprises' work, which
March Associates could unilaterally stop. While Bender Enterprises was
required to supply its own materials and equipment, those items had to meet
March Associates' safety standards. March Associates employees
acknowledged that they controlled the construction site and delineated Bender
Enterprises' work. March Associates even dictated the frequency and content of
Bender Enterprises' safety meetings with its own employees. And any safety
issues from Bender Enterprises' work as subcontractor "would have resulted in
an interruption and a delay in" the overall project, for which March Associates
was in turn contractually obligated to Glenpointe. See Alloway, 157 N.J. at 233.
March Associates' duty to Franchini is supported by Mizel's expert
opinion. Mizel examined Bender Enterprises' subcontractor agreement and
opined March Associates "developed and required all contractors to follow their
safety program" and "controlled the means and methods of the contractors by
scheduling when they could start working, following up on progress, supervising
work, inspecting tools and equipment such as ladders and having authority to
remove defective tools and equipment from the jobsite" and "stop unsafe work
practices." He further opined March Associates violated several OSHA
regulations, including 29 C.F.R. § 1926.1053(b)(15), which requires ladders be
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inspected "for visible defects" periodically and "after any occurrence that could
affect their safe use." March Associates' argument regarding Mizel's report is
unpersuasive because "the failure by OSHA to find a violation against a
particular party does not preclude a determination that the party nevertheless
was subject to" and failed to follow an OSHA regulation. Alloway, 157 N.J. at
240; see also Costa v. Gaccione, 408 N.J. Super. 362, 373 (App. Div. 2009)
(holding "violations of OSHA are to be considered with other 'fairness' factors
in determining the existence of a duty and the duty's scope"). Furthermore,
because Franchini satisfies the Alloway factors, an OSHA violation supports
imposing a duty. Cf. Slack v. Whalen, 327 N.J. Super. 186, 195-96 (App. Div.
2000) ("Since [the] plaintiff failed to present proof to satisfy any of the factors
required by Alloway for determining the existence of a duty, the mere fact that
OSHA regulations may have been violated at the worksite is not sufficient to
create a legal duty on defendants to have avoided the risk of injury to [the]
plaintiff in this case.").
This is unlike the situation in Tarabokia, where the plaintiff suffered a
latent injury caused by repeatedly using a tool his employer, the subcontractor,
instructed him to use without first giving him the appropriate protective
equipment. 429 N.J. Super. at 117-18. There, we held the risk of harm was
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unforeseeable because the potential harm was not apparent at the time of injury.
Ibid. Here, it was reasonably foreseeable that Franchini could fall and injure
himself by using a ladder with no rubber footings to prevent it from slipping.
Under these circumstances, it is fair and sound public policy to impose a duty
on March Associates given its comprehensive role as general contractor to
ensure safety at the construction site. See Carvalho, 143 N.J. at 573 (imposing
a duty of reasonable care involves not just foreseeability of harm but also "on
an analysis of public policy, that the actor owed the injured party a duty of
reasonable care" (quoting Kelly v. Gwinnell, 96 N.J. 538, 544 (1984))).
B. Breach of Duty
Given our determination that March Associates owed Franchini a duty of
reasonable care regarding the use of the ladder, the next question is whether the
duty was breached. This is a question of fact, Jerkins v. Anderson, 191 N.J. 285,
305 (2007), which cannot be resolved on this summary judgment record.
There is no proof that a March Associates representative saw the ladder
before Franchini fell and injured himself. Nevertheless, considering March
Associates' safety duties, a reasonable jury could infer that given the unsafe
ladder's use before Franchini's accident, it should have thoroughly inspected the
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construction site to prevent its use by Franchini. Thus, summary judgment
should not have been granted.
Reversed and remanded for trial. We do not retain jurisdiction.
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