Paul Wettengel v. Asa Design Build, LLC ( 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NOT FOR PUBLICATION WITHOUT THE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-2118-22
PAUL WETTENGEL,
Plaintiff-Appellant,
v.
ASA DESIGN BUILD, LLC,
and RIDGEDALE AVENUE
DEVELOPMENT, LLC,
Defendants-Respondents.
_____________________________
Argued September 24, 2024 – Decided October 17, 2024
Before Judges Smith and Vanek.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Docket No. L-6156-19.
Francis X. Garrity argued the cause for appellant
(Garrity, Graham, Murphy, Garofalo & Flinn, PC,
attorneys; Francis X. Garrity, on the briefs).
Robert B. Nussbaum argued the cause for respondent
ASA Design Build, LLC (Saiber LLC, attorneys;
Robert B. Nussbaum, on the brief).
Gerald Kaplan argued the cause for respondent
Ridgedale Avenue Development, LLC (Methfessel &
Werbel, attorneys; Gerald Kaplan, on the brief).
PER CURIAM
Plaintiff Paul Wettengel appeals the denial of his motion for
reconsideration of a January 6, 2023 order granting summary judgment to
defendants ASA Design Build, LLC (ASA) and Ridgedale Avenue
Development, LLC (Ridgedale) and dismissing plaintiff's complaint for
personal injuries. After a thorough review of the record, we reverse the trial
court's order denying plaintiff's motion for reconsideration, reverse the portion
of the January 6 order granting summary judgment to ASA, and vacate and
remand as to the summary judgment granted to Ridgedale.
I.
Since our review of the denial of plaintiff's motion for reconsideration
requires us to determine whether the trial court's order granting summary
judgment to both defendants was palpably incorrect, we set forth the salient facts
in the record viewed in the light most favorable to plaintiff. Crisitello v. St.
Theresa Sch., 255 N.J. 200, 218 (2023).
Ridgedale retained ASA as general contractor for the renovation of a
house Ridgedale owns in Madison, New Jersey (Property). Section 1.9 of the
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general specifications incorporated into the architectural plan (the
Specifications) state the general contractor shall have control over and
responsibility for all safety precautions connected with the work. At his
deposition, Ridgedale representative, John Hand testified that Ridgedale
expected ASA to oversee the work of all subcontractors, obtain required permits,
and be present on the construction site on a regular basis to determine work was
proceeding in accordance with OSHA 1 and other codes, as well as the
construction plans.
Hand testified ASA had the duty to ensure safety standards were met and
had the responsibility to keep the job site clear of any trash and debris. Hand
testified that Ridgedale's expectation was ASA's project manager would ensure
material left on the job site, stairs and adjacent grounds would be cleaned up
every night to avoid safety hazards. He also testified ASA had laborers come to
the job site from time to time to clean up.
Hand testified Ridgedale hired certain subcontractors with which it had a
prior relationship, such as the painter and the kitchen cabinet company.
Ridgedale was also responsible for hiring the snow removal contractor for the
premises. Hand testified that, although ASA was the general contractor, he also
1
Occupational Safety & Health Act, 29 C.F.R. § 1926 (2014).
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visited the site from time to time on behalf of Ridgedale to see if the contractors
were working and to ask them questions regarding the project.
Plaintiff was employed by Woodworks Flooring Company (Woodworks),
a subcontractor hired to install new flooring inside the house. Woodworks was
contacted by Ridgedale to meet with ASA at the job site and provide a quote for
the work.
Upon arriving at the job site to begin work in December 2018, plaintiff
saw the site was "sloppy" and complained to ASA, asking that the site be cleaned
up. ASA gave "pushback" to the request, causing plaintiff to call Ridgedale
directly about the issue. When plaintiff returned the next day, there was no
debris obstructing his ability to work. ASA was present on the job site while he
worked in December 2018.
Plaintiff returned to the job site to perform additional work in January and
February 2019. Plaintiff asserts that when he arrived on February 19, he saw
the work site was again cluttered and in disarray. Plaintiff also observed snow
around the exterior of the building and went upstairs to begin working. He then
decided to take garbage to the outside dumpster. The next thing plaintiff
remembers is waking up "lying on top of [plywood]" in the driveway "adjacent"
to the dumpster. Plaintiff tried to get up but kept slipping on the plywood.
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There were no eyewitnesses to the fall. Nor were there any safety officers
on the job site at the time of the incident, no safety precautions in place to
prevent injury to contractors, no safety inspections conducted prior to plaintiff's
injury, and no safety background checks performed for the contractors on the
job site. ASA did not investigate the accident after it occurred.
Plaintiff could not recall walking towards the dumpster, arriving at the
dumpster with the garbage, or falling, but is certain he fell "[b]ecause some time
afterwards, . . . I guess I just came to." Plaintiff remembered trying to get inside
the house to a closet off the foyer he knew was dark so he could sleep. He also
remembered seeing cardboard on the ground all the way up the stairs.
When plaintiff woke up in the closet, his pants were wet from the fall
because there was snow in the driveway. He managed to make his way into his
work van parked in the driveway and fell asleep again. Plaintiff drove home
after he was awakened by another contractor.
Once home, plaintiff thought he had a migraine, so he decided to go to
sleep early. His wife noticed he was bleeding from his head and took him to
Morristown Medical Center where he was diagnosed with a subarachnoid
hemorrhage and placed in intensive care.
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After cognitive testing, plaintiff presented with several challenges,
including impairment of: short- and long-term memory; problem solving;
cognitive orientation; sequencing; reasoning; and safety awareness. Plaintiff
was discharged from the hospital and went to rehabilitation. The medical record
shows plaintiff did not recall falling and had no recollection of the surrounding
events, including how he sustained his head laceration.
Plaintiff's expert, William Mizel, CSP, Risk Management Services,
reviewed the Specifications and opined that ASA was the general contractor
with general supervisory authority and safety responsibility over the entire job
site. Mizel stated that neither ASA nor Ridgedale had any type of written safety
manual or safety documentation to provide to subcontractors, nor did ASA
establish a site-specific safety plan for the project.
After reviewing photographs plaintiff's wife took of the job site when she
went there to retrieve his cell phone three or four days after his fall, Mizel
concluded material located on the exterior of the job site caused slip and fall
hazards both on the steps as well as near the dumpster. Mizel opined that ASA,
as general contractor, did not ensure its subcontractors followed basic safety or
OSHA standards and the lack of safety procedures led to plaintiff working in
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unsafe conditions and proximately caused his injuries. Mizel did not issue an
opinion as to Ridgedale's liability.
Defendants moved for summary judgment, asserting plaintiff could not
prove their negligence was the proximate cause of his injury. On January 6,
2023, the trial court granted summary judgment to Ridgedale and ASA,
supported by an oral statement of reasons.
The court found ASA had the duty to maintain the cleanliness and safety
of the job site. The court next found Ridgedale did not owe plaintiff a duty to
maintain the job site or to clear the plywood on the ground near the dumpster,
since it delegated that duty to ASA.
The trial court also found plaintiff failed to meet his burden on causation,
despite the fact that plaintiff was throwing debris in the dumpster when the
incident occurred. The trial court determined plaintiff only presented
speculation that his injuries were caused by cardboard, plywood, or snow, which
would in turn lead to speculation by the jury on the issue of causation. The trial
court found plaintiff's expert opinion was not probative on the question of ASA's
liability because there was only speculation, not facts, for the court to rely upon.
As a result, the court found plaintiff's liability theory failed on causation.
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On reconsideration, the trial court again found plaintiff was unable to
show a causal link between his injury and the condition of the job site, even
assuming both defendants breached a duty of care to him. The trial court found
the causation proofs fell far short of that required to prove a negligence case,
stating:
What's relevant to this motion is that we can't have
juries engaging in speculation. Did he trip? Did he
fall? Was it snow? Did it happen as he was coming
down the steps? We know he ended up next to the
dumpster.
....
[T]he [c]ourt believes circumstantial evidence could be
sufficient to submit to a jury. But we don't even have
that here. We don't have that next step. Was there
negligence and was it the proximate cause? . . . Just
because it was negligence on the job site has nothing to
do with this particular case. At least there's no evidence
of that sufficient to go to a jury.
The trial court denied plaintiff's motion for reconsideration in its February
10, 2023 order. This appeal followed.
II.
We begin by addressing defendants' procedural argument that, because
plaintiff filed an amended notice of appeal only as to the February 10, 2023
order denying plaintiff's motion for reconsideration, our review is confined to
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that order and should not substantively address the January 6 order granting
summary judgment to both defendants. We are not persuaded.
Since the January 6 order was referenced in plaintiff's CIS, our review of
the trial court's reconsideration order comports with prevailing decisional law.
See Silviera-Francisco v. Bd. of Educ. of Elizabeth, 224 N.J. 126, 142 (2016)
(deeming the order "clearly identified . . . in [a] [CIS] submitted with [a] Notice
of Appeal" as properly before the court for review). We discern no prejudice to
defendants since the substantive issues presented on summary judgment were
identified in the CIS and briefed by all parties on appeal.
III.
A.
We review a trial judge's decision to grant or deny a motion for
reconsideration under Rule 4:49-2 for an abuse of discretion. Branch v. Cream-
O-Land Dairy, 244 N.J. 567, 582 (2021). "'Reconsideration is a matter within
the sound discretion of the [c]ourt, to be exercised in the interest of justice.'"
Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996) (quoting D'Atria
v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)). Reconsideration is
appropriate where "'1) the [c]ourt has expressed its decision based upon a
palpably incorrect or irrational basis, or 2) it is obvious that the [c]ourt either
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did not consider, or failed to appreciate the significance of probative, competent
evidence . . . .'" Ibid. (quoting D'Atria, 242 N.J. Super. at 401).
Because plaintiff argues the trial court erred in denying reconsideration
where he established the summary judgment granted to both defendants was
palpably incorrect, we turn to the well-known standard of review. "We review
a trial court's grant of summary judgement de novo, applying the same standard
as the trial court." Hyman v. Rosenbaum Yeshiva of North Jersey, 474 N.J.
Super. 561, 572 (App. Div.), certif. granted, 255 N.J. 419 (2023). Summary
judgment is appropriate "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). "To decide
whether a genuine issue of material fact exists, the trial court must 'draw[] all
legitimate inferences from the facts in favor of the non-moving party.'"
Friedman v. Martinez, 242 N.J. 449, 472 (2020) (quoting Globe Motor Co. v.
Igdalev, 225 N.J. 469, 480 (2016)).
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B.
We review plaintiff's arguments under this lens and turn to the question of
whether the trial court's grant of summary judgment was palpably incorrect. See
Fusco v. Bd. of Educ. of City of Newark, 349 N.J. Super. 455, 461 (App. Div. 2002).
Plaintiff contends the trial court erroneously granted summary judgment to
Ridgedale, along with ASA, since they owed plaintiff a duty to ensure safe working
conditions over the worksite they ensured. Similarly, ASA contends Ridgedale was
a co-general contractor.
Plaintiff also asserts that granting summary judgment to both defendants was
palpably incorrect because there was sufficient circumstantial evidence upon which
a jury could find causation. Plaintiff's theory of the case is that either slipping or
tripping on the snow-covered plywood caused his fall. He further posits that his
head injury, is a fact which should be considered, along with other circumstantial
evidence, by a jury in determining the cause of plaintiff's fall.
C.
"For a plaintiff to prevail on a claim of negligence, he or she must prove '(1)
a duty of care; (2) a breach of that duty; (3) proximate cause; and (4) actual
damages.'" Jacobs v. Jersey Cent. Power & Light Co., 452 N.J. Super. 494, 504
(App. Div. 2017) (quoting Townsend v. Pierre, 221 N.J. 36, 51 (2015)). Thus, the
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first step in the negligence analysis is determining whether each of the defendants
owed plaintiff a duty.
The parties do not dispute ASA owed a duty to plaintiff under prevailing New
Jersey law. However, the trial court's determination of whether Ridgedale owed
plaintiff a duty is contested. Based on our review of the record and prevailing law,
we conclude the trial court failed to set forth its findings of fact and conclusions of
law pursuant to Rule 1:7-4 as to its determination Ridgedale owed no duty to
plaintiff.
Plaintiff cites to Slack v. Whalen, 327 N.J. Super. 186, 194 (App. Div. 2000),
agreeing a property owner owes no duty—so long as it gave the general contractor
exclusive control. "[O]rdinarily where 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 Assoc., Inc. v. Toti Contracting Co., 30 N.J. 425,
431-32 (1959); Bahrle v. Exxon Corp., 145 N.J. 144, 156 (1996).
However, under our jurisprudence, a property owner who engages a
contractor may be held liable for the wrongful conduct of its independent contractors
in some instances including, (1) when the principal retains control over the manner
and means of doing the work the contractor provided; and (2) when the principal has
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engaged an incompetent contractor. Majestic, 30 N.J. at 431; Mavrikidis v. Petullo,
153 N.J. 117, 133 (1998). A principal engaging an independent contractor may
properly exercise the general control necessary to create the contractual terms and
monitor compliance therewith, but this does not equate with control over the means
and manner of the job performance. Muhammad v. N.J. Transit, 176 N.J. 185, 196
(2003). In other words, to impose liability on a property owner, it must be shown
that the property owner exercised active participation in the manner of the work.
Ibid.We have previously recognized that "whether, in a given context, 'a duty to
exercise reasonable care to avoid the risk of harm to another exists is [a question] of
fairness and policy that implicates many factors.'" Funtown Pier Amusements, Inc.
v. Biscayne Ice Cream, 477 N.J. Super. 499, 512 (App. Div. 2024) (citing Coleman
v. Martinez, 247 N.J. 319, 337 (2021)). We first consider the foreseeability of harm
to the plaintiff and then analyze whether accepted fairness and policy considerations
support the imposition of a duty. Ibid. (citing Coleman, 247 N.J. at 338).
"[T]o evaluate . . . the relevant fairness and policy
considerations at issue, [the Supreme Court] has
adopted a test that requires 'identifying, weighing, and
balancing several factors—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.'" Coleman, 247 N.J. at 338
(quoting Hopkins v. Fox & Lazo Realtors, 132 N.J. 426,
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439 (1993)). Accordingly, "all considerations must be
balanced 'in a "principled" fashion, leading to a
decision that both resolves the current case and allows
the public to anticipate when liability will attach to
certain conduct.'" Ibid. (quoting G.A.-H v. K.G.G., 238
N.J. 401, 414 (2019)).
[Funtown, 477 N.J. Super. at 513.]
Here, while Ridgedale contractually delegated broad duties and oversight
to general contractor ASA, the record shows Ridgedale took actions which a
finder of fact might find are indicia of control. Ridgedale hired certain
subcontractors for specific portions of the project, including plaintiff's company,
who was contacted by Ridgedale's representative to meet with ASA and quote
the job. Ridgedale's representative also visited the site from time to time to see
if the contractors were present and proceeding with work, and to ask questions
of those contractors. The record also shows that, after Ridgedale received a
complaint from plaintiff about job site conditions, the site safety issue was
rectified.
Whether a duty exists is a question of law for the trial court to decide.
Rivera v. Cherry Hill Towers, LLC, 474 N.J. Super. 234, 240 (App. Div. 2022)
(citing Robinson v. Vivirito, 217 N.J. 199, 208 (2014)). Our review of the record
reveals the trial court made no findings, based on evidence in the record, to
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support its determination that Ridgedale owed no duty to plaintiff. See Rule
1:7-4.
For this reason, we vacate the order granting summary judgment to
Ridgedale, and remand to the trial court to determine whether Ridgedale owes
plaintiff a duty of care consistent with our jurisprudence, and then make the
required findings of fact and conclusions of law pursuant to Rule 1:7-4. We
express no opinion as to the outcome of the court's analysis on remand.
D.
We next turn to plaintiff's argument that the trial court erred by not submitting
circumstantial evidence of causation to a jury. We reverse the trial court's order
granting summary judgment to ASA, finding the record presented sufficient credible
evidence to create a genuine issue of material fact on the issue of causation.
"[C]ourts have defined 'proximate cause' as a 'cause which in the natural
and continuous sequence, unbroken by an efficient intervening cause, produces
the result complained of and without which the result would not have occurred.'"
Cruz-Mendez v. Isu/Ins. Servs., 156 N.J. 556, 575 (1999) (quoting Daniel v.
Dep't of Transp., 239 N.J. Super. 563, 595 (App. Div. 1990)). "The burden of
proof rests upon the plaintiff to prove a causal relationship by a preponderance
of the evidence." Dawson v. Bunker Hill Plaza Assocs., 289 N.J. Super. 309,
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322 (App. Div. 1996) (citing Vuocolo v. Diamond Shamrock Chems. Co., 240
N.J. Super. 289, 293 (App. Div. 1990)). "Thus, a plaintiff must show that a
defendant's conduct constituted a cause-in-fact of his injuries." Ibid. (citing
Kulas v. Pub. Serv. Elec. & Gas Co., 41 N.J. 311, 317 (1964)).
"[A]lthough plaintiffs bear the burden of proving causation, 'they are not
obliged to establish it by direct, indisputable evidence.'" Thorn v. Travel Care,
Inc., 296 N.J. Super. 341, 347 (App. Div. 1997) (quoting Kulas, 41 N.J. at 319).
"Plaintiff's burden of proving proximate cause can be established by
circumstantial evidence." Bergquist v. Penterman, 46 N.J. Super. 74, 89 (App.
Div. 1957).
"'Proof that will justify a reasonable probability as distinguished from
mere possibility is all that the law requires.'" Ocasio v. Amtrak, 299 N.J. Super.
139, 153 (App. Div. 1997) (quoting Mazzietelle v. Belleville Nutley Buick Co.,
46 N.J. Super. 410, 417 (App. Div. 1957)). "The matter may rest upon legitimate
inference, so long as the proof will justify a reasonable and logical inference as
distinguished from mere speculation." Beyer v. White, 22 N.J. Super. 137, 144
(App. Div. 1952). Once a prima facie showing is established, "[p]roximate
cause is a factual issue, to be resolved by the jury after appropriate instruction
by the trial court." Scafidi v. Seiler, 119 N.J. 93, 101 (1990).
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Though plaintiff admits "he could not identify what caused him to fall,"
plaintiff contends he presented sufficient evidence from which a jury could
reasonably find causation. Plaintiff argues the only obstruction he encountered
was "plywood on the ground" in front of the dumpster, shown in the photographs
of the site taken by plaintiff's wife a few days after the fall. Plaintiff further
argues the plywood was slippery because it was covered in snow as evidenced
by the fact that his pants were wet when he woke up. Plaintiff posits a jury
should have been permitted to draw inferences from the evidence to "logically
conclude that [plaintiff] slipped on the plywood as he was discarding debris in
the dumpster."
While ASA argues plaintiff's evidence and expert testimony did not
provide the degree of certainty needed to ascribe fault to defendants, that is not
the standard, at this stage of the proceedings. Plaintiff must show an inference
of probability that could lead a jury to find defendants caused plaintiff's injury.
See Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh,
224 N.J. 189, 199 (2016).
We conclude plaintiff presented sufficient circumstantial evidence from
which a jury could determine ASA did not properly maintain the job site and
ASA's failure caused his injury. Resolution of this jury question does not
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involve speculation, but rather, a determination as to whether the circumstantial
evidence presented establishes negligence by a preponderance of the evidence.
Bergquist, 46 N.J. Super. at 77, and Ocasio, 299 N.J. Super. at 143, both
cited by plaintiff, support our conclusion. In both cases we found sufficient
circumstantial evidence to present a jury question on causation. We reject
defendants' attempt to distinguish Bergquist and Ocasio based on the lack of
eyewitnesses to plaintiff's fall and plaintiff's inability here to remember the exact
circumstances of his fall due to his head injury. Precluding plaintiff from
presenting circumstantial evidence of causation in this case would be contrary
to the principles of fairness underpinning our justice system and prejudicial to a
plaintiff who, the record shows, has sustained a serious head injury while
working alone.
It follows that we reverse the trial court's order of summary judgment
granted to ASA. Should the trial court find Ridgedale owed plaintiff a duty on
remand, our conclusions on the causation issue shall equally apply to Ridgedale.
The February 10, 2023 order is reversed. The January 6, 2023 order is
reversed in part and vacated and remanded in part. We do not retain jurisdiction.
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