JOEL RIVERA VS. PNL JERSEY PROPERTIES, LLC (L-2146-15, PASSAIC COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2266-17T4
JOEL RIVERA,
Plaintiff-Appellant,
v.
PNL JERSEY PROPERTIES,
LLC, and PNL COMPANIES,
Defendants,
and
MILES SQUARE ROOFING,
CO., INC.,
Defendant/Third-Party
Plaintiff-Respondent,
v.
GUILIANO ENVIRONMENTAL,
Third-Party Defendant.
______________________________
Submitted February 5, 2019 – Decided March 25, 2019
Before Judges Hoffman and Firko.
On appeal from Superior Court of New Jersey, Law
Division, Passaic County, Docket No. L-2146-15.
Pitts & Polizzi, LLP, attorneys for appellant (Dennis G.
Polizzi, of counsel and on the briefs).
Oleske & Oleske, LLP, attorneys for respondent (Jerald
F. Oleske, on the brief).
PER CURIAM
Plaintiff Joel Rivera, an employee of roofing subcontractor Guiliano
Environmental (Guiliano), appeals from the Law Division order granting the
summary judgment dismissal of his personal injury lawsuit against defendant
Miles Square Roofing (MSR), the general contractor on the jobsite where
plaintiff sustained severe injuries when he fell through a hole in the roof. We
reverse.
I.
Because this appeal stems from a motion for summary judgment, we view
the facts in a light most favorable to plaintiff as the non-moving party. See Brill
v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). In March 2013,
PNL Jersey Properties (PNL) retained Sheldon Gross Realty, LLC (Gross) to
serve as its management agent for a commercial building in Avenel, including
contracting for all repairs or alterations to the building. In July 2013, Gross
hired MSR to replace the roof on the building.
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MSR's contract provided that PNL must approve all subcontractors and
that MSR retained responsibility for "safety barriers . . . OSHA compliance,
[and] safety compliances and procedures throughout the course of the work."
MSR then hired Guiliano to remove the roof from PNL's building. 1 Plaintiff
worked for Guiliano for "[a]bout two and a half years" before this accident.
Prior to bidding on the project, MSR conducted an inspection of the roof
and discovered plywood sheets covering several holes in the roof. These
plywood sheets appeared "as bumps in the roof." MSR knew the plywood
patches posed safety concerns.
Based upon working with Guiliano on prior projects, MSR's project
manager explained that an MSR foreman would mark a section of roof for
Guiliano to rip up each night and MSR workers would replace that section of
the roof the next work day. On July 16, 2013, plaintiff and other Guiliano
workers arrived at PNL's building at 3:30 a.m., after working over eight hours
at another job-site; by that time, other workers had already cut portions of the
roof for removal. According to plaintiff, "We were only going to pick up the
1
The record before us does not include a copy of the contract between MSR
and Guiliano; however, it appears undisputed that Guiliano did not sign the
contract until two days after plaintiff's accident.
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3
roof and clean." Flood lights provided illumination for Guiliano employees to
do their removal work.
Within thirty minutes of his arrival, plaintiff fell twenty-five to thirty feet
through an unguarded hole in the roof. According to plaintiff, he sustained a
"traumatic brain injury, multiple skull based fractures, displaced fracture of the
left superior pubic ramus, left sacroiliac fracture, severe low back injury" and
related injuries. He remained in a coma for a week and a half, and his medical
bills exceeded $265,000.
MSR did not have a foreman on site at the time of plaintiff's fall, contrary
to its contract with PNL. Nor did MSR provide OSHA mandated equipment
such as harnesses and guardrails, again in violation of its contract with PNL. 2
After plaintiff's accident, MSR's operation manager learned that Guiliano
workers had used "a rhino" on the roof and "[t]hat the deck was damaged by
[the] rhino." He described a rhino as "basically a motorized wedge with
agitat[ing] blade . . . used to pick the roofing up," after a roofer cuts the roof
into sections. He further stated that MSR "never uses a rhino on a metal deck
2
Guiliano also did not provide any safety equipment to plaintiff, not even a
hardhat. Plaintiff did wear safety glasses, which he purchased himself.
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roof." Following plaintiff's accident, he told Guiliano to discontinue using the
rhino because of the damage it does to the roof, and Guiliano complied.
Guiliano previously performed subcontract work numerous times for
MSR. According to MSR, in the prior instances, MSR "placed all responsibility
for safety equipment, the means and methods of the roof removal work, and the
supervision of employees of Guiliano engaged in the roof removal on
[Guiliano]." The record contains no evidence that Guiliano ever provided safety
equipment to its workers on the previous jobs for MSR. Instead, workers
brought their own safety equipment, or worked without it.
OSHA regulations required various safety measures that were absent the
day plaintiff fell. Employees working on surfaces more than six feet above
ground must be "protected from falling through holes . . . by personal fall arrest
systems, covers, or guardrail systems erected around such holes." 29 C.F.R. §
1926.501(b)(4)(i). Employers were also required to instruct employees to
control hazards. 29 C.F.R. § 1926.21(b)(2). OSHA also required regular
inspections by persons responsible for initiating and maintaining an accident
prevention program. 29 C.F.R. § 1926.20(b)(2).
Both parties provided expert witness reports by the discovery end date,
but plaintiff's report was served beyond the deadline established in a case
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management order. Along with its summary judgment motion, MSR moved to
bar plaintiff's liability expert because it was served almost two months late.
Plaintiff filed a cross-motion for summary judgment and for permission to
utilize his liability expert, notwithstanding the late service of his report. The
court granted MSR's summary judgment motion and denied both sides' expert
witness applications, apparently treating them as moot.
II.
In a written statement of reasons granting MSR's motion for summary
judgment, the motion judge rejected plaintiff's argument that MSR, as general
contractor, breached its duty to maintain a safe workplace. The judge found:
[MSR] did not participate in this demolition work and
did not exercise control over Guiliano's equipment,
means and methods on the site. [MSR] was not present
at the time of plaintiff's injury, provided no equipment
or assistance to Guiliano, [was] completely unaware of
Guiliano's decision to permit plaintiff to remain on the
roof without a harness. Under the circumstances,
[MSR] cannot under fairness and reasonableness
grounds be said to have breached a duty to the plaintiff.
It was proper for [MSR] to accept that after the exterior
inspection of the rules by Guiliano[,] that Guiliano's
management would notify its employees of the
condition of the roof . . . . Moreover, here [MSR] did
not exercise sufficient supervisory oversight to render
the injury foreseeable.
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The judge acknowledged that MSR completed an inspection of the roof
"before the work commenced and knew of holes or weakness in conditions on
the roof due to layers of roof." She further noted plaintiff's argument that MSR
"was contractually required to have a foreman on the site when Guiliano was
working at night" and that the operations manager for MSR stated he would have
stopped work if he saw Giuliano employees working on the roof without
harnesses. Nevertheless, the judge found that Guiliano, not MSR, controlled the
worksite. The judge further found that MSR's safety-related duties under his
contract with PNL, and its own risk control policies, did not create a duty owing
to plaintiff.
On appeal, plaintiff asserts that MSR breached a duty owed to plaintiff to
provide a safe work environment.
III.
We review the trial court's grant of summary judgment de novo. Lapidoth
v. Telcordia Techs., Inc., 420 N.J. Super. 411, 417 (App. Div. 2011). We apply
the same standard as the trial court. Prudential Prop. & Cas. Ins. Co. v. Boylan,
307 N.J. Super. 162, 167 (App. Div. 1998). We "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
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alleged disputed issue in favor of the non-moving party." Brill, 142 N.J. at 540.
We review issues of law de novo. Manalapan Realty, LP v. Twp. Comm. of
Manalapan, 140 N.J. 366, 378 (1995).
Our analysis is guided by the principles adopted by the Court in Alloway
v. Bradlees, Inc., 157 N.J. 221 (1999) and in Kane v. Hartz Mountain Indus.,
Inc., 143 N.J. 141 (1996), aff'g o.b., 278 N.J. Super. 129 (App. Div. 1994). We
must determine whether MSR owed a duty to assure plaintiff's safety. Whether
a duty is owed raises an issue of law for the court. Anderson v. Sammy Redd &
Assocs., 278 N.J. Super. 50, 56 (App. Div. 1994).
In Kane, we held a general building contractor was liable to an employee
of a steel framing subcontractor who fell from a steel beam. 278 N.J. Super. at
129. We relied in part on the employer's failure to install safety nets, which
OSHA regulations required. Id. at 137. While we held violations of OSHA
regulations do not establish negligence per se, "OSHA regulations are pertinent
in determining the nature and extent of any duty of care." Id. at 142; Alloway,
157 N.J. at 236. Compliance with OSHA regulations does not preclude a finding
of negligence, nor does non-compliance compel a finding of negligence.
Alloway, 157 N.J. at 237.
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Along with considering OSHA standards, a trial court must weigh other
factors relevant to the "determination of the existence of a duty of reasonable
care under 'general negligence principles' . . . ." Id. at 230. This determination
implicates consideration of the foreseeability of the risk of injury; the
relationship of the parties; the nature of the attendant risk; the opportunity and
ability to exercise care; and the public interest. Ibid.Applying these standards, we find that MSR owed a duty of care to
plaintiff as a matter of law. Initially, MSR assumed the duty to ensure OSHA
and other safety standards were followed. MSR's contractual obligation to
comply with OSHA's fall prevention standard favors imposition of a duty.
Further, the other factors addressed in Alloway also favor imposing upon
MSR a duty of care owing to plaintiff. The risk of a fall through the roof was
foreseeable. Here, defendant MSR had knowledge of plywood sheets covering
holes in the roof. MSR's Vice President, Kirk Hollis, admitted he inspected the
roof before bidding on the project and observed the holes in the roof his
company needed to replace. The parties do not dispute this fact. Actual
knowledge of a dangerous condition may be sufficient to find a duty. Carvalho
v. Toll Bros. & Developers, 143 N.J. 565, 576-77 (1996).
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In Carvalho, knowledge of a dangerous condition resulted in a duty. The
defendant's engineers were supervising a project during the course of which pipe
was laid in trenches. Id. at 570, 575. One trench collapsed, killing the plaintiff.
Id. at 572. The defendant's engineer had actual knowledge of the dangerous
condition because he had learned that on the days prior, other trenches had
collapsed. Id. at 574. The defendant's engineer, who was on site and could have
addressed the problem, did not take adequate safety measures to negate risks of
injury or death to workers on the site. See id. at 577-78. Thus, the defendants
had actual knowledge of the risk of harm and the court imposed a duty.
Likewise here, defendant had actual knowledge of the dangerous
condition after discovering the holes during its inspection of the roof. The
parties do not dispute defendant's knowledge. Further, defendant had promised
the building owner that it would exercise supervision over all of the roofing
work and provide all required safety equipment.
As to the relationship between the contractor and subcontractor, although
there is no evidence of common ownership, the record indicates Guiliano
worked closely with MSR on numerous prior projects.
The nature of the risk also supports imposing a duty against MSR.
Although the risk of falling is present in virtually any roof work, the risk in this
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case arose from the nature of the worksite where the work was performed, and
the absence of safety measures connected with that worksite. Plaintiff's risk did
not arise out of the methods and means of removing old roofing material.
Plaintiff was not injured by a tool provided by his employer. Cf. Tarabokia v.
Structure Tone, 429 N.J. Super. 103 (App. Div. 2012) (holding general
contractor was not liable to electrical subcontractor's employee for injury caused
by use of subcontractor's power tool without proper safety gloves, and general
contractor exerted no control over the use of the tool). Rather, plaintiff was
injured because the roof where he worked was not made safe.
MSR also possessed the opportunity and ability to exercise care which
could have avoided plaintiff's injury. Reducing the risk of a fall was within the
general contractor's expertise or knowledge. MSR is a roofing specialist.
Indeed, once Guiliano completed its work removing the old roof, MSR expected
its own employees to mount the same roof, where they would face risks
comparable to those plaintiff and his fellow Guiliano workers faced. At that
point, MSR would have borne directly, for the sake of its own employees, the
same duty to prevent falls that plaintiff seeks to impose for the sake of the
subcontractor's employees.
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MSR unquestionably had the opportunity and the authority to install fall
prevention devices. The roofing contract between MSR and the building owner
required MSR to exercise control over the site, to make it safe, and to prevent
accidents. In the contract, MSR promised to supervise all work and provide all
safety equipment necessary for the work.
The public interest supports imposing a duty of care upon MSR for
plaintiff's benefit. We have held the "public policy of this State . . . favors the
general contractor as the 'single repository of the responsibility for the safety of
all employees of a job.'" Dawson v. Bunker Hill Plaza Assocs., 289 N.J. Super.
309, 321 (App. Div. 1996) (quoting Kane, 278 N.J. Super. at 141).
Further, although subcontractors generally have sufficient knowledge,
training, and experience to understand the inherent risks in their line of work,
see Tarabokia, 429 N.J. Super. at 213 ("[A] general contractor may assume that
the independent contractor and [its] employees are sufficiently skilled to
recognize the dangers associated with their task and adjust their methods
accordingly to ensure their own safety.") (quoting Accardi v. Enviro-Pak
Systems Co., Inc., 317 N.J. Super. 457, 463 (App. Div. 1999)). This is not
dispositive.
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MSR previously worked with plaintiff's employer on numerous prior
occasions. According to plaintiff, Guiliano never provided any safety
equipment. On the other hand, MSR contracted to provide all necessary safety
equipment. While the contract is not dispositive, it would result in unfairness
to allow MSR to promise to provide all required safety equipment only to use a
company it regularly hired that never provided even bare minimum safety
equipment to its workers, particularly when MSR knew of the dangerous
conditions associated with the roof.
"[T]he paramount consideration of a worker's safety is more clearly
placed in focus by a more comprehensive rule which makes the primary
contractor and each tier of subcontractor responsible for the safety of the
workers under them on general negligence principles." Kane, 278 N.J. Super.
at 143. Finding MSR owed plaintiff a duty in this instance fully complies with
this mandate. Therefore, we find MSR owed a duty to plaintiff.
Because the motion judge concluded this case was ripe for the entry of
summary judgment in favor of MSR, she did not address the parties' applications
concerning the late report of plaintiff's liability expert. Because we conclude it
would likely benefit the jury to hear the testimony of an expert from each side
in this case, and considering the catastrophic injuries sustained by plaintiff and
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the absence of any prejudice to MSR by the late service of plaintiff's expert
report, we conclude, in the interests of justice, that plaintiff should be permitted
to utilize his liability expert at trial. On remand, the trial court shall reopen
discovery for thirty days to permit counsel for MSR to depose plaintiff's expert.
Reversed and remanded. We do not retain jurisdiction.
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