On appeal from the Superior Court, Law Division, Atlantic County.
Gaulkin, Dreier and Scalera. The opinion of the court was delivered by Gaulkin, P.J.A.D.
In these appeals, which we now consolidate for disposition, plaintiff Deborah A. Meder challenges the dismissal of her action at the conclusion of all of the proofs (A-2577-88T5), and third-party defendant Claremont Interior Contractors, Inc. (Claremont) challenges a pretrial order denying its motion to dismiss the third-party complaint of defendant Resorts International Hotel, Inc. (Resorts) for indemnification (A-2969-88T5).
The litigation arose out of the death of plaintiff's husband Christopher J. Meder (Meder) while employed by Claremont in the construction of a high-rise hotel building for Resorts. Resorts had contracted with Claremont to stock the building with metal, metal studs and sheet rock. Meder was employed as a signalman by Claremont, assigned to receive the materials as they were delivered to each floor by a crane. While Meder was so engaged on the 13th floor, an accident occurred which resulted in his falling or being thrown from the building to the ground.
Plaintiff brought her action against a number of defendants, all of which, except for Resorts, were either dismissed prior to trial or settled during trial. At the conclusion of all the proofs, the trial judge dismissed the action against Resorts, concluding that there was no "basis for the independent finding of negligence and culpability against [Resorts]." The judge accordingly dismissed Resorts' third-party complaint for indemnification against Claremont. Plaintiff now appeals from the dismissal of her action against Resorts (A-2577-88T5). Claremont appeals from the trial judge's pretrial determination that Claremont was contractually obligated to indemnify Resorts unless "Resorts is perchance found to be the only negligent defendant;" at oral argument, counsel for Claremont represented that his appeal need be addressed only if we reverse the dismissal of plaintiff's complaint against Resorts.
The essence of plaintiff's claim is that Resorts acted as general contractor and thereby assumed a duty to provide a safe place for Meder to work. Certain conditions of the work place, plaintiff says, violated applicable regulations of the Occupational Health and Safety Administration (OSHA). Relying on Bortz v. Rammel, 151 N.J. Super. 312, 376 A.2d 1261 (App.Div.1977), cert. den., 75 N.J. 539, 384 A.2d 518 (1977), plaintiff says that Resorts is responsible for those unsafe conditions. Resorts concedes that it hired the various contractors on the job and assumed the responsibility of coordinating their work, but asserts that it did not attempt to direct or control the manner in which they performed their contracts. Resorts contends that the alleged unsafe conditions were "due to the actions of Claremont and its employees," and that Resorts is not liable either as owner or general contractor "for injuries to employees of the subcontractor resulting from either the condition of the premises or the manner in which the work is performed," citing Wolczak v. National Electric Products Corp., 66 N.J. Super. 64, 168 A.2d 412 (App.Div.1961).
Plaintiff's proofs at trial were not sufficiently focused to permit us to recite with particularly each of the allegedly unsafe conditions for which plaintiff ascribed responsibility to Resorts. However, at least two unsafe conditions were identified. First, it was undisputed that at the time of the accident Meder was tethered to the building superstructure by a 3/8 inch polypropylene rope rather than a 3/4 to 7/8 inch manila hemp rope required, plaintiff's expert testified, by OSHA regulations. See 29 C.F.R. § 1926.104(c). Second, although the perimeter of the open 13th floor had been enclosed by safety cables, those cables had been partially removed to accommodate the "monster", a large movable platform which received the materials hoisted by the crane; it was in that vicinity that Meder fell or was thrown from the building. That condition was arguably a violation of OSHA regulations. See 29 C.F.R. § 1926.500. Thus the record discloses at least two conditions which a jury might find to have violated OSHA regulations and to have proximately caused the accident. The question is whether Resorts is responsible for those conditions.
As Resorts points out, Wolczak recited and applied the general principle that
Absent control over the job location or direction of the manner in which the delegated tasks are carried out, the general contractor is not liable for injuries to employees of the subcontractor resulting from either the condition of the premises or the manner in which the work is performed.
Bortz, however, found that rule to have been "substantially qualified by subsequent legislative action." 151 N.J. Super. at 319, 376 A.2d 1261. The court there took note of the adoption, following the "restrictive decision" in Wolczak, of the Construction Safety Act, N.J.S.A. 34:5-166 et seq., which was
expressly designed to protect the health and safety of all construction employees as well as the public in general by requiring all construction employers to comply with all safety rules and regulations promulgated under the act.
Id. Of "primary importance," the Bortz court held, was N.J.A.C. 12:180-3.15.1, part of the Construction Safety Code promulgated ...