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Smith v. Kris-Bal Realty Inc.

Decided: July 10, 1990.

FRANK SMITH, PLAINTIFF-APPELLANT,
v.
KRIS-BAL REALTY, INC., DEFENDANT-RESPONDENT, AND MICHAEL BALSAMO, DEFENDANT



On appeal from the Superior Court of New Jersey, Law Division, Ocean County.

King, Shebell and Baime. The opinion of the court was delivered by King, P.J.A.D.

King

[242 NJSuper Page 347] This case involves the use of a safety code, specifically regulations under the federal Occupational Safety and Health Act, as part of the basis for an expert's opinion on the duty of

care owed to plaintiff, a business invitee. We conclude that the OSHA code, when used in connection with expert testimony, may be relied upon to illustrate industry standards and to provide support for the opinion of an expert on the proper standard of care under McComish v. DeSoi, 42 N.J. 274, 200 A.2d 116 (1964), even though plaintiff was a business guest at the marina, not a worker.

Plaintiff appeals following a defendant's verdict in a personal injury action. He sued the owner of a marina, Kris-Bal Realty Co. in Belmar, where he fell while getting off a vessel. The vessel was a 75-foot fishing trawler owned by Robert Soleau, plaintiff's business associate. Soleau's vessel regularly docked at the marina. He routinely sold fish to the marina's owner. While visiting Soleau, his friend and business associate, on board Soleau's fishing trawler, plaintiff was a business invitee, to whom the marina owner owed a duty of ordinary care. Brown v. Racquet Club of Bricktown, 95 N.J. 280, 290, 471 A.2d 25 (1984). To our knowledge, plaintiff never sued the vessel or its owner.

The vessel was moored about three or four feet from the dock at the time of the accident. Plaintiff claimed that his fall and injuries occurred because the owner of the marina had failed to provide any ladders or gangways to assist him in getting on and off the vessel safely.

Plaintiff presented the testimony of his expert, Dr. McNeill, a marine and mechanical engineer, on the duty of due care owed by the marina owner. McNeill's general thesis was that the marina owner had a duty to provide a gangway or other means of safe access to and from the vessel plaintiff was visiting, or at least to provide appropriate warnings instructing people not to jump from dock to boat or vice versa in the absence of such devices. McNeill estimated that without a suitable gangway, the actual distance from the boat to the dock at the time of accident would have been about four feet, three inches. This, he felt, was "a tremendous distance to try to step or jump

over." According to McNeill, an effective gangway would have cost the marina owner about $200 to build.

McNeill placed the duty to provide a gangway or other safe access squarely on the owner of the marina, in the circumstance. For this conclusion he relied in part on the "standards of the Occupational Safety and Health Act" of 1970. 29 U.S.C.A. ยงยง 651 to 678. He testified that OSHA standards "are promulgated for safety, for the safety of the employees, the employers and those that are using the terminals . . . . Those that are invited upon the particular area." He also testified that OSHA standards "are industry-wide standards." The defendant, to the contrary, claimed that the owner of the vessel had the sole duty to provide a gangway or ladder.

The judge removed from the jury's consideration any reliance which McNeill placed on OSHA standards. In response to a motion to strike at the end of plaintiff's case, the judge ruled that OSHA regulations "are not applicable in this case." In his final instruction to the jury the judge stated:

You will recall that Doctor McNeill testified that in his opinion the dock in question was a marine terminal, and that based upon his experience and knowledge, it is the responsibility of the dock owner to provide the means for people to go on and off the boats docked there.

You may recall that Doctor McNeill also testified that OSHA or the Occupational Safety and ...


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