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Kane v. Hartz Mountain Industries

Decided: December 13, 1994.


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

Before Judges Shebell, Skillman and Wallace. The opinion of the court was delivered by Shebell, P.J.A.D.


The opinion of the court was delivered by SHEBELL, P.J.A.D.

In this personal injury action, plaintiff appeals from an adverse jury verdict. On December 20, 1985, plaintiff, John Kane, was severely and permanently injured, while working as an iron worker, when he fell from a beam. The beam was part of a structural steel frame being erected by his employer, Eastern Steel Erectors (Eastern), for a warehouse being constructed for Hartz-Claiborne Limited Partnership (Hartz-Claiborne) in North Bergen.

On March 9, 1987, plaintiff filed a complaint seeking damages for his injuries against Hartz Mountain Industries, Inc. (Hartz Mountain), the general contractor; Joseph Romeo, Hartz Mountain's construction superintendent, and other unknown defendants. Plaintiff alleged that defendants failed to keep the premises reasonably safe and failed to comply with applicable federal and state safety codes. Thereafter, amended complaints were filed adding as defendants, Hartz-Claiborne, Howell Steel, Inc. (Howell), Nacamuli Associates (Nacamuli), Hartz Mountain Development Corporation (Hartz Development), Liz Claiborne, Inc., Kenneth Carl Bonte and Keith A. Michaels.

The facility was being built by Hartz-Claiborne, a limited partnership formed for this purpose. Hartz-Claiborne was comprised of Liz Claiborne, an apparel manufacturer, Hartz Mountain, a major developer, and Hartz Development, the owner of the land (we refer to these parties collectively as the Hartz defendants). Hartz-Claiborne had no employees of its own. Apparently Hartz Mountain acted as the general contractor in its role as a partner in

Hartz-Claiborne. Hartz-Claiborne entered into an agreement with Howell, a South Carolina corporation, whereby Howell agreed to furnish all labor, materials and equipment necessary to complete structural steel work on the project. The contract specified that Howell was responsible for full compliance with safety standards. Howell, being in the business of steel fabrication only, subcontracted with Eastern, plaintiff's employer, for the erection of the structural steel. This contract had a "safety" subsection whereby Eastern agreed to be solely responsible for complying with OSHA and all other applicable safety regulations. Eastern agreed to indemnify and hold harmless Howell and the 'owner" of the project from any losses or claims arising out of Eastern's work on the project.

Howell, the Hartz defendants, Nacamuli and Liz Claiborne all filed answers generally denying liability and seeking indemnification and contribution from one another. Howell joined Eastern as a third-party defendant, alleging that Eastern's negligence had caused the injury to plaintiff, Eastern's employee, and that Eastern had contractually agreed to indemnify Howell for any personal injuries arising out of Eastern's performance of its subcontract with Howell.

In February 1989, Eastern answered maintaining that its July 1985 indemnification agreement with Howell was contrary to public policy under N.J.S.A. 2A:40A-1. On September 26, 1990, summary judgment was granted to Eastern on the grounds that the indemnification agreement was void. In June 1991, Howell's motion to vacate the summary judgment in favor of Eastern was granted. The decision was based on our holding in Secallus v. Muscarelle, 245 N.J. Super. 535, 586 A.2d 305 (App. Div. 1991), that indemnification was invalid under N.J.S.A. 2A:40A-1 only where the party to be indemnified was the sole negligent party.

Prior to the commencement of trial, Nacamuli moved to prevent plaintiff's experts from stating the law, or opining as to whom OSHA regulations were applicable. The trial Judge agreed with the thrust of Nacamuli's motion and, throughout the presentation

of plaintiff's case, limited the testimony of plaintiff's expert. The Judge also ruled that defendants could present evidence of plaintiff's comparative negligence.

On the first day of trial, the Judge, following the holding in White v. Newark Morning Star Ledger, 245 N.J. Super. 606, 586 A.2d 341 (Law Div. 1990), determined that Eastern would be allowed to participate in the trial. An eight day trial followed. At the close of plaintiff's case, plaintiff dismissed its complaint as to Romeo and Hartz Development. On September 24, 1992, the jury returned a verdict of no cause for action as to Nacamuli and the remaining Hartz defendants. plaintiff's motion for a new trial was denied and plaintiff appeals to this court.

The trial testimony reveals that on December 20, 1985, a cold and rainy day, the forty-three year old plaintiff, hired out of the local union hall, had been working on the site for a few days. He had about twelve years of experience in structural steel erection as an "iron worker." The warehouse under construction was to be a three-story structure with a roof. The floors were designated as "ground," "first," and "second." Eastern was the only contractor on the site that day. Construction had not yet advanced to the point where the concrete slab for the ground floor was in place, and no decking or flooring was in place over the steel frame at the upper levels.

Upon returning from lunch, because of poor weather conditions, the decision was made to cease work. Plaintiff and his foreman, Craig Dillon, went up the partially erected steel structure to retrieve their tools and to secure the site for the weekend. They proceeded to tighten up the "turn buckle" on one of the steel welds in order to "plumb up" the steel columns. Plaintiff was sitting on a beam at the level which would be the floor of the third story upon completion. This was a distance of approximately twenty-nine feet from the ground. His feet were locked underneath the beam when a strap, which secured the weld to the column, snapped. Plaintiff lost his balance and fell to the rocky ground, sustaining catastrophic injuries. Robert Shaw, also a

foreman, testified that the ground within the frame of the steel structure, where he saw plaintiff after the fall, was "a rocky area." He explained: "It was hard -- hard dirt and rock around the area."

Plaintiff presented the testimony of a civil engineer, William Poznak. The trial Judge ruled that Poznak could not testify as to the content of the OSHA regulation applicable to this job, because it was a matter of law for the court to instruct the jury on. Poznak was allowed to testify that 29 C.F.R. § 1926.105 was one of several safety regulations generally accepted within the construction industry as governing the use of safety nets. However, he was not allowed to read the regulation to the jury.

29 C.F.R. § 1926.105(a) reads:

Safety nets shall be provided when workplaces are more than 25 feet above the ground or water surface, or other surfaces where the use of ladders, scaffolds, catch platforms, temporary floors, safety lines, or safety belts is impractical.

Poznak noted that the Associated General Contractors of America has a similar standard in its accident prevention manual, as does the National Safety Council. Poznak also testified that there may be special conditions, such as the existence of rubble or machinery below the work area, which make it necessary to provide nets or protection such as temporary decking, for a lesser height than specified in the OSHA regulations. His opinion was that there had been a violation of applicable safety standards in connection with plaintiff's accident because of the failure to provide nets.

Poznak further testified that it is generally accepted in the construction industry that a general contractor is responsible for the overall protection of workers on a job site, and that a sub-contractor selected to perform particular work is also responsible for ensuring compliance with the regulations applicable to that part of the project.

Poznak also opined that Nacamuli, the structural engineer hired to perform construction inspections, was thereby responsible to report all safety violations. Poznak stated that safety nets are neither difficult nor time consuming to place. He also commented that safety belts were not practicable when iron workers were

doing "bolting up" work. He explained that they have to be able to move "like rabbits" to avoid being hit by the steel, which may swing as it is being hoisted up.

Seymour Bodner, the Hartz defendants' engineering expert, viewed the controlling OSHA standard as 29 C.F.R. § 1926.750, part of the section on Steel Erection. 29 C.F.R. § 1926.750(b)(2)(i), provides:

Where skeleton steel erection is being done, a tightly planked and substantial floor shall be maintained within two stories or 30 feet, whichever is less, below and directly under that portion of each tier of beams on which any work is being performed, except when gathering and stacking temporary floor planks on a lower floor, in preparation for transferring such planks for use on an upper floor. Where such a floor is not practicable, paragraph (b)(1)(ii) of this section applies.

[(Emphasis added.)]

Bodner interpreted § 1926.750(b)(2)(i) to require planking or flooring within two stories of a work area even if less than thirty feet, but he maintained that a ground surface can constitute, or substitute for, the "tightly planked and substantial floor" required by 29 C.F.R. § 1926.750(b)(2)(i). Through this interpretation, he concluded that defendants were in compliance with ...

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