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Mears v. Sandoz Pharmaceuticals

May 21, 1997

MICHAEL MEARS, PLAINTIFF-APPELLANT,
v.
SANDOZ PHARMACEUTICALS, INC., RISE STEEL CORPORATION, AND BEAVERTOWN CAST STONE, DEFENDANTS, AND WALSH CONSTRUCTION COMPANY, A DIVISION OF GUY F. ATKINSON COMPANY, AND DAURIO & RUSSO & SONS CONSTRUCTION COMPANY, DEFENDANTS-RESPONDENTS.



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

Approved for Publication May 23, 1997.

Before Judges Michels, Muir, Jr., and Coburn. The opinion of the court was delivered by Michels, P.j.a.d.

The opinion of the court was delivered by: Michels

The opinion of the court was delivered by

MICHELS, P.J.A.D.

Plaintiff Michael Mears appeals from a summary judgment of the Law Division entered in favor of defendants Walsh Construction Company, a Division of Guy F. Atkinson Company (Walsh), and Daurio & Russo & Sons Construction Company (Daurio) in this personal injury, construction accident case.

On December 11, 1990, plaintiff, an iron worker employed by defendant Rise Steel Corporation (Rise Steel), was working on a construction project at the premises of defendant Sandoz Pharmaceuticals, Inc. (Sandoz) in East Hanover, New Jersey. Plaintiff had obtained his job through his union hall. Walsh was the general contractor on the job while Rise Steel was one of many subcontractors.

Plaintiff had been at the job site for approximately two weeks. His duty was to weld precast stone panels onto the steel girders of a recently constructed three-story structure known as Building 405. He had to weld the panels from atop the roof of the new building. Although there were different ways to access the roof, such as stairs, the closest means available to plaintiff was a scaffold. The scaffold was made of tubular steel with cross bracing and was composed of sections measuring five feet by approximately five feet. The scaffold did not have a safety railing encompassing its top platform. Apparently, the scaffold was positioned within a stairwell and rose to nearly the height of the roof.

On December 11, 1990, plaintiff had climbed and descended the scaffold two or three times without incident. On his third or fourth descent, he stepped onto the upper platform of the scaffold from the roof with a bucket of tools in one hand, and he felt something collapse under his foot. Plaintiff, however, testified during his deposition that he could not recall whether the scaffold collapsed or whether he simply fell. In any case, plaintiff next remembered falling approximately five feet before banging his head and shoulders on concrete steps. Plaintiff then rolled down the stairs, thereby falling and rolling a total of approximately twenty-eight feet.

As a result of the fall, plaintiff was semi-conscious, although he did not break any bones. However, he did have back and neck pain, a headache, and was disoriented. Plaintiff was sent home by the shop steward and the foreman, and did not return to work for one or two days. After the accident, Kerry Flynn, another worker at the site, dismantled the scaffold and placed it on the side of the building.

In December 1991, approximately a year after the accident, plaintiff consulted an attorney, and on December 8, 1992, plaintiff instituted this action against Sandoz, Rise Steel, and several John Doe and John Roe defendants to recover damages for the personal injuries he sustained as a result of the December 11, 1990 accident. On May 19, 1994, plaintiff moved to amend his complaint to add Walsh as a defendant, but the trial court denied the motion. On September 19, 1994, on a motion for reconsideration, the trial court granted plaintiff leave to amend the complaint to include Walsh as a defendant, and on September 27, 1994, plaintiff filed a second amended complaint, naming Walsh as a defendant.

On November 28, 1994, Walsh filed a third-party complaint against defendant Beavertown Cast Stone (Beavertown). On March 3, 1995, the trial court granted plaintiff leave to file a third amended complaint to add Beavertown as a direct defendant, and plaintiff filed that complaint on March 13, 1995. On June 19, 1995, the trial court granted plaintiff leave to file a fourth amended complaint to add Daurio as a direct defendant, and on June 23, 1995, the fourth amended complaint was filed. On July 11, 1995, Walsh filed cross-claims against Rise Steel, Beavertown, and Daurio. On August 15, 1995, the trial court granted summary judgment in favor of Sandoz.

Thereafter, Walsh and Daurio moved for summary judgment, contending that plaintiff's complaint was barred by the statute of limitations. Daurio also claimed that plaintiff's expert's report was an inadmissible net opinion and that plaintiff failed to make out a prima facie case against it. Following argument, the trial court granted summary judgment in favor of both Daurio and Walsh on the ground that the complaint was time-barred. The trial court also agreed that plaintiff's expert opinion was a net opinion and was inadmissible to establish that either Walsh or Daurio deviated from the accepted standard of care required of them. Plaintiff appealed.

Plaintiff seeks a reversal of the summary judgment and a remand for further proceedings, contending that the trial court erred in granting summary judgment because (1) Walsh and Daurio were properly named under the fictitious party procedure of R. 4:26-4; (2) Walsh was under a nondelegable duty to use reasonable care for the safety of persons in and around the Sandoz job site; (3) plaintiff's expert's opinion was not a net opinion and instead established a prima facie case of negligence against Walsh and Daurio; and (4) plaintiff raised ...


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