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Alloway v. Bradlees Inc.

February 24, 1999

TERRY ALLOWAY, PLAINTIFF-APPELLANT, AND GREG ALLOWAY, HUSBAND AND WIFE, PLAINTIFF,
v.
BRADLEES, INC., SHOPRITE, INC., VORNADO, INC., FRED BERNHARD EXCAVATING CO., K & F CONSTRUCTION COMPANY, RICHARD J. WISE, JACK UTZ, PERMCO., INC., DANA CORP., MAC TRUCK, JOHN DOE (SAID NAME BEING FICTITIOUS), RICHARD ROE (SAID NAME BEING FICTITIOUS), ABC, INC., (SAID NAME BEING FICTITIOUS), EFG, INC., (SAID NAME BEING FICTITIOUS) AND HIJ CO. (SAID NAME BEING FICTITIOUS), DEFENDANTS, AND PAT PAVERS, INC., AMERICAN REFRIGERATION, AMERICAN MANAGEMENT, JAMES BURLINGAME AND AMERICAN DEVELOPMENT COMPANY, DEFENDANTS-RESPONDENTS.



The opinion of the court was delivered by: Handler, J.

Argued September 14, 1998

On certification to the Superior Court, Appellate Division.

The opinion of the Court was delivered by

This matter arises from an accidental injury sustained by a worker on a construction site. The injured worker was employed as a driver for an excavating subcontractor that had agreed to deliver crushed stone to a general paving contractor. As she was attempting to unload the crushed stone at the construction site, the worker was injured as a result of a defective mechanical component of the dump truck.

The issue in this appeal is whether a general or prime contractor has a duty to assure the safety of an employee of a subcontractor; and, more specifically, whether that duty encompasses the safety of equipment supplied by the subcontractor and used by its employee at the contractor's work site. In addressing that issue, we must also consider the relevance of statutory and regulatory safety standards governing the responsibilities of employers over workplace safety in determining the existence and the scope of such a duty of care.

I.

In August 1990, American Development Company ("American Development") entered into a construction contract with Shop-Rite of Pennington, Inc. ("Shop-Rite") to renovate and convert the interior of a warehouse building at the Bradlees Shopping Center on Route 206 in Bordentown, New Jersey into a Shop-Rite Supermarket. Vornado, Inc. owned the property and undertook to renovate the exterior of the premises. American Development hired American Management Company ("American Management") and American Refrigeration Company ("American Refrigeration"), two closely related companies, to manage and oversee the interior renovations. American Refrigeration used its employee, James Burlingame, as project manager.

During the renovations, Shop-Rite requested that a special exterior ramp be constructed for loading purposes. Shop-Rite contacted Burlingame to help arrange for the exterior paving work. Burlingame, on behalf of Shop-Rite, contracted with Pat Pavers, Inc. ("Pat Pavers"), an experienced paving and grading contractor. Burlingame informed Shop-Rite that he would oversee Pat Pavers's work, but only as a professional courtesy. He wanted to ensure that Pat Pavers did not damage already completed construction and that the ramp was properly finished.

Pat Pavers relied on its employee, Fred Bernhard, as grading foreman for the paving crews. David Radlinski, another Pat Pavers employee, was placed in charge of mechanical maintenance. Pat Pavers subcontracted with other entities to provide vehicles and drivers to transport paving materials. In particular, Pat Pavers subcontracted with Fred Bernhard Excavating Co. ("Bernhard Excavating"), a company owned by Pat Pavers employee, Fred Bernhard. Plaintiff Terry Alloway was an employee of Bernhard Excavating and drove one of its trucks. Bernhard Excavating provided both truck and driver to Pat Pavers on a per-diem basis.

The contractual relationship between Pat Pavers and Bernhard Excavating was not committed to writing. Bernhard Excavating paid its own drivers, purchased its own insurance, and maintained its own vehicles. Plaintiff received her wages and workers' compensation insurance from Bernhard Excavating and received no compensation or benefits from Pat Pavers.

The dump truck driven by plaintiff has a power take-off system that activates the lifting mechanism to raise the dumpster on the truck. The system is engaged by a button within the passenger compartment of the truck. Plaintiff experienced problems with the power take-off system and the day before the accident discovered that a hydraulic pump, an integral part of the system, had fallen off a connecting bracket underneath the truck and was dragging on the roadway. Plaintiff brought this problem to the attention of her supervisor and Pat Pavers employee, Fred Bernhard.

Bernhard called Pat Pavers and discussed the matter with a superintendent, Keith Harvilla. Bernhard asked Pat Pavers to repair the pump on the truck because there was a load of asphalt already in its dumpster. Plaintiff subsequently drove the truck to Pat Pavers's garage, where Harvilla and another Pat Pavers employee, David Rablinsky, welded the pump back into place underneath the truck.

Plaintiff then drove the truck to another construction site. Harvilla followed. When plaintiff attempted to unload asphalt at the site, the bed of the truck would not raise. Harvilla used a 36" piece of steel manually to move a lever under the truck and engage the power take-off system. The truck bed then rose.

Harvilla informed plaintiff that the cable line required repair because it was stretched and did not allow the dump bed to rise. Harvilla also called Fred Bernhard at home that day, informing him that the cable must be fixed. Later in the evening, Fred Bernhard called plaintiff at home and informed her that the cable would be repaired or replaced by the next day. The cable was never fixed.

The following day plaintiff was sent to the Shop-Rite construction site to dump stone. Plaintiff had loaded and operated the dump truck once without incident that morning at another site. At the Shop-Rite site, however, the power take-off would not engage. Plaintiff got out of the truck. She attempted manually to engage the power take-off lever on the bottom of the truck. She shifted the lever as Harvilla had done the previous day, except instead of using a metal bar, she used her arm to reach under the truck. The power take-off drive shaft engaged and started to spin. Plaintiff's hair and right hand became caught, and she was pulled under the truck. Plaintiff sustained serious injuries as a result.

The Department of Labor, Occupational Safety and Health Administration ("OSHA") conducted an investigation following the accident. As a result, Bernhard Excavating was cited for noncompliance with OSHA regulation 29 C.F.R. § 1926.21(b)(2), for failing adequately to train its employees engaged in operating a dump truck with the hazards associated with the power take-off device.

Plaintiff filed this action in the Superior Court, Law Division, Mercer County. Plaintiff named as defendants, among other parties, American Development, American Management, American Refrigeration, James Burlingame, Pat Pavers, and Bernhard Excavating.

Plaintiff alleged that these defendants owed her a duty to provide a reasonably safe workplace. Plaintiff contended that they breached this duty by failing to make inspections of hazardous equipment, namely, the dump truck, and failing to instruct her on the proper operation of such equipment. Defendants conceded that they owed plaintiff a duty to provide a reasonably safe workplace but denied that they breached this duty.

The trial court granted motions for summary judgment brought by all defendants. Plaintiff thereafter filed an appeal to the Appellate Division, which affirmed the decision of the Law Division. Following the denial of a motion for reconsideration, plaintiff then filed a ...


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