Before Judges Stern, Braithwaite and Wecker.
The opinion of the court was delivered by: Wecker, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from the Superior Court of New Jersey, Law Division, Essex County.
Plaintiff, Michael J. Costantino, *fn1 was injured while working as an employee of BelleMead Construction Corporation, the general contractor on a construction project. Defendants are Louis Ventriglia individually, Louis Ventriglia & Sons, arguably a subcontractor or supplier to BelleMead, (collectively "Ventriglia") and Ventriglia's employee, Anthony Sansone . Sansone was operating Ventriglia's equipment, digging a hole where plaintiff was working, when the hole collapsed on plaintiff. The jury returned a verdict of no negligence. This appeal involves the proper use of OSHA standards of care as evidence in a negligence action. Because we conclude that the jury received incorrect instructions that may have contributed to an unjust result, we reverse and remand for a new trial. See R. 2:10-2.
As in Kane v. Hartz Mountain Industries, 278 N.J. Super. 129, 142 (App. Div. 1994), aff'd o.b., 143 N.J. 141 (1996), "the Judge's charge appears to have been a hybrid between a general negligence standard and one requiring a finding of a regulatory violation." In charging the jury, the court correctly defined negligence as the failure to exercise that degree of care for the safety of others which a person of ordinary prudence would exercise under similar circumstances. The court also charged the jury that evidence had been produced regarding construction standards in the industry, and that such evidence could be considered in determining whether defendants had a duty to protect the trench. Those charges were appropriate. The court also told the jury that plaintiffs claimed that defendants breached a duty of reasonable care and violated their obligations under OSHA. However, the order and juxtaposition of those charges were confusing and deprived plaintiff of a fair trial.
The relevant portion of the jury charge follows:
In this case, in support of the charge of negligence made by the plaintiffs, the plaintiff asserts that the defendants violated a provision of the Occupational Safety and Health Act, OSHA. Specifically he charges that Ventriglia was a subcontractor, as that term is defined in OSHA, and therefore had the duty to protect the trench if it was over five feet, as provided in the OSHA regulations.
Now, OSHA has set up a standard of conduct for the safety and other various endeavors -- for various endeavors, including the construction industry. However, the determination of whether the defendant is a subcontractor subject to the OSHA regulations depends -- is a question of both law and of fact. The fact to be determined is the nature of the relationship between Ventriglia and the general contractor Bellemeade. The statute defines a subcontractor, who is one who has contracted to do a part of the work. In this case, the defendants assert that the defendant was not a subcontractor, that he merely was a lessor of the back hoe in question, with its operator. That the operator was -- the back hoe and the operator were released about an hour a day to do any work directed by Bellemeade site's superintendent, Mr. McCracken.
If you find that Ventriglia was merely a lessor of such equipment with an operator on such basis, then you will find that he was not a subcontractor as that term is defined in the act. In effect, I am charging you that if you so find such a person is not, as a matter of law, a subcontractor under OSHA, and therefore is not required to comply with OSHA. If, however, you find that defendant was a subcontractor; namely, someone who was obligated by contract to do a part of the work, as that term is used in OSHA, then you may consider whether a defendant violated the OSHA requirements which were testified to by the various witnesses. If you would find that he violated such OSHA requirements, then I would charge you in respect to the effect of such a finding.
Whereas here the charge of negligence made is asserted by reason of the defendants having violated a provision of OSHA, you may consider that as some evidence of negligence. The statute in question has set up a standard of conduct for the safety in the construction industry. If you find that the defendant has violated that standard of conduct, such violation is evidence to be considered by you in determining whether negligence, as I have defined that term to you, has been established. You may find that such violation constituted negligence on the part of the defendants, or you may find that it did not constitute such negligence. Your finding on this issue maybe [sic] based on such violation alone, but in the event there is other or additional evidence bearing on that issue, you will consider such violation together with all such additional evidence in arriving at your ultimate decision as to defendant's negligence. [Emphasis added].
We are convinced that these instructions, viewed as a whole, may have prevented the jury from considering the OSHA regulation as evidence of the standard of care applicable to defendants under general negligence principles, irrespective of whether Ventriglia was a "subcontractor" and subject to OSHA regulation and enforcement. The charge thus had the potential for leading the jury to an unjust result. See Feldman v. Lederle Labs., 132 N.J. 339, 345-46 (1993).
We recognize that plaintiff contributed substantially to the confusion in the way the case was presented to the jury. By seeking to prove that Ventriglia was a "subcontractor" subject to OSHA regulations, plaintiff apparently sought the advantage of instructing the jury that the OSHA regulation established the required standard of care; that defendants did not follow the standard; and that the OSHA violation is evidence of negligence. As we shall explain, under general negligence principles, the OSHA regulatory standard is merely evidence of the applicable standard of care. Having chosen to offer the jury the opportunity to consider an alleged OSHA violation as evidence of negligence, plaintiff took on the burden of proving that Ventriglia was actually subject to OSHA regulations, and defendant focused on disproving OSHA's application. Nevertheless, the Judge erred in asking the jury to answer the question whether Ventriglia was a subcontractor subject to OSHA regulations -- a legal question for the court -- and in relying on the attorneys' descriptions of those regulations, which the parties failed to supply.
The parties' undue emphasis on the question whether Ventriglia was a "sub-contractor" under OSHA apparently contributed to the Judge's decision to charge the jury that if Ventriglia was not a sub-contractor, it was not bound by the OSHA standard. Even if that statement was literally accurate, in the sense that OSHA could not impose administrative sanctions upon Ventriglia, the instruction incorrectly implied that if OSHA had no ...