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Dare v. Pansini Custom Design Associates

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 13, 2007

DOUGLAS DARE AND DENISE DARE, HIS WIFE, PLAINTIFFS-APPELLANTS,
v.
PANSINI CUSTOM DESIGN ASSOCIATES, LLC, DEFENDANT-RESPONDENT, AND PRO BUILDERS & SONS, INC., DEFENDANT.
PANSINI CUSTOM DESIGN ASSOCIATES, LLC, THIRD-PARTY PLAINTIFF,
v.
PRO BUILDERS & SONS, INC., THIRD-PARTY DEFENDANT.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, L-2785-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 8, 2007

Before Judges Axelrad and R. B. Coleman.

Plaintiff, Douglas Dare, an employee of a subcontractor, Pro Builders & Sons, Inc. (Pro Builders), appeals from an April 13, 2006, order granting summary judgment in favor of the general contractor, Pansini Custom Design Associates, LLC (Pansini), and dismissing plaintiff's action seeking damages for personal injuries he sustained as a result of a fall from a makeshift scaffold on the job site. We affirm.

On May 24, 2002, Pansini contracted with Dare's employer to do the framing work for the construction of a residential house in Ocean City. Plaintiff was an experienced framer who had been in the construction industry since 1975. He had also previously been self-employed in framing residential houses. At the time of the accident, October 4, 2002, plaintiff was using makeshift scaffolding to frame arches on the house. The scaffolding consisted of long plank boards nailed onto frames. One end of the plank came loose and swung away, causing plaintiff to fall from the second floor to the floor below, sustaining injuries.

Plaintiff testified the makeshift scaffolding was there when he came to work that day, but he did not know who put it up. Plaintiff's employer, Pro Builders, had provided metal scaffolding, fiberglass ladders, aluminum ladders and wood ladders reaching up to thirty feet high, however, these were not being used at the time of plaintiff's fall. Plaintiff's supervisor, David Michael Diefenback, testified that plaintiff and his co-worker erected the makeshift plank scaffolding on the morning of the accident. Pansini did not provide any equipment for the framing work, was not involved in the construction of the scaffold, and was not at the site the day of the accident.

Plaintiff filed a complaint alleging personal injuries against Pansini on September 9, 2004. At the close of discovery, Pansini moved for summary judgment, which was granted on April 13, 2006, after oral argument. On appeal, plaintiff contends that the trial court improperly granted summary judgment because defendant Pansini violated Occupational Safety and Health Administration (OSHA) regulations and is therefore liable for the injuries he sustained. After carefully considering plaintiff's arguments, in light of the facts and the applicable law, we affirm.

Summary judgment must be granted if "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 528-29 (1995). That is to say, accepting as true all evidence supporting the party opposing the motion and according to him or her the benefit of all favorable inferences, if reasonable minds could differ, the motion must be denied. Dolson v. Anastasia, 55 N.J. 2, 5 (1969). Upon appellate review, the court reviews the grant or denial of summary judgment applying the same standard as the trial court and, in effect, conducts a de novo review of the facts on the record. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div. 1998).

A general contractor who hires an independent contractor is obligated to provide a reasonably safe workplace, but is not required to eliminate all potential hazards of the job performed by the contractor. O'Keefe v. Sprout-Bauer, Inc., 970 F.2d 1244, 1251 (3rd Cir. 1992). In Wolczak v. Nat'l Elec. Prods. Corp., 66 N.J. Super. 64, 75 (App. Div. 1961), this court stated:

The duty to provide a reasonably safe place in which to work is relative to the nature of the invited endeavor and does not entail the elimination of potential operational hazards which are obvious and visible to the invitee upon ordinary observation. This is especially so when the invitee is an experienced laborer hired either to correct the very danger present or to perform his tasks amidst the visible hazards. The landowner may assume that the worker, or his superiors, are possessed of sufficient skill to recognize the degree of danger involved and to adjust their methods of work accordingly. Thus the unimpaired line of holdings to the effect that the duty to provide a reasonably safe working place for employees of an independent contractor does not relate to known hazards which are part of or incidental to the very work the contractor was hired to perform.

Here, Pansini had no involvement in the creation of the unsafe condition on the job site the day of the incident, it had no notice of the condition and had no reason to believe the condition would exist at the time of the incident. Plaintiff's employer had provided ladders and scaffolding, which were on the site that day and which had been used on a daily basis prior thereto.

Plaintiff contends that Pansini, as the general contractor, has a non-delegable duty to make the workplace reasonably safe for all workers on the project and violated OSHA regulations by failing to do so. Plaintiff argues that Pansini failed to conduct safety meetings or to train employees on the site, and that allowing employees to work six feet or more above a lower level, on a surface with an unprotected side, as plaintiff did, violates Section 1926.501(a) of OSHA.

Even assuming there was a violation of Section 1926.501(a) of OSHA for failure to have in place adequate fall protection, a violation of an OSHA regulation is not, ipso facto, a basis for a tort remedy. Alloway v. Bradlees, Inc., 157 N.J. 221, 236 (1999). Such a violation may be evidence of negligence, but it is not, without more, a basis for an independent or direct tort remedy. It was not necessarily the duty of the general contractor to supply OSHA-compliant fall protection, especially where Pro Builders provided all equipment on the job site. See Raimo v. Fischer, 372 N.J. Super. 448, 458 (App. Div. 2004) (noting that in the absence of a contractual obligation to supervise all construction work, a general contractor cannot be held liable for a transient unsafe condition caused by a subcontractor when the general contractor is not on the site). Moreover, OSHA regulations do not necessarily apply to the subject project since it was not a federal or federally assisted project.

In this case, plaintiff, an experienced carpenter, chose to use the makeshift scaffolding with a plain awareness of the risk involved and notwithstanding the availability of conventional, more secure scaffolding. Defendant had no notice of the dangerous condition and, while it may be, nevertheless, chargeable with a violation of OSHA, there is no basis for a rational finding by a jury that it was negligent under the circumstances of the case, viewed in light most favorable to plaintiff.

Affirmed.

20070813

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