On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-2180-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges A. A. Rodríguez and C. L. Miniman.
Plaintiff Marcos Machado appeals from the November 2, 2007 order granting summary judgment to defendant Valley Pools & Spas, Inc. (Valley Pools). We reverse and remand.
Machado is an employee of Edmilson Untura t/a New Champion Construction (New Champion), a subcontractor hired by general contractor Valley Pools to install concrete around a pool in Gold's Gym and Aerobic Fitness Complex of Princeton (Gold's). There was no written contract between Valley Pools and New Champion, but their agreement was memorialized on a "work sheet," which has since been discarded. The work to be done at the gym included stamping decorative designs into the concrete.
On September 23, 2003, Anthony Bencivengo, owner of Valley Pools, spoke briefly with Edmilson Untura about the work he wanted done. That same day, New Champion rented stamps from Concrete Impressions, which also provided them with a cleaner called "Zep Degreaser." The Product's warning label indicated that it was an eye irritant. Bencivengo supervised the work done at the site later that day.
The following day, Bencivengo visited the site for about an hour. At the end of the day, Machado completed the stamping and proceeded to scrub the stamps clean using a hand-held brush. His co-worker Joao Batista gave him the Zep Degreaser. When Machado poured it on the stamp, some of it splashed in his eyes. This caused a chemical burn, resulting in severe pain and swelling that prevented Machado from opening his eyes. Machado immediately washed his eyes with water.
Eight days later, Machado sought treatment for the persistent pain at the St. James Hospital emergency room. One of the ER physicians diagnosed Machado with a chemical burn in his eyes. Machado was then referred to an ophthalmologist, Joseph Cooper, M.D., who recommended corneal transplantation. Machado has since discontinued care.
Machado sued Gold's, Randy Vey, the owner of Gold's; New Champion; and Valley Pools. Machado filed an amended complaint to join Concrete Impressions, the seller of the chemical that caused his injury. He alleges that his vision has been greatly diminished in his left eye.
Valley Pools moved for summary judgment. In opposition to this motion, Machado submitted an expert report prepared by Harold M. Tepper, an engineer. Tepper opined that Valley Pools "failed to supervise work associated with the construction of the stamped pool deck," violating Occupational Safety and Health Administration (OSHA) regulations. The report found that Valley Pools neglected to conduct safety training, provide eye protection, inspect the workplace and ensure that the subcontractor complied with OSHA.
The judge granted the motion, concluding that, as a matter of law, Valley Pools did not owe a duty of care to Machado. The judge found that: (1) Valley Pools' responsibilities at the construction site did not involve direct supervision or control of Machado's work; and (2) Machado's injuries were not foreseeable by Valley Pools. New Champion, Gold's and Concrete Impressions also moved for summary judgment. The judge granted these motions and ordered arbitration of the claims against the remaining defendants.
Machado appeals the summary judgment granted to Valley Pools, contending that the judge erred in determining that Valley Pools did not owe him a duty despite the fact that Valley Pools directly controlled the means and methods of his work, were aware that he should have worn goggles, and had the opportunity to stop the dangerous worksite conditions. Moreover, Machado argues that: (a) his injury was reasonably foreseeable; (b) the risk of injury was severe; (c) the relationship of the parties indicate that Valley Pools exercised control over the worksite sufficient to establish that it owed a duty to Machado; (d) Valley Pools had the opportunity and ability to take corrective measures to avoid injuries; and (e) Valley Pools' numerous OSHA violations are evidence of the existence of a duty.
We conclude that summary judgment in favor of Valley Pools was not warranted. As a general rule, a contractor that hires an independent contractor is not vicariously liable for hazards created by performance of the contracted work. Mavrikidis v. Petullo, 153 N.J. 117, 131 (1998). There are three exceptions to this rule: "(a) where the [principal] retains control of the manner and means of the doing of the work which is the subject of the contract; (b) where he engages an incompetent contractor; or (c) where . . . the activity contracted for constitutes a nuisance per se." Majestic Realty Assocs., Inc. v. Toti Contracting Co., 30 N.J. 425, 431 (1959). To prove the first exception, a plaintiff must demonstrate that the general contractor and employee are in a common law master-servant relationship. Lowe v. Zarghami, 158 N.J. 606, 615-16 (1999). This is determined by examining the following factors: "(1) the degree ...