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Machado v. Gold's Gym & Aerobic Fitness Complex of Princeton


June 19, 2008


On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-2180-05.

Per curiam.


Submitted June 2, 2008

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 of control exercised by the employer over the means of completing the work; (2) the source of the worker's compensation; (3) the source of the worker's equipment and resources; and (4) the employer's termination rights." Id. at 616.

A general contractor may also be directly liable if he or she retains a measure of control and exercises it in a negligent manner. Restatement (Second) of Torts § 414 (1965). According to the Restatement of Torts:

One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care. Ibid.

Comment (b) explains further:

[W]hen a principal contractor entrusts a part of the work to subcontractors, but himself or through a foreman superintends the entire job[,] . . . the principal contractor is subject to liability if he fails to prevent the subcontractors from doing even the details of the work in a way unreasonably dangerous to others, if he knows or by the exercise of reasonable care should know that the subcontractors' work is being so done, and has the opportunity to prevent it by exercising the power of control which he has retained in himself. [Id. at § 414 cmt. b.]

Thus, the retention of supervisory control gives rise to a duty that it will be exercised properly. Wolczak v. Nat'l Elec. Prod. Corp., 66 N.J. Super. 64, 70-71 (App. Div. 1961).

However, a general contractor must assume more control than simply ensuring that the results comply with what was requested. Marion v. Pub. Serv. Elec. & Gas Co., 72 N.J. Super. 146, 153 (App. Div. 1962). In Bergguist v. Penterman, 46 N.J. Super. 74, 86 (App. Div.), certif. denied, 25 N.J. 55 (1957), for example, the court found that a general contractor should be liable for a subcontractor's employees' injuries when it scheduled floor finishing and plumbing on the same day, resulting in a fire. Ibid. Even though the general contractor did not control the manner of the employees' performance, its liability arose out of a negligent combination in failing to properly schedule and coordinate both activities or delegate this responsibility to someone else. Id. at 87.

Here, the facts viewed in the light most favorable to Machado, indicates that Bencivengo was present on the jobsite on the first day and the morning of the second, overseeing the work as it was being completed and giving instructions to New Champion's employees. We conclude that this allegation, if credited by the jury, would defeat summary judgment.

We also conclude that Machado's injury was foreseeable. The Supreme Court has outlined the factors necessary to hold a general contractor liable under common-law negligence principles:

A major consideration in the determination of the existence of a duty of reasonable care under "general negligence principles" is the foreseeability of the risk of injury. Carey v. Lovett, 132 N.J. 44, 57 (1993); Weinberg v. Dinger, 106 N.J. 469, 485 (1987). In addition, the determination of such a duty "involves identifying, weighing, and balancing several factors -- the relationship of the parties, the nature of the attendant risk, the opportunity and ability to exercise care, and the public interest in the proposed solution." Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439 (1993). [Alloway v. Bradlees, Inc., 157 N.J. 221, 230 (1999).]

In Alloway, the Court held that a general contractor could be liable for injuries sustained by an employee of a subcontractor when the general contractor neglected to secure the dump truck that injured an employee. Id. at 240-41. In that case, the general contractor had actual knowledge that the truck was defective, there was a close and substantial relationship between the general contractor and subcontractor, and the general contractor had an opportunity to repair the truck. Id. at 232-33.

The Court applied the same principle in Carvalho v. Toll Bros. & Developers, finding that an engineer could be liable for a construction worker's death after the trench in which he was working collapsed. 143 N.J. 565, 576-77 (1996). The court found that the collapse was foreseeable because the engineer knew of the condition of the trench and "was aware that the trench collapsed in other areas and that it was unstable in other areas including a point 200 yards from the fatal collapse one week before the accident." Id. at 576.

Each of these cases focuses on the foreseeability of the accident. "When one knows or has reason to foresee that the person, property, or rights of another are so situated that they may be damaged through that person's conduct, it becomes the person's duty to govern his or her actions so as not to injure the person thus exposed." J.D. Lee and Barry A. Lindahl, Modern Tort Law § 3:4 at 3-16 (Rev Ed 2000).

Machado's deposition testimony indicates that Bencivengo supplied the cleaner.

Q: Who supplied this product?

A: I think it was Tony [Bencivengo]. I'm not certain.

Q: What makes you think that Tony supplied the product?

A: Because Tony was the one that would pass the job to them and he would guide us on everything that had to be done, including the cleaning up too.

Machado explained how he knew that Bencivengo obtained the cleaner:

Q: You indicated earlier . . . that you told your attorney the name of the product and where you believe the product had been purchased. Is that correct?

A: Yes, correct. Yes Joao was the one that passed that information.

Q: And do you know how [Joao] found out that information?

A: I believe that -- it seems to me that with the instructions of Tony, he was the one that went to buy this product.

Q: And who told you that?

A: Joao.

By itself, Machado's testimony qualifies as hearsay and thus it is insufficient to defeat Valley Pool's motion for summary judgment. Robbins v. Jersey City, 23 N.J. 229, 240 (1957); see also El-Sioufi v. St. Peter's Univ. Hosp., 382 N.J. Super. 145, 164 (App. Div. 2005) ("[S]ummary judgment motions must be supported by relevant and admissible evidence."). However, even if Bencivengo had no personal knowledge that the stamps would be cleaned, Machado argues that Valley Pools should have been imputed with constructive knowledge because a reasonable person should have been aware of the risk. Machado points out that Bencivengo was aware of the risks involved in handling dangerous chemicals and had seen workers at the site wearing safety glasses on the day before the accident. In support of his argument, Machado contends that workplace safety regulations promulgated by OSHA should establish the standard of care.

In Alloway, the Court held that "OSHA regulations are pertinent in determining the nature and extent of any duty of care" as long as the rules being applied to the defendant and the plaintiff are within the class of people the rules were designed to protect. Alloway, supra, 157 N.J. at 236. At the same time, the Court recognized that a "violation of OSHA regulations without more does not constitute the basis for an independent or direct tort remedy" and does not, in itself, constitute negligence per se. Ibid.; see also Slack v. Whalen, 327 N.J. Super. 186, 195-96 (App. Div.) ("[T]he mere fact that OSHA regulations may have been violated at the worksite is not sufficient to create a legal duty on defendants to have avoided the risk of injury to plaintiff . . . ."), certif. denied, 163 N.J. 398 (2000). Moreover, the court held that when "the risk of injury to plaintiff was not objectively foreseeable by defendants, and . . . no relationship implicating safety concerns existed between plaintiff and defendants," a general contractor cannot be held liable for injuries sustained by a subcontractor's employees. Id. at 196. The violations, the court concluded, could not compensate for the lack of additional evidence and defeat a summary judgment motion. Id. at 195-96.

Here, the OSHA regulations cited by Machado apply to the parties. According to 29 C.F.R. § 1926.28(a) (2008), "The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions . . . ." The term "employer" in the regulations covers general contractors as well as subcontractors. Id. at § 1926.16.

Here, the OSHA regulations alone do not support a liability finding against New Champion. However, unlike in Slack, there was evidence of conduct on the part of Valley Pools and its agent, Bencivengo, sufficient to establish control over Machado. Therefore, the OSHA violations, in addition to Bencivengo's conduct, is sufficient for a reasonable juror to determine that Valley Pools established a "relationship implicating safety concerns." Slack, supra, 327 N.J. Super. at 196.

Reversed and remanded.


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