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Analuisa v. Weir

August 28, 2008

LUIS ANALUISA AND NORMA ANALUISA, HIS WIFE, PLAINTIFFS-APPELLANTS,
v.
DAVID GRATTON WEIR, DAVID G. WEIR, JR., SEA STRUCTURE, LLC., BISA KLEMCO, INC., AND KLEMCO, INC., DEFENDANTS, AND J. MICHAEL RICHARDS, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-2066-02.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 1, 2008

Before Judges Skillman, Winkelstein and LeWinn.

Plaintiffs appeal from a jury verdict finding defendant J. Michael Richards not liable for injuries sustained by plaintiff Luis Analuisa in an accident on a construction job site for which Richards was the general contractor. All other defendants were dismissed by summary judgment; plaintiffs have not appealed those orders. The following background is pertinent to our discussion.

Plaintiff was an employee of Klemco, Inc. (Klemco), an asbestos removal company. On October 10, 2000, plaintiff was injured when he fell from a ladder while removing asbestos siding from a house owned by Sea Structure, LLC. Sea Structure had contracted with Richards to demolish the house and build a new one. Richards subcontracted with Klemco to remove the siding.

Plaintiff had no recollection of how he fell; no witnesses observed the incident. Plaintiff testified that he was standing about four or five rungs from the top of a twenty-five-foot ladder, prying siding off the house with a pitchfork-like tool. His normal practice, when removing siding while standing on a ladder, was to hold the tool with one hand and let the siding fall to the ground.

Carl Brown, an EMT who responded to the scene, testified that plaintiff had landed in the grass. Brown estimated the height of the ladder to be fifteen feet. Ocean City police officer David Rowland, who also responded to the scene, estimated the ladder height to be sixteen feet.

Plaintiff was conscious after the fall, but neither Brown nor Rowland could effectively communicate with him because he spoke Spanish and little English. According to Brown, plaintiff knew his name and responded to it but did not seem to know the time or where he was. At the hospital plaintiff was diagnosed with fractures of both wrists and his right foot and a hip injury.

As of the time of trial plaintiff testified that he was in constant pain, could not use his left hand, and suffered from depression. He stated he took fourteen different medications each day, which made him tired, dizzy and nauseous. His injury left him unable to return to the work force.

Plaintiff's liability theory against Richards was that, as the general contractor, defendant had breached his non-delegable duty to provide a safe work environment. In support of that theory, plaintiff presented Vincent Gallagher, an expert on construction safety and fall hazards.

Gallagher testified that according to industry standards and regulations, it was unsafe to remove asbestos siding from a house while standing on a ladder. He stated, "It's much safer to use a scaffold or a scissors lift. . . ." Since Klemco failed to provide plaintiff with either of those structures, Gallagher concluded that plaintiff had been working in an unsafe environment and Richards should have taken steps to guard against that lack of safety.

Richards acknowledged that he did not address with Klemco the issue of compliance with safety standards and regulations; nor did he discuss safety issues with Klemco. Richards claimed he did not breach any duty of care because he had no personal familiarity with asbestos removal; therefore, he claimed that he appropriately relied upon Klemco to address safety issues.

Defendant's liability expert, Henry Naughton, challenged Gallagher's opinion that removing asbestos siding while standing on a ladder was unsafe. Naughton opined that it was not inconsistent with industry standards and regulations to remove asbestos while standing on a ladder.

The jury found that Richards had breached his non-delegable duty to provide a safe work place to plaintiff. However, the jury returned a verdict in defendant's favor by responding in the negative to the following interrogatory: "Did the plaintiff prove by a preponderance of the credible evidence that the negligence of the defendant was a proximate cause of any injury sustained by plaintiff?"

On appeal, plaintiff raises the following issues for ...


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