May 14, 2009
FELIPE ZAMORA, PLAINTIFF-APPELLANT,
ELVIS PARIS-CURRAIS AND O. LAR CONSTRUCTION CORP., DEFENDANTS, AND ALV GENERAL CONTRACTORS, DNA CONSTRUCTION CORP., DOMINGUEZ HOLDING COMPANY, LLC AND LEOPOLDO M. DOMINGUEZ, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-4512-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 1, 2009
Before Judges Baxter and King.
This is a personal injury action that arises out of an incident which occurred on April 29, 2005 at a construction site located at 44 Chapel Street in Newark. Plaintiff commenced this action to recover damages for personal injuries he sustained while working in a trench which collapsed at that location. At the time of the incident, plaintiff was employed by DNA Construction Corp. (DNA). Dominguez Holding Company, LLC (Dominguez Holding) owned the subject property.
Leopoldo M. Dominguez owned DNA, a company specializing in building restoration and waterproofing. Dominguez, through Dominguez Holding, had purchased the 44 Chapel Street property as a warehouse for DNA. As part of the construction project, which involved paving the property, Dominguez hired ALV General Contractors (ALV) to perform the excavation necessary for the installation of piping. Jose Rodriguez, the principal for ALV and an alleged expert in digging trenches, personally dug one of the trenches at the premises.
Leonardo Skrzypek, a DNA employee, had been injured on April 21, 2005, when Elvis Paris-Currais, an employee of ALV, accidentally dumped dirt on him with a backhoe while he was standing in one of the trenches. Thereafter, at Dominguez's direction, plaintiff and other DNA employees installed plywood and shoring in the trench so the walls would not cave in. Adolfo Gonzalez, a foreman for DNA, supervised the installation of the plywood and shoring; Dominguez instructed Gonzalez to do whatever was necessary to ensure that another accident did not occur in the trenches.
Pipes for sewer and electrical lines were later installed in the trenches. After the pipes were installed, plaintiff and another DNA employee removed the wood shoring so the trenches could be backfilled. They were instructed to stand outside the trench, one on each side, grab a portion of the corresponding vertical planks that extended above the walls of the trench, move the vertical planks side-to-side to free up the pressure of the horizontal shoring, and remove the planking and shoring.
According to Gonzalez, before the planking and shoring is removed, that portion of the trench is backfilled with several feet of dirt, at which point the laborers maneuver the vertical planks side-to-side and lift the shoring on top of the backfilled dirt. That portion of the trench is then backfilled with several more feet of dirt, and the process is repeated until approximately half of the trench is backfilled; the laborers then remove the planking and shoring.
Gonzalez was not at the site when plaintiff's accident occurred. Thus, DNA did not have anyone supervising the removal of the planking and shoring or the backfill of the remaining section of the trench on April 29, 2005. At the time of the accident, plaintiff was standing in a ten-foot-deep trench, removing the shoring and handing it up to another DNA employee who was standing outside the trench. This was a mistake. While carrying out this task, the shoring collapsed, pinning plaintiff against the side of the trench. Plaintiff was covered up to his neck in dirt and debris and immediately lost consciousness. He was rushed to University Hospital in Newark, where he remained for five days. As a result of the accident, plaintiff allegedly sustained severe injuries, including a fractured neck and ribs.
Plaintiff filed a complaint against his employer on September 18, 2006. During discovery, plaintiff filed a notice of motion to amend his complaint in order to add an intentional tort claim against DNA. That motion was denied on November 29, 2007. Following discovery, defendants DNA, Dominguez Holding and Dominguez moved for summary judgment based on the Workers' Compensation bar, which was granted on April 25, 2008. On May 30, 2008, summary judgment was granted in favor of ALV on the basis that the accident in question was the result of the negligent conduct of plaintiff's employer and the subsequent intervening actions of plaintiff. Plaintiff thereafter filed a motion for reconsideration as to the trial court's determination regarding ALV, which was denied on July 18, 2008.
The first question we consider is whether the Workers' Compensation Act, N.J.S.A. 34:15-1 to -142, precludes an employee injured during the course of employment from asserting a cause of action against his employer in addition to the workers' compensation benefits already provided by statute. The statute reads, in relevant part:
If an injury or death is compensable under this article, a person shall not be liable to anyone at common law or otherwise on account of such injury or death for any act or omission occurring while such person was in the same employ as the person injured or killed, except for intentional wrong.
Proof of intentional conduct requires an injured person to demonstrate either that there was a deliberate intent to injure, Mabee v. Borden, Inc., 316 N.J. Super. 218, 227 (App. Div. 1998), or that the employer knew an injury to the employee was substantially certain to result, Laidlow v. Hariton Machinery Co., Inc., 170 N.J. 602, 621 (2002). In order to succeed, an employee must establish that the evidence could lead a jury to conclude that the employer acted with knowledge that it was substantially certain that he would be harmed and that the alleged conduct is outside the purview of conditions the Legislature intended to immunize under the Workers' Compensation bar. Charles Beseler Co. v. O'Gorman & Young, Inc., 380 N.J. Super. 193, 198 (App. Div. 2005), aff'd, 188 N.J. 542 (2006).
Plaintiff's initial complaint did not contain any claim based on intentional conduct. Plaintiff later filed a motion seeking to amend his complaint to include claims against DNA, Dominguez and Paris-Currais for the intentional and deliberate failure to provide for his safety. That motion was denied.
A motion for leave to amend should be liberally granted and without consideration of the ultimate merits of the amendment. Interchange State Bank v. Rinaldi, 303 N.J. Super. 239, 256 (App. Div. 1997). However, the court must examine the requested amendment to determine whether it is futile, i.e., whether the amended claim will nonetheless fail and, hence, allowing the amendment would be a useless endeavor. Notte v. Merchs. Mut. Ins. Co., 185 N.J. 490, 501 (2006). Courts are free to refuse leave to amend when the newly-asserted claim is not sustainable as a matter of law, because there is no point in permitting the filing of an amended pleading that could not survive a subsequent motion to dismiss. Interchange State Bank, supra, 303 N.J. Super. at 256-57.
Whether plaintiff's proposed amendment is viable depends on whether he has proffered evidence of harmful conduct on the part of his employer that, when observed in the context in which it took place, Millison v. E. I. du Pont de Nemours & Co., 101 N.J. 161, 178-79 (1985), can be viewed as beyond what the Legislature contemplated as viable under the Workers' Compensation Act bar, Mabee, supra, 316 N.J. Super. at 228.
In his brief, plaintiff argues that, prior to 2002, the "intentional wrong" exception to the Workers' Compensation Act was extremely narrow insofar as one was required to demonstrate that an employer exhibited a deliberate intent to injure the employee in order for a common-law cause of action to survive; thereafter, the Court decided a series of cases, specifically Laidlow, which relaxed the original standard to include circumstances where an employer takes an action that is substantially certain to cause harm. Indeed, intent is not limited to the consequences which are desired. Laidlow, supra, 170 N.J. at 613. If one knows that the consequences are substantially certain to result from their act, the conduct is treated by the law as if it had been the desired outcome of the employer. Ibid.
Plaintiff claims that, in the present matter, a reasonable jury could conclude, based on the totality of the circumstances, that DNA and Dominguez are liable for intentional wrongdoing; these defendants failed to ensure proper compliance with Occupational Safety and Health Administration (OSHA) regulations, failed to hire or consult a competent person to install the shoring system, and failed to install or remove the shoring properly. Despite knowing that these industry standards exist for the purpose of preventing injury to employees, defendants took no steps to ensure plaintiff's safety. Moreover, DNA and Dominguez ignored OSHA regulations despite awareness that Skrzypek had been injured at the same site only a week prior to plaintiff's accident. Thus, a reasonable jury could conclude that plaintiff's employer had knowledge that an injury to plaintiff was substantially certain to occur, yet took no action to correct the problem.
Defendants counter that plaintiff has not come forward with any evidence that DNA or Dominguez acted with a deliberate intent to injure him; rather, the injuries he sustained were a risk plainly associated with the type of work plaintiff was doing at the time of the accident. In addition, accepting plaintiff's own account of the accident as true, it cannot be said that defendants are guilty of an "intentional wrong" under any applicable construction of that term because plaintiff puts forth no evidence that DNA or Dominguez were substantially certain that their actions would result in injury. Thus, viewed in a light most favorable to plaintiff, the facts of this case suggest nothing more than ordinary negligence on the part of his employer.
We agree with defendants. The "intentional wrong" exception to the Workers' Compensation Act has long been interpreted narrowly in order to promote the statute's underlying preference that as many work-related tort claims be processed under that statute as possible.
Although we are certain that the legislature could not have intended that the system of workers' compensation would insulate actors from liability outside the boundaries of the Act for all willful and flagrant misconduct short of deliberate assault and battery, we are equally sure that the statutory scheme contemplates that as many work-related disability claims as possible be processed exclusively within the Act. Moreover, if "intentional wrong" is interpreted too broadly, this single exception would swallow up the entire "exclusivity" provision of the Act, since virtually all employee accidents, injuries, and sicknesses are a result of the employer or a co-employee intentionally acting to do whatever it is that may or may not lead to eventual injury or disease. Thus in setting an appropriate standard by which to measure an "intentional wrong," we are careful to keep an eye fixed on the obvious: the system of workers' compensation confronts head-on the unpleasant, even harsh, reality -- but a reality nevertheless -- that industry knowingly exposes workers to the risks of injury and disease. [Millison, supra, 101 N.J. at 177.]
It follows that courts must take care to examine the record thoroughly for clear evidence that an employer either desired to injure its employee, or was substantially certain its actions would lead to injury or death. But the mere knowledge and appreciation of a risk -- something short of substantial certainty -- does not rise to the level of intent. Crippen v. Cent. Jersey Concrete Pipe Co., 176 N.J. 397, 406 (2003). The defendant who acts under the belief that the conduct is causing an appreciable risk of harm to another may be negligent, or reckless if the risk is great, but it is not an intentional wrong. Millison, supra, 101 N.J. at 177.
In this case, plaintiff has produced no evidence which would lead to the conclusion that his employer either desired a harmful result, or was virtually certain that the shoring was insufficient. The mere knowledge that OSHA regulations were not adhered to does not substantiate the claim that defendants were aware of an oncoming calamity to which they callously turned a blind eye. In all other respects -- the failure to hire or consult a competent person to install the shoring system and the failure to install or remove the shoring properly -- plaintiff has presented a negligence claim that is fittingly disposed of under the Workers' Compensation Act bar. The evidence shows that plaintiff's employer made some safety efforts and that the accident a week before was not similar to the accident in the case before us. We see no "intentional wrong" to defeat the bar of N.J.S.A. 34:15-8.
The second question we consider is whether the motion judge erred in granting summary judgment in favor of Dominguez Holding. "The dual capacity doctrine stands for the proposition that an employer who is normally shielded from tort liability by the exclusive remedy principal in Workers' Compensation may be liable in tort to his own employee if he occupies, in addition in his capacity as an employer a second capacity that confers on him obligations independent of those imposed on him as an employer." DeFigueiredo v. U.S. Metals Refining Co., 235 N.J. Super. 458, 459 (Law Div. 1988), aff'd, 235 N.J. Super. 407 (App. Div. 1989). While other jurisdictions recognize the dual capacity doctrine in various forms, it is well-established in this State that a plaintiff is limited to the relief available under the Workers' Compensation Act so long as the employer and the alleged tortfeasor are one. Taylor v. Pfaudler Sybron Corp., 150 N.J. Super. 48, 51 (App. Div.), certif. denied, 75 N.J. 20 (1977). Dominguez, through Dominguez Holding, purchased the 44 Chapel Street property as a warehouse for DNA. Plaintiff argues that the Workers' Compensation Act does not preclude a tort claim against Dominguez Holding as owner of the site because it is a separate entity from DNA, his employer. He claims the judge erred in granting defendants' motion for summary judgment as to Dominguez Holding.
Defendants disagree and argue that there is no basis for imposing liability on Dominguez Holding in its capacity as owner of the property on which plaintiff's accident took place.
In general, a landowner has a non-delegable duty to use reasonable care to protect invitees against known or reasonably discoverable dangers. Dawson v. Bunker Hill Plaza Assocs., 289 N.J. Super. 309, 317 (App. Div.), certif. denied, 146 N.J. 569 (1996). "However, an owner is not responsible for harm which occurs to an employee as a result of the very work which the employee was hired to perform." Id. at 318.
Under this well recognized exception to the general rule, "[t]he duty to provide a reasonably safe place to work is relative to the nature of the invited endeavor and does not entail the elimination of operational hazards which are obvious and visible to the invitee upon ordinary observation and which are part of or incidental to the very work the contractor was hired to perform." [Ibid. (alteration in original) (quoting Sanna v. Nat'l Sponge Co., 209 N.J. Super. 60, 67 (App. Div. 1986).]
In other words, a property owner -- in this case Dominguez Holding -- has no duty to protect the employee of an independent contractor from the hazards created as a result of the contracted work. Further, the landowner may assume that the worker is possessed of sufficient skill to recognize the degree of danger involved and to adjust his methods accordingly. Wolczak v. Nat'l Elec. Prods. Corp., 66 N.J. Super. 64, 75 (App. Div. 1961).
In this case, it is clear from the outset that plaintiff was injured as a result of the hazards that were created by the work he was there to perform. ALV dug the trench, and DNA installed and removed the plywood and shoring. Plaintiff never would have been on the site in the first place if DNA, his employer, had not procured the contracted assignment. The fact that the general contractor and landowner in this case may be interconnected in terms of ownership has no bearing on its outcome. Bozza v. Burgener, 280 N.J. Super. 583, 587 (App. Div. 1995). In short, while we recognize that Dominguez Holding is a separate and distinct entity from DNA -- despite sharing a common owner -- and cannot invoke the bar of the Workers' Compensation Act, its status as a landowner which hired an independent contractor in this particular case is sufficient to insulate it from the claim of negligence.
Plaintiff counters in his reply brief that, because DNA and Dominguez Holding share the same principal, Leopoldo Dominguez, and because he supervised the construction project, a reasonable jury could conclude that Dominguez Holding was, in effect, a conduit through which Dominguez exercised control of the construction project in a manner more consistent with a general contractor rather than a passive land owner. As such, Dominguez Holding owed plaintiff a non-delegable duty to provide a safe working environment. Indeed, while it is true that a landowner will not escape liability if the landowner retains control over the manner and means by which the work is to be performed, Dawson, supra, 289 N.J. Super. at 318, there is no evidence that Dominguez Holding, the landowner here, had any authority over the project. As a result, plaintiff takes up an impossible position, finding it necessary to oscillate between separating and distinguishing the defendants in this case in order to avoid the Workers' Compensation bar, and blending them together for the sake of establishing a claim of negligence.
Plaintiff cannot have it both ways. Plaintiff has failed to proffer any evidence that he was injured as a result of conditions other than those generated by the work his employer was there to perform. Without such evidence, he cannot establish a basis upon which to pursue a cause of action for negligence against Dominguez Holding.
Finally, we turn to plaintiff's claim against ALV. As we have mentioned, as part of the construction project which involved paving the property, Dominguez hired ALV to perform the excavation needed for the installation of piping. Rodriguez was the principal of ALV, which described in its invoice billing DNA $4,700 for backhoe and truck services. Rodriguez said at his deposition that he was aware that OSHA safety regulations were being violated on this site, but did not take action "because it's not [his] job."
Plaintiff contends that ALV, which was employed to facilitate the trench work at 44 Chapel Street, was responsible, at least in part, for his injuries. ALV was hired to perform the excavation of trenches because Dominguez and DNA did not have the requisite training, background or equipment. Dominguez had hired ALV to perform trench work in the past. We must infer that there was an understanding between DNA and ALV that ALV would be responsible for the trench work. Thus, ALV was in control of the excavation and disregarded the safety of the workers by failing to comply with OSHA regulations. Indeed, plaintiff's expert identified numerous OSHA violations regarding the shoring, including the absence of a competent shoring designer and unsafe installation and removal.
In addition, plaintiff maintains that to suggest that ALV had no duty of care to plaintiff merely because ALV was hired for the exclusive purpose of digging rather than shoring would frustrate the social policy of protecting workers from unsafe working conditions. All the same, there was sufficient evidence to suggest that ALV was engaged to assist in the installation and removal of the shoring. Further, even assuming that ALV did not violate a non-delegable duty to plaintiff by failing to comply with OSHA regulations, ALV is liable to plaintiff under general negligence principles because Rodriguez had both the knowledge and the experience to know that the trenches were supported by inadequate shoring and that it was incorrectly installed. Therefore, a reasonable jury could conclude that ALV's negligence was a cause of plaintiff's injury.
There is little doubt that general contractors and subcontractors share the responsibility of providing and maintaining a safe workplace for their employees. Plaintiff stresses the failure of both DNA and ALV to comply with the regulatory provisions of OSHA, rendering both causally responsible for the injuries he sustained on April 29, 2005. We have no quarrel with the notion that general contractors and subcontractors may find themselves jointly responsible for negligence. Indeed, 29 C.F.R. § 1926.16 and 29 C.F.R. § 1926.20 dictate that the primary contractor and any subcontractors are responsible jointly for any failure to comply with OSHA safety standards. Kane v. Hartz Mountain Indus., Inc., 278 N.J. Super. 129, 141-42 (App. Div. 1994), aff'd, 143 N.J. 141 (1996). A subcontractor, however, is responsible only with respect to the work it was hired to do. In other words, [t]o the extent that a subcontractor of any tier agrees to perform any part of the contract, he also assumes responsibility for complying with the standards in this part with respect to that part. Thus, the prime contractor assumes the entire responsibility under the contract and the subcontractor assumes responsibility with respect to his portion of the work. With respect to subcontracted work, the prime contractor and any subcontractor or subcontractors shall be deemed to have joint responsibility.
[29 C.F.R. § 1926.16(c).]
Read literally, a general contractor is at all times responsible for the entire project, and may be liable for the negligence of a subcontractor. The subcontractor, however, is not necessarily liable for the negligence of the general contractor. Thus, ALV cannot be said to have breached a duty of care to an employee of DNA who was injured while performing work that ALV had no role in.
In this case, plaintiff's claim against ALV is predicated on the fact that Rodriguez dug the trench and was aware that OSHA regulations were violated but refused to act or speak up because the installation and removal of shoring was allegedly outside the scope of what he claims he was hired to do.
We are most reluctant to absolve ALV of all liability on a motion for summary judgment because the two jobs -- digging the trench and installing and removing the shoring -- though allegedly assigned to different parties, are unavoidably connected and governed by the provisions of OSHA, and cannot be fragmented for a contractor's self-serving reasons.
We are satisfied that there is enough evidence here to submit the case to a jury. A reasonable jury could conclude that ALV failed to take the appropriate steps to ensure compliance with OSHA regulations and protect plaintiff from harm on the excavation site. ALV certainly had the expertise and control at the job site. The case should proceed against ALV.
Reversed as to ALV only; affirmed as to all other defendants.
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