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Costa v. Gaccione

May 27, 2009

DIONE DESOUSA COSTA, PLAINTIFF-APPELLANT,
v.
SALVATORE GACCIONE AND MARIELLA GACCIONE, DEFENDANTS-RESPONDENTS, AND COPELAND CONSTRUCTION; GEMACO CONSTRUCTION COMPANY; AND GEMACO CORPORATION, DEFENDANTS.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-2319-06.

The opinion of the court was delivered by: King, P.J.A.D. (retired and temporarily assigned on recall)

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Submitted April 1, 2009

Before Judges Fisher, Baxter and King

Plaintiff appeals the summary judgment dismissal of his claim seeking recovery for injuries sustained on allegedly defective scaffolding at a home construction site. He claims that defendant property owners acted as general contractors, and that their failure to ensure job-site safety constituted negligence and a violation of the Occupational Safety & Health Act, 29 U.S.C.A. § 651-658 (OSHA). Because issues of material fact exist as to defendant Salvatore Gaccione's status as general contractor and his potential negligence, we reverse and remand for trial. We affirm as to his daughter, defendant Mariella Gaccione.

I.

This is the procedural background. Plaintiff Dione DeSousa Costa filed a complaint on March 15, 2006 and later filed an amended complaint on May 18, 2006 alleging that defendants violated federal and New Jersey law at a construction site by failing to take appropriate safety measures and to enforce OSHA standards. While climbing makeshift scaffolding, plaintiff fell about thirteen feet and sustained serious injury. Defendant Salvatore Gaccione was the developer at the site and plaintiff asserts that he served as the de facto general contractor.

On July 5, 2007 defendants Gaccione moved for summary judgment arguing that no duty obligated them to ensure safety at the project. On August 17, 2007 the judge heard oral argument and granted summary judgment dismissing all claims against defendants Gaccione. On September 27, 2007 plaintiff filed a cross-motion for reconsideration of the summary judgment. After oral argument on November 16, 2007 the judge denied the motion.

As to the other defendants in the case, the denial of reconsideration was not a final order. However, plaintiff eventually settled with these defendants; a stipulation of dismissal filed on July 17, 2008 finalized the earlier summary judgment order.

II.

These are the relevant facts. Defendant Salvatore Gaccione*fn1 is experienced in land development. Some of his construction projects led to housing for his family, while others were sold for profit or were rented for income. Gaccione and his daughter, defendant Mariella Gaccione, purchased property in Lyndhurst for the purpose of demolishing the existing structure to rebuild a residence for Gaccione's two daughters.

Plaintiff asserts that the Gacciones never intended to inhabit the property but rather planned to sell for profit or to rent. Gaccione's interest was ultimately transferred to his other daughter. Thus, title is held by Gaccione's two daughters.

In preparation for the project, Gaccione sought building permits as an "owner in fee," and listed Copeland Construction (Copeland) -- a company with which he frequently did business -- as the contractor. Apparently the municipality needed a contractor's name for the approval form. Gaccione claimed he had permission to use Copeland's name because it had a license to do masonry work. On the permit request form, Gaccione stated that he considered himself the "person responsible for the work" and recognized his name on the form as the person "so responsible."

Gaccione allegedly performed many of the general contractor functions; he hired various subcontractors and an architect, scheduled their work, and purchased building materials which the contractors requested. Gaccione frequented the job site, oversaw the work and performed some managerial tasks; however, he maintains that he did "not retain control over the means or methods of work . . . or [] work-site safety," but rather relied on the contractors' "professional experience" to perform the work correctly and safely. Still, the principal of defendant Copeland testified that Gaccione was the general contractor at the site. Indeed, for the purposes of summary judgment, the trial court assumed Gaccione was in fact the general contractor.

Among the contractors hired was defendant Gemaco Construction Company (Gemaco) to complete the framing. Gemaco then subcontracted the framing work and hired a company called LeBrau Framing (LeBrau); plaintiff was an employee of LeBrau and was assigned to the Gaccione job site.

Plaintiff's accident occurred on Tuesday, November 23, 2004 when he was directed to use makeshift scaffolding to install a micro-beam structure in the foyer of the building. The scaffolding structure was thirteen to fourteen feet high, six to seven feet long, and about two to three feet wide. It was made from scrap wood assembled at the job site; access to it was facilitated by nailing pieces of wood to the studs on the wall. While plaintiff was descending the make-shift scaffolding structure to get materials, he ...


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