The opinion of the court was delivered by: Donio, Magistrate Judge
Presently pending before the Court are the motions for summary judgment filed by Defendants Dandrea Construction Co., Inc. (hereinafter, "Dandrea") and Greyhawk North America, L.L.C. (hereinafter, "Greyhawk").*fn1 This action arises out of an incident in which Plaintiff, Brian Jones, fell from a roof while performing construction work at the Jeffrey Clark School in Mickleton, New Jersey. Subject matter jurisdiction is premised upon 28 U.S.C. § 1332 and is based upon diversity of citizenship of the parties and the amount in controversy allegedly exceeding $75,000. For the reasons set forth below, the Court denies both motions for summary judgment.
Plaintiff filed a complaint on April 23, 2007 alleging that on or about June 16, 2005, he was employed as a commercial steel worker for R.C. Fabricators, Inc. (hereinafter, "R.C. Fabricators") installing a roof on an addition to the Jeffrey Clark School. (Compl. ¶ 10.) Plaintiff contends that the work site "was under the management and/or control" of Defendants Dandrea and Greyhawk at the time of the accident. (Id. at ¶¶ 13, 17.) Plaintiff avers that Defendants Dandrea and Greyhawk owed a duty to "those persons engaged in the performance of the construction work, including the plaintiff, to provide a reasonably safe environment, free from unreasonable hazards, within which to perform the construction work." (Id. at ¶¶ 14, 18.) Plaintiff further avers that a proximate cause of his accident was the negligence of Defendants, including, inter alia, Defendants' alleged failure to "properly supervise safety at the work-site," "implement, monitor and enforce the project's safety rules," or "provide an adequate fall protection system for workers at the construction site[.]" (Id. at ¶¶ 15, 19.) Plaintiff alleges that as a result of Defendants' purported negligence, Plaintiff sustained temporary and permanent personal injuries, including, but not limited to, "bilateral heel fractures." (Id. at ¶ 29.) Plaintiff has purportedly required surgery and placement of screws into both heels as a result of the fall. (Id. at ¶ 30.)
The following facts are not in dispute.*fn2 In 2004, the East Greenwich Township Board of Education (hereinafter, "East Greenwich") entered into agreements with a number of contractors for a project involving additions and renovations to the Jeffrey Clark and Samuel Mickle Schools. (See Notice of Mot. for Summ. J. on Behalf of Def. Dandrea Construction Co., Inc. [Doc. No. 22] (hereinafter, "Dandrea Mot."), Exs. C, E.) Pursuant to a standard form of agreement between owner and construction manager, Defendant Greyhawk entered into a contract with East Greenwich to serve as the construction manager for the project. (Dandrea Mot., Ex. F.) Defendant Dandrea entered into a contract with East Greenwich to serve as the contractor for the general construction for the project. (Pl.'s Br. in Opp. to Mot. for Summ. J. of Def. Dandrea Construction Co., Inc. [Doc. No. 35] (hereinafter, "Pl. Br. [Doc. No. 35]") 5 ¶ 3; Def., Dandrea Construction Co., Inc.'s Br. and Reply to Pl.'s Opp. to Mot. for Summ. J. [Doc. No. 41] 1 ¶ 3.) R.C. Fabricators, Plaintiff's employer, entered into a separate contract with East Greenwich to serve as the contractor for sheet metal and steel erection. (Br. in Supp. of Mot. for Summ. J. on Behalf of Def., Dandrea Construction Co., Inc. [Doc. No. 24] (hereinafter, "Dandrea Br.") 2 ¶ 3; see also Dandrea Mot., Ex. C.)
The contracts between East Greenwich and Dandrea, and East Greenwich and R.C. Fabricators are a standard form of agreement between owner and contractor, AIA document A101-1997. (Dandrea Mot., Exs. C, E.) Section 8.1.2 of the contracts incorporates General Conditions of the Contract for Construction, AIA document A201/CMa-1992 (hereinafter, "General Conditions"). (Id.)*fn3
Relevant to Dandrea's motion for summary judgment is Article 10 of the General Conditions, which concerns the "Protection of Persons and Property." (Dandrea Mot., Ex. G; Decl. of Randi A. Wolf, Esquire, in Opp. to Summ. J. Mot. of Def. Dandrea Construction Co., Inc. [Doc. No. 35-2] (hereinafter, "Wolf Decl."), Ex. E.) Section 10.2 specifically addresses the safety of persons and property, and provides:
10.2.1 The Contractor shall take reasonable precautions for safety of, and shall provide reasonable protection to prevent damage, injury or loss to:
.1 employees on the Work and other persons who may be affected thereby[.] . . . (Dandrea Mot., Ex. G.) The General Conditions also incorporate the provisions of Addendum No. 2, which state in part:
1. Each Contractor must fully comply with the job safety requirements in addition to all Federal, State and Local safety guidelines. . . .
2. The Contractor for General Construction (General Contractor) will serve as the overall Project Safety Coordinator and shall be responsible for all issues of safety and protection. Each Prime Contractor shall also designate a safety person at the job site . . . [who] shall be responsible for the safety of their work and for their workers and to make continuous inspections for all safety issues relating to his work. . . . (Wolf Decl., Ex. E.) Addendum No. 2 also provides that "[t]he General Contractor shall be responsible for the immediate investigation and resolution of all safety and environmental complaints/issues generated by Contractor employees, Owners, Owner's representatives or members of the public." (Id.)
The contract between East Greenwich and Greyhawk is a Standard Form of Agreement Between Owner and Construction Manager, AIA Document B801/CMa. (Decl. of Randi A. Wolf, Esquire, in Opp. to Mot. of Defs. Greyhawk North America, L.L.C., Greyhawk Construction Corp. and Greyhawk Construction for Summ. J. [Doc. No. 34-2] (hereinafter, "Wolf Decl. II"), Ex. B.) The scope of Greyhawk's services is set forth in "Attachment A," which states that Greyhawk "agree[s] to perform the scope of services outlined in your Request for Proposal." (Id.) "Attachment A" then sets forth a summary of Greyhawk's "typical services," which include "[s]afety requirements to be built into project," "[p]rofessional full-time on-site management" and "[m]onitoring of contractor's safety practices[.]" (Id.)*fn4 The services provided by Greyhawk were also outlined during a Preconstruction Meeting on October 28, 2004. The Project
Manager's Report of the Preconstruction Meeting states that "Greyhawk . . . [has] no responsibility to provide for the safety or protection of the trades." (Wolf Decl. II, Ex. D, Section 1.22.) The Report further indicates that "[e]ach Contractor is responsible for safety as defined in the General Conditions" and that "[a]lthough Greyhawk is not responsible for site safety, if we realize an unsafe condition exists [the Contractors] will be notified and required to correct the condition." (Id.) Additionally, Addendum No. 2 to the General Conditions of the contracts between East Greenwich and Dandrea, and East Greenwich and R.C. Fabricators provides that "[t]he Owner and their representatives, including, but not limited to the Architect and Greyhawk are not responsible for safety on this project but will endeavor to promote safety." (Wolf Decl., Ex. E.)*fn5 Similarly, Greyhawk's construction manager, James Lauria, provided deposition testimony that Greyhawk was not "responsible to enforce safety or produce the means and methods to provide that safety" as each contractor was "solely responsible for enforcing and providing for their safety plan, not Greyhawk." (Decl. of Peter J. Kurdock, Esq. [Doc. No. 23-3] (hereinafter, "Kurdock Decl."), Ex. E (Lauria Deposition Transcript) 13:25-14:9.)
As noted supra, Plaintiff's claims in this case are based on Defendants' alleged failure to ensure Plaintiff's safety at the project site. The accident at issue occurred while Plaintiff and a co-worker were installing corrugated metal decking sheets on the roof of an addition to the Jeffrey Clark school. (Dandrea Br. 4 ¶ 11; Pl. Br. [Doc. No. 35] 11.) The area of the roof that Plaintiff was installing was adjacent to a flat roof of an existing school building. (Dandrea Br. 4-5 ¶ 11; Pl. Br. [Doc. No. 35] 11-12.) While maneuvering a sheet of corrugated metal, Plaintiff stepped onto the flat roof of the existing school building. (Dandrea Br. 5 ¶ 12; Pl. Br. [Doc. No. 35] 12.) The flat roof of the existing school building was approximately twelve feet, six inches above the ground. (Dandrea Mot., Ex. Q (Report of James A. Parr, P.E. dated Nov. 24, 2008 (hereinafter, "Parr Report")) 5; Wolf Decl., Ex. I (Report of Kathleen V. Hopkins R.N., CSSM dated Oct. 31, 2008 (hereinafter, "Hopkins Report")) 3; see also Greyhawk's Letter Reply Br. dated Feb. 2, 2009 [Doc. No. 42], Ex. A (Report of Johann F. Szautner, P.E. dated Jan. 5, 2009 (hereinafter, "Szautner Report") 3.) Plaintiff was therefore working at a height of less than fifteen feet when on the flat roof of the existing building. (Dandrea Br. 15 ¶ 55.) As Plaintiff was backing up, he stepped off of the flat roof of the existing school building and fell to the ground. (Dandrea Br. 5 ¶ 13; Pl. Br. [Doc. No. 35] 12.)
There is no dispute that Plaintiff had been "tied-off" or "anchored" to a retractable lifeline for fall protection while working, but he unhooked his lanyard from the retractable life line at some point prior to his fall. (Dandrea Br. 6 ¶¶ 15-16; Pl. Br. [Doc. No. 35] 12.) Plaintiff maintains that he unhooked his lanyard because he could not have remained "tied-off" while also maneuvering the corrugated metal sheet. (Dandrea Br. 6 ¶ 16; Pl. Br. [Doc. No. 35] 12.) Plaintiff testified that prior to his accident, he never had any safety issues or concerns about the project. (Dandrea Br. 6 ¶ 17.) R.C. Fabricators' foreman for the project, Robert Cornish, testified that prior to Plaintiff's accident, he "could not recall anyone from R.C. Fabricators advising him that they were having trouble" positioning the sheet decking on the fourth side of the roof. (Id. at 8 ¶ 25.) Nor could Mr. Cornish recall Plaintiff advising of any ...