November 10, 2009
ANDRIY BUDZ, MYKHAYLO PROTAS AND STANISLAW JANOCHA A/K/A PIOTR SZKLANKO, PLAINTIFFS-APPELLANTS,
PARAGON RESTORATION CORP., DEFENDANT/THIRD-PARTY PLAINTIFF-RESPONDENT,
ANTE MARKOTA, EUROPEAN COPPER SPECIALISTS, INC., THIRD-PARTY DEFENDANTS.
On appeal from Superior Court of New Jersey, Law Division, Essex County, L-4186-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 13, 2009
Before Judges Reisner, Yannotti and Chambers.
Plaintiffs Andriy Budz, Mykhaylo Protas and Stanislaw Janocha appeal from an October 20, 2008 order granting summary judgment dismissing their personal injury complaint against Paragon Restoration Corp. We affirm.
Our review of the trial court's grant of summary judgment is de novo, employing the same standard used by the trial court. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). We consider whether the undisputed material facts, viewed in the light most favorable to the non-moving party, entitle the moving party to judgment as a matter of law. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). We conclude that this case was ripe for summary judgment, and based on the undisputed material facts, summary judgment was properly granted.
The facts, as we summarize them here, are set forth in defendant's statement of material facts on the summary judgment motion. In their opposition to the motion, plaintiffs did not dispute those facts pursuant to Rule 4:46-2(b). Therefore the facts are deemed undisputed for purposes of the motion and our review on this appeal. Ibid.
Paragon was the general contractor on a 2004 project to repair a historic church in Somerville. Paragon in turn contracted with an independent sub-contractor, Schtiller & Plevy (Plevy), to replace the church roof. Plevy, a company in the roofing business since 1920, hired Ante Markota to supervise the roofing work because of his many years of experience. Markota, who had worked in the roofing field since 1962, owned his own company, European Copper Specialists, Inc., which specialized in restoring historic structures. However, for purposes of this job, he was working as an employee of Plevy.
As a Plevy supervisor, Markota hired plaintiffs, was on the job site "'ninety-five percent' of the time," and directed the manner in which plaintiffs performed their work. Neither Markota nor plaintiffs were employed by Paragon. As part of its contract with Paragon, Plevy agreed to enforce safety rules on the job.
While working on the job, plaintiffs fell from the roof, a drop of approximately ten feet, and were injured. According to plaintiffs and Markota, he directed them to work on the roof without using safety harnesses, because he believed they were unnecessary.*fn1 It is undisputed that Markota controlled plaintiffs' work and no one from Paragon knew that plaintiffs were working without safety harnesses. Markota admitted that he was responsible for ensuring the safety of the Plevy employees on the job. According to Markota, whose testimony was unrebutted on this point, no one from Paragon had authority to instruct plaintiffs on safety; that was Markota's responsibility. Further, because plaintiffs did not speak English, Markota, who spoke their language, was the only person on the job who could give them directions.
At the time of the accident, no Paragon employees were on the roof. Although Paragon's superintendent for this job, James Marshie, was on the job site at the time of the accident, he was elsewhere on the site and did not observe plaintiffs working on the roof. Nor did Marshie observe whether the plaintiffs were using safety equipment. According to Marshie, each subcontractor was responsible for its own safety equipment and the safety of its employees. There was no Occupational Safety & Health Act (OSHA) investigation of the accident and no OSHA violation notices were issued to any entity working on the job.
Relying on Alloway v. Bradlees, Inc., 157 N.J. 221, 233 (1999), Judge Cifelli reasoned that the foregoing facts required summary judgment in favor of Paragon because Paragon did not owe a duty to the plaintiffs as a matter of law. Citing Alloway, the judge concluded, "Paragon owed no duty to the plaintiffs and further, to impose any such duty upon Paragon under the facts of this case would clearly be contrary to and inconsistent with fairness and sound public policy."
Judge Cifelli reasoned that, "none of the controlling factors relied upon by our Supreme Court which strongly supported the imposition of a reasonable duty of care on the general contractor . . . in the Alloway case are existent herein." Specifically, the judge found that Paragon had no actual notice of the risk of harm to the plaintiffs, and there was no evidence that Paragon knew the plaintiffs were working without safety equipment. Accordingly, the judge also found that Paragon had no opportunity or capacity to exert control over the subcontractor's equipment. The judge also found that Paragon did not contribute to the risk or danger at the job site that resulted in the plaintiffs' accident and injuries, and the risk of danger "was clearly incidental to and arose out of the work contracted to the subcontractor, Plevy."
On this appeal, plaintiffs raise the following points for our consideration:
POINT I: FACTS THAT DEMONSTRATE AN "OSHA" VIOLATION CONSTITUTE EVIDENCE OF NEGLIGENCE THAT IS SUFFICIENT TO OVERCOME A MOTION FOR SUMMARY JUDGMENT.
POINT II: AS THE GENERAL CONTRACTOR, PARAGON RESTORATION CORP., HAS A NON-DELEGABLE DUTY BOTH STATUTORILY AND UNDER GENERAL NEGLIGENCE PRINCIPLES TO PROVIDE A SAFE WORK PLACE AND TO ENSURE COMPLIANCE WITH OSHA.
POINT III: THE ALLOWAY "FACTORS" WERE MET INDEPENDENT OF THE "OSHA" VIOLATION THAT IN ITSELF WOULD PREVENT DISMISSAL AND ALLOW THE MATTER TO BE TRIED BEFORE A JURY.
Having reviewed the record de novo, we conclude that these arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons stated in Judge Cifelli's cogent opinion placed on the record on November 14, 2008. We add the following comments.
Plaintiffs contend that OSHA places on the prime contractor a non-delegable duty for OSHA compliance, 29 C.F.R. 1926.16(a), and contend that because Paragon failed to provide safety nets or harnesses in violation of OSHA regulations, 29 C.F.R. 1926.501, it follows that defendant is automatically liable for the injuries to plaintiffs resulting from the lack of safety restraints.*fn2 We disagree.
Plaintiffs cite Alloway, supra, as well as Meder v. Resorts International Hotel, Inc., 240 N.J. Super. 470, 475-76 (App. Div. 1989), certif. denied, 121 N.J. 608 (1990), among other cases, to support their argument. Contrary to plaintiffs' contention, Alloway did not impose automatic tort liability on a general contractor for OSHA violations. As we observed in Slack v. Whalen, 327 N.J. Super. 186 (App. Div.), certif. denied, 163 N.J. 398 (2000):
Plaintiff's reliance on our holding in Meder v. Resorts Intern. Hotel, Inc., 240 N.J. Super. 470, 475-76 (App. Div. 1989), certif. denied, 121 N.J. 608 (1990), is unavailing. . . . A careful reading of Alloway makes it clear that the Court rejected Meder's attempt to impose a duty of care on an owner/contractor based solely on a finding that OSHA regulations had been violated. [Id. at 195.]
Rather, the Alloway Court held that the contractor's duty of care should be determined on "general negligence principles," 157 N.J. at 230, considering the following combination of factors:
the foreseeability of the nature and severity of the risk of injury based on the defendant's actual knowledge of dangerous conditions, the relationship of the parties and the connection between the defendant's responsibility for work progress and safety concerns, and the defendant's ability to take corrective measures to rectify the dangerous conditions [Alloway, supra, 157 N.J. at 231-32.]
As we recently indicated in Costa v. Gaccione, 408 N.J. Super. 362 (App. Div. 2009): non-compliance with [OSHA] standards does not alone create a viable cause of action, nor does it necessarily place a tort duty of care on the general contractor. Rather, violations of OSHA are to be considered with other "fairness" factors in determining the existence of a duty and the duty's scope. [Id. at 372-73.]
Applying these principles to the facts of this case, we conclude that summary judgment was properly granted. Unlike Alloway, the general contractor here had no special relationship with the subcontractor and had not helped to create the dangerous condition. By contrast, in Alloway, the contractor had unsuccessfully tried to fix the truck that caused plaintiff's injury and failed to warn her of the danger it posed. Alloway, supra, 157 N.J. at 227. Unlike Carvalho v. Toll Brothers and Developers, 143 N.J. 565, 577-78 (1996), where defendant's engineer was assigned to observe the work site and knew about the dangerous condition (an unstable trench) that caused plaintiff's death, here defendant's supervisor Marshie did not know that plaintiffs were not using safety restraints.
Defendant hired Plevy, a highly-experienced subcontractor, to perform the roofing work. Plevy hired a supervisor, Markota, who likewise had decades of experience in roofing work. Because plaintiffs did not speak English, Markota was the only one who could instruct them. Markota understood that on the site, he was responsible for the safety of his crew. At the time the accident occurred, plaintiffs had only been working at the site for a few days. Marshie was elsewhere on the site, and he had not even seen plaintiffs. We find no basis in this record to impose a duty on Paragon to require Marshie to micro-manage plaintiffs' work or, in particular, to conduct daily inspections to ensure that Markota's crew were using safety harnesses.