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Dunk v. Reckson Associates Realty Corp.

August 30, 2010

KENNETH VAN DUNK, SR. AND DEBORAH VAN DUNK, PLAINTIFFS-APPELLANTS,
v.
RECKSON ASSOCIATES REALTY CORPORATION; RECKSON CONSTRUCTION AND DEVELOPMENT, LLC; PAULUS, SOKOLOWSKI & FLEMING, INC.; AND JOSEPH FLEMING, P.E., DEFENDANTS, AND JAMES CONSTRUCTION COMPANY, INC., DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-5897-06.

The opinion of the court was delivered by: Stern, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued: January 21, 2010

Before Judges Stern, Graves and Newman.

Plaintiffs, Kenneth Van Dunk and his wife Deborah suing per quod, appeal from an order of the Law Division entered on February 20, 2009, which granted summary judgment to defendant James Construction Company ("James") and dismissed their complaint. Plaintiff*fn1 sustained serious injuries as a result of a trench collapse at his worksite. Plaintiffs claim that the workers' compensation bar does not apply to preclude their suit because the federal Occupational Safety and Health Administration ("OSHA") found that the accident was the result of a "willful violation" of its regulations, and therefore constituted an "intentional wrong" for State law purposes, and because James' superintendent sent plaintiff into the eighteen to twenty foot trench knowing the dangers he faced. Plaintiffs argue that "the court erred in holding that an intentional wrong under N.J.S.A. 34:15-8 had not occurred." We reverse and remand for further proceedings.

I.

Plaintiff sustained multiple injuries on August 10, 2004, as the result of a trench collapse on a construction project at Giralda Farms (the "project") in Chatham and Madison. In their complaint, plaintiffs identified defendants Reckson Associates and Reckson Construction as "related business organizations" that developed and managed the project. The complaint also alleged that Reckson Construction had contracted with James, an excavation contractor, to construct a retention pond and other related structures.

For purposes of this appeal, we must accept the facts in a manner giving all legitimate inferences to plaintiffs on James's motion for summary judgment. Estate of Hanges v. Metropolitan Prop. & Cas. Ins. Co., 202 N.J. 369, ___ (2010); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

Plaintiff was employed as a laborer by James which had to complete its "work for the retention pond and storm water upgrades before other work [on the project] could go forward." Therefore, its contract with Reckson had a "substantial completion" date of October 15, 2004. The contract also provided that James would be responsible "for planning the work to meet the schedule required by Reckson." James was also responsible for ensuring that the work was executed safely.

Glenn Key ("Key") was James' superintendent for the project and a "competent person" for purposes of OSHA. An OSHA "competent person" is [o]ne who has had training in and is knowledgeable about soil analysis, the use of protective systems, and the requirements of the OSHA standard. One who is also capable of identifying existing and predictable hazards in the surroundings or working conditions which are hazardous, unsanitary or dangerous to employees, and has the authority to take prompt corrective measures to eliminate them.

Key had received formal OSHA safety training through the Utility and Transportation Contractors Association ("UTCA") and been employed by James for thirty-two years as a construction superintendent. He had been "fully trained in the requirements of OSHA with respect to excavation work" and has undergone forty hours of OSHA training "since the accident."

From the outset of the project, James had experienced difficulties because of "record rainfalls" and "torrential rain" which impeded the progress of the project. On August 10, 2004, the day of the accident, a dewatering sump*fn2 for the retention pond under construction was being relocated. The assignment involved "mov[ing] the existing dewatering sump that was in the bottom of the pond to a location just outside of the top slope of the pond." According to J.D. Potash ("Potash"), James' president, the sump had to be relocated that day before it rained because the rest of the project "could not advance" if the sump was not relocated.

The assignment to relocate the sump involved plaintiff, Key and five other individuals. In order to relocate the sump, there had to be an excavation and construction of a trench. According to Potash, the trench was to be lined with... geo-textile fabric... which is a black kind of wool or felt-like fabric and usually in the bottom goes a layer of stone, maybe four, six inches deep of stone, then a pipe is laid, and then more stone is put around the sides and above the pipe and then the fabric is then folded over like an ...


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