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Roman Budnik and Krystyna Budnik v. State of New Jersey

November 21, 2011

ROMAN BUDNIK AND KRYSTYNA BUDNIK,
PLAINTIFFS/CROSS-RESPONDENTS, AND TRAVELERS PROPERTY CASUALTY, PLAINTIFF/INTERVENORAPPELLANT/CROSS-RESPONDENT,
v.
STATE OF NEW JERSEY, A PUBLIC ENTITY, ARMM-RAMM, INC., ARMM ASSOCIATES, INC., DEFENDANTS-RESPONDENTS/ CROSS-RESPONDENTS, AND JARMEL KIZEL ARCHITECTS & ENGINEERS, INC., DEFENDANT-RESPONDENT/ CROSS-APPELLANT.
ROMAN BUDNIK, PLAINTIFF-APPELLANT/ CROSS-RESPONDENT, AND KRYSTYNA BUDNIK, PLAINTIFF/CROSS-RESPONDENT, AND TRAVELERS PROPERTY CASUALTY, PLAINTIFF/INTERVENOR-CROSS-RESPONDENT,
v.
STATE OF NEW JERSEY, A PUBLIC ENTITY, ARMM-RAMM, INC., ARMM ASSOCIATES, INC., DEFENDANTS-RESPONDENTS/ CROSS-RESPONDENTS, AND JARMEL KIZEL ARCHITECTS & ENGINEERS, INC., DEFENDANT-RESPONDENT/ CROSS-APPELLANT.
ROMAN BUDNIK, PLAINTIFF-CROSS-RESPONDENT, AND KRYSTYNA BUDNIK, PLAINTIFF-APPELLANT/CROSS-RESPONDENT, AND TRAVELERS PROPERTY CASUALTY, PLAINTIFF/INTERVENOR-CROSS-RESPONDENT,
v.
STATE OF NEW JERSEY, A PUBLIC ENTITY, ARMM-RAMM, INC., ARMM ASSOCIATES, INC., DEFENDANTS-RESPONDENTS/ CROSS-RESPONDENTS, AND JARMEL KIZEL ARCHITECTS & ENGINEERS, INC., DEFENDANT-RESPONDENT/CROSS-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Mercer County, L-2964-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 17, 2010

Before Judges Fuentes, Ashrafi and Nugent.

Plaintiffs Roman and Krystyna Budnik appeal from the Law Division's summary judgment dismissal of their personal injury and per quod complaint.*fn1 Plaintiffs sued the State, among other defendants, for damages resulting from catastrophic injuries that Roman Budnik sustained when he fell through the roof of a State-owned building. He was working for the contractor the State had hired to repair the deteriorated roof. Plaintiffs contend the summary judgment motion record raised triable issues as to whether the State is liable under the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3, for a dangerous condition of its public property and for the negligence of its employees. The Law Division concluded the State has immunity from the claims of an independent contractor's employee injured as a result of the hazardous condition the State hired the contractor to remedy. For the reasons that follow, we affirm.

I.

A.

The following facts were developed in the summary judgment motion record. The State of New Jersey Department of Treasury, Division of Property Management and Construction (the State or DPMC), hired a contractor, Renaissance Coatings, Inc. (Renaissance), to replace a roof on a State building known as the DEPTCOR warehouse in Trenton. The DPMC also hired Jarmel Kizel Architects & Engineers, Inc. (Jarmel Kizel) as a consultant. Jarmel Kizel hired ARMM-RAMM, Inc. or ARMM Associates, Inc.*fn2 (referred to collectively as ARMM-RAMM) as the "roof monitor."

The State, its consultants, and its contractor were all aware of the condition of the DEPTCOR roof by the time the accident happened in November 2005. The State learned of the roof's deteriorated condition after it hired the engineering firm, Miller-Remick Corp., in April 2001 to evaluate the roof. Miller-Remick reported a "risk of catastrophic roof failure due to corrosion of the roof deck," which had "severe deterioration" in too many areas to permit repair.

Nearly three years later, on February 6, 2004, the DPMC developed a "Scope of Work" (the Scope Document) with the objective of removing the existing 56,840 square-foot roof down to the metal decking and replacing it with a new roof system (the Project). In May 2004, pursuant to the Scope Document, the DPMC contracted with Jarmel Kizel to be its consultant and design the new roof. In June 2004, Jarmel Kizel inspected the roof surface, underside, and mounting systems; and reported that the roof was in poor condition with numerous flaws, which included "clustered areas of rust" on the underside. Although no area had "rusted through completely to be a hole," it was "logical to assume that larger areas of the deck [were] rusted and not visible from the underside." Jarmel Kizel recommended complete replacement of the roof.

On August 25, 2005, the DPMC contracted with Renaissance to be the contractor for the project. Jarmel Kizel hired ARMM-RAMM as a sub-consultant to provide roof monitors to continuously inspect and monitor the construction work. The roof inspections made by Renaissance and ARMM-RAMM further disclosed the extent to which the roof had deteriorated.

To replace the roof, Renaissance employees removed the "top layer" of roofing until the metal decking was exposed. Renaissance foreman Kevin McCarthy and ARMM-RAMM monitor Robert Martorano inspected the decking and Martorano decided which sections required replacement. According to Renaissance superintendent Thomas Walker, Renaissance employees were told to stay away from areas that needed to be replaced.

Although construction was scheduled to begin on September 12, 2005, Renaissance did not start to replace the roof until October 17, 2005. According to Renaissance foreman McCarthy, on November 23, 2005, a piece of the old roof deck was partially cut so that it could be replaced, but it was left connected on one side and was not immediately removed. McCarthy and another Renaissance employee, Dan Shultz, were preparing to place a piece of the new decking approximately three feet wide and twenty or twenty-five feet long, when wind "kind of . . . like shook it." Roman Budnik ran to McCarthy's side to try to stabilize the new decking, "but he went in front of it instead of on the side and he went through" the roof. McCarthy testified that the accident happened because the old decking was partially detached, not because it was rotted.

Roof monitor Martorano was inside the building when plaintiff fell. He was looking at the deck to be replaced, which "looked like [S]wiss cheese, very small holes in the deck," when plaintiff fell through the roof. Martorano said the roof opening through which Roman fell "looked like a trapdoor."

Plaintiff's accident was the second that day. Approximately ten minutes earlier, another Renaissance employee was carrying a piece of decking when it was "caught by wind" and "cut [him] in the face."

Renaissance superintendent Walker knew that employees were cutting old decking on the day of the accident, and that plaintiff fell through a piece of decking that was scheduled for replacement that day. Walker, however, was not at the work site at the time of the accident and testified "we could not determine" after the accident whether the cuts in the location where plaintiff fell were made by Renaissance employees or by a prior contractor.

The Department of Labor Occupational Safety and Health Administration (OSHA) investigated the accident and fined Renaissance for failing to use fall protection equipment and for failing to erect a warning line "around all sides of the roof work area." Renaissance corrected the violations during OSHA's investigation.

B.

The contract documents specifically addressed Project safety and compliance with OSHA regulations. The Scope Document required the consultant to ensure that the "design documents . . . state that the Contractor shall comply with all OSHA safety requirements such as: safety devices [and] exposure to weather." The Scope Document also required that the "roofing work shall be performed between March 15 and November 15."

The contract between the State and Renaissance provided that the Director of the DPMC*fn3 would be represented on the construction site through authorized representatives or technical staff. The contract incorporated "General Conditions" that described the duties of the technical staff:

This technical staff will conduct on-site inspections, maintain logs of construction progress and problems encountered, review and process contractors' invoices including stored materials on site, attend job meetings, serve as liaison between the architect/engineer and contractors, prepare and submit reports on special problems associated with the job, evaluate and process change orders, and generally remain fully cognizant and informed by the contractors of every aspect of ongoing construction. The Director's representatives have only those duties which are required of an owner; responsibility for completion of this project, pursuant to the contract documents, remains that of the contractor(s).

The General Conditions also authorized the Director to terminate the Renaissance contract if the contractor "persistently or repeatedly refuses or fails . . . to supply enough properly skilled workers or proper materials" or "is guilty of a substantial violation of a provision of the contract documents or otherwise defaults or neglects to carry out the work in accordance with the contract documents . . .."

Jarmel Kizel's consulting agreement required it to visit the site regularly and advise the DPMC of the work's "progress and quality." The General Conditions incorporated into Renaissance's contract reflected Jarmel Kizel's oversight of the project, stating that the architect/engineer would "monitor the execution and progress of the work" and "recommend rejection of work which it believes does not conform to the contract documents." Although the General Conditions required "[a]ll personnel ...


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