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Metodi Donchev and Faith Donchev v. Dennis Desimone

September 24, 2012


On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-0956-05.

Per curiam.


Argued September 12, 2012

Before Judges Simonelli, Accurso and Lisa.

Edward L. Thornton argued the cause for appellant (Methfessel & Werbel, attorneys; Mr. Thornton, of counsel and on the brief; Amanda J. Sawyer, on the brief). Respondents have not filed a brief.*fn1

Defendant Dennis DeSimone appeals from the September 8, 2006, and January 5, 2007 Law Division orders, which denied his motions for summary judgment. Defendant also appeals from the July 8, 2011 judgment entered in plaintiffs' favor, and the September 6, 2011 order, which denied his post-trial cross-motion for remittitur or, in the alternative, a new trial. We conclude that summary judgment should have been granted, and reverse.

The following facts are derived from evidence submitted by the parties in support of, and in opposition to, the summary judgment motion, viewed in a light most favorable to plaintiff. See Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

Defendant was the president of D.N. DeSimone Construction Company, Inc. (DND), a New Jersey corporation. Although he had approximately thirty-two years of construction experience, he did not usually supervise DND's construction projects. Instead, DND had three work crews, each of which was supervised by a foreman.

Defendant hired DND to complete several projects at his home, including garage roof repairs. DND usually hired subcontractors for roofing work, but defendant decided to use DND's employees because the job was minor. DND paid for all of the project materials and labor and billed defendant.

On June 16, 2003, plaintiff Metodi Donchev (Donchev) and two other DND employees reported to defendant's home to make the garage roof repairs. When they arrived, defendant told them that the roof had been leaking, and pointed out a soft-spot in the rear of the garage "right of center." Defendant left the work site approximately ten minutes after the employees had arrived. No foreman was present at the time, and no employee was "in charge" of the work site; however, at least one of the employees had prior roofing experience.

Donchev had been employed by DND since 1996. Prior thereto, he worked for another construction company as well as independently in the field, and had experience with framing and carpentry work, and installing sheathing for walls and roofs. He purportedly had no experience replacing roofs, and his role on the day of the accident was limited to stripping the existing garage roof.

While working on the garage roof on June 16, 2003, Donchev fell through a soft spot in the "back rear corner" and landed on his groin on a wooden beam, injuring his perineal area and right shoulder. He continued working, and went to his family physician the next day. On June 18, 2003, he went to the hospital for treatment. He later suffered complications related to his perineal injury, and was hospitalized from June 26 to July 2, 2003. On September 9, 2003, his doctor determined that his injuries had healed, and cleared him to return to work. In June 2004, Donchev filed a claim petition with the Division of Workers' Compensation (Division), seeking benefits for his injuries.

At his deposition, Donchev admitted that defendant had warned him and his co-workers that the garage roof had been leaking; however, he claimed it was difficult to determine the extent of the water damage because insulation covered the roof. Nonetheless, he also admitted that: (1) he saw water stains on the insulation; (2) the specific spot he fell through had not looked unsafe or unstable; (3) he and his co-workers had walked around the roof "all morning long" without incident; and (4) he knew that wood could rot if exposed to water.

On June 7, 2005, Donchev and his wife, plaintiff Faith Donchev*fn2 filed a complaint against defendant individually. Defendant filed a summary judgment motion, which the trial judge denied in a September 8, 2006 order and oral opinion. The judge acknowledged that "in normal circumstances," defendant would not be liable for Donchev's injuries in his capacity as landowner because defendant hired DND to fix the roof, Donchev was injured while performing the work for which DND ...

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