On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-3522-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 25, 2012 -
Before Judges Graves, Harris and Koblitz.
Plaintiff Raul Carneiro*fn1 was seriously injured when he was struck by a backhoe while replacing underground water pipes at a construction site in Elmwood Park on April 25, 2007. At the time of the accident, plaintiff was employed by Central Pipe, Inc. (Central Pipe), a subcontractor hired by defendant P.M. Construction Corporation (P.M.), the general contractor for the project and the owner of the backhoe. After the manufacturer of the backhoe, John Deere, was granted summary judgment, plaintiff settled his claims against P.M. and defendant Jesco, Inc. (Jesco), which sold the backhoe to P.M. Therefore, the only remaining issue was the allocation of liability (and plaintiff's damages) between P.M. and Jesco.
Following a four day trial, the jury allocated ninety-five percent of the liability to P.M. and five percent to Jesco. P.M. appeals from the order of judgment entered on February 23, 2011, and a subsequent order denying its motion for judgment not withstanding the verdict and a new trial. For the reasons that follow, we affirm.
P.M. purchased the backhoe from Jesco in 2002, approximately five years prior to the accident. At the time of purchase, P.M. requested modifications to the rear control console. The modifications performed by Jesco included a "swap-out" of John Deere standard parts for an "alternate lever arrangement" of the backhoe arm controls.
At the time of the accident, the backhoe was being operated by Manual Martins (Martins), an employee of Central Pipe. While plaintiff was using a jackhammer to break asphalt, Martins used the backhoe's bucket loader to place the broken asphalt into an adjacent dump truck. As Martins rotated his seat to face the front of the backhoe, the seat came in contact with the control levers for the backhoe arm causing the arm to swing out and hit plaintiff, pinning him against the truck.
At trial, Jesco produced an expert, Paul Dreyer, P.E. (Dreyer), who testified to the condition of the control levers. Counsel for P.M. stipulated to Dreyer's expert qualifications. Dreyer testified: "The John Deere installation kit instructions has these levers more vertical and just about centered in the opening in the console. . . . In this case [the levers are] about three and a half inches [shifted] towards the operator."
Dreyer further stated, "In my opinion, that was something done deliberately and by design." Dreyer also explained how he tested the backhoe:
I did a test myself with the levers in their spring position neutral location. I sat in the seat. I moved it back fully and I rotated it. I moved it back fully and I reclined the back of the seat, which is the worst case scenario. I took the lever and I rotated the seat and it interfered with both levers going around in one direction and also coming back. Before I did that, I looked at the back of the seat and noticed that there were a number of scrape marks across the seat. So it has interfered with the lever a number of times over some time period.
Then I pulled the back up a little bit so it wasn't tilted fully and rotated it again, and it still interfered. A little bit less, but it still interfered. And I moved the seat forward one notch, I think there's about nine notches forward and backwards, and rotated it and it still touched the back of the seat. So there were about three other positions other than what I would call the most severe position where the lever would touch the seat rotating in one direction and also being pushed rotating back.
Dreyer's testimony was corroborated by Dennis Casey, a Jesco employee, who examined the backhoe after the accident and observed the control levers were "at least halfway out of adjustment."
Based on the Occupational Safety and Health Administration (OSHA) requirements for construction sites, Dreyer testified that a "general contractor has work site safety responsibility" because "they're in charge of the site." Dreyer acknowledged, however, that in some cases OSHA's rules and regulations ...