On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-8987-09.
The opinion of the court was delivered by: Parrillo, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo, Sabatino and Maven.
The opinion of the court was delivered by PARRILLO, P.J.A.D.
This matter arises from a repetitive motion injury allegedly sustained by a worker at an office building construction site. The injured worker, plaintiff Raymond Tarabokia, Jr., was employed as an electrician by an independent electrical subcontractor hired by the project's general contractor, defendant Structure Tone, to install wiring for lighting fixtures. Plaintiff suffered permanent injuries in both arms by repeatedly using a specialized power tool over the course of several weeks on the work site. He sued defendant in negligence*fn1 and his complaint was dismissed on defendant's motion for summary judgment, from which plaintiff now appeals.
The issue is whether, under the circumstances presented, the general or prime contractor has a duty to assure the safety of an employee of a subcontractor, and, more specifically, whether the scope of that duty encompasses the manner and means of using equipment supplied by the subcontractor at the contractor's work site. Because the material facts are not genuinely in dispute, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), and the scope of the duty of care is a question of law for the court to decide, City Check Cashing, Inc.
v. Mfrs. Hanover Trust Co., 166 N.J. 49, 59 (2001), the matter is ripe for summary judgment, Rule 4:46-2(c); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.) certif. denied, 154 N.J. 608 (1998); Walker v. Atl. Chrysler Plymouth, 216 N.J. Super. 255, 258 (App. Div. 1987).
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., supra, 307 N.J. Super. at 167. 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, supra, 142 N.J. at 540. We conclude that, based on the undisputed material facts, summary judgment was properly granted.
Defendant was the general contractor on a 2008 construction project to fit out the interior of five floors of an office building in Plainsboro owned by Novo Nordisk, Inc. Their relationship was governed by an American Institute of Architects (AIA) standard industry form contract that obligated defendant to perform work for the owner in accordance with contract documents. The contract also provided that it "shall not be construed to create a contractual relationship of any kind . . . between any persons or entities other than the [o]wner and [general] [c]ontractor."
In its capacity as general contractor, defendant hired Hatzel & Buehler (H&B), one of the twenty largest electrical contractors in the country, to perform the electrical work at the job site. Although defendant had not entered into a written agreement with the subcontractor, they executed a series of purchase orders.
H&B, in turn, hired plaintiff out of his union hall on January 18, 2008. At the time, he was approximately one year and ten months beyond the completion of his training as a union journeyman. Upon his employment with H&B, plaintiff signed an Employee Safety Training Acknowledgement and Commitment Statement that evidenced his receipt and review of the H&B company safety handbook and his participation in H&B's safety orientation.
H&B assigned plaintiff the task of setting anchors to support light fixtures in a concrete ceiling supported by steel beams. H&B's foremen directed plaintiff where the ceiling anchors were to be installed and selected a DX351 powder-actuated anchoring tool manufactured by Hilti (tool or DX351 tool) for use in the installation. The tool, which uses a gunpowder charge to drive anchors into concrete or steel, is analogous to a gun that recoils when fired as the anchor strikes and penetrates the hard surface.
To reach the ceiling, plaintiff had to use either a ladder, scaffolding, or an extension pole for the tool. At H&B's direction, plaintiff used the extension pole provided by his employer, which allowed him to stand on the ground while firing anchors into the ceiling. When the pole extension is used as it is intended, the worker's hands remain at chest level, never extending past shoulder height. The use of the pole extension resulted in quicker performance because plaintiff did not have to climb a ladder every time he sought to set a new anchor.
Before plaintiff started work, H&B arranged for a Hilti representative to train plaintiff on the proper and safe operation of the tool at the job site. Plaintiff received a card from Hilti signifying his completion of that training. Additionally, plaintiff attended safety meetings conducted by H&B roughly once a week throughout the duration of his work on the project.
Plaintiff began using the tool at the beginning of March 2008. He performed the task without anti-vibration gloves. He estimates that he fired the tool approximately twenty times per hour, eight hours a day, for about one month. He first experienced slight soreness in his right wrist around April 8, 2008, and after the pain worsened, reported it to his employer on April 10, 2008. He was removed from the job the next day. His left wrist symptoms began later that month. Plaintiff was later diagnosed with multiple level polyneural compression syndromes, which were determined to be caused by his repetitive use of the tool.
Pursuant to its contract with Novo Nordisk, defendant was obligated to "designate a responsible member of [its] organization at the site whose duty shall be the prevention of accidents[,]" and to "initiat[e], maintain and supervise all safety precautions and programs in connection with the performance of the [c]ontract." Moreover,
If the [c]ontract [d]ocuments give specific instructions concerning construction means, methods, techniques, sequences or procedures, the [c]ontractor shall evaluate the jobsite safety thereof and, except as stated below, shall be fully and solely responsible for the jobsite safety of such means, methods, techniques, sequences or procedures.
In accordance with its contractual obligations to the owner, defendant appointed one of its representatives, Mike Pebley, as the site safety manager (SSM), and prepared a site-specific safety management plan (SSMP) for the project, available for review on site by all subcontractors, including H&B. The stated goal of the SSMP was "to provide for the systematic identification, evaluation and prevention or control of general workplace hazards, specific job hazards and potential hazards that may arise from foreseeable conditions on the Novo Nordisk project." The SSMP's declared policy was to "[p]rovide a safe working ...