On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-0963-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 25, 2012 -
Before Judges Sapp-Peterson and Ostrer.
Plaintiff Gilberto Escobar, an employee of a roofing subcontractor, Guiliano Brothers, LLC (Guiliano), appeals from the trial court's order granting summary judgment to defendant Laumar Roofing Company, Inc. (Laumar)*fn1 , the general contractor, dismissing his claim for damages suffered when he fell through a skylight to a floor thirty feet below. We reverse.
The relevant facts are largely undisputed. Plaintiff did not contest Laumar's statement of material facts. See R. 4:46-2(b) (stating that all material facts in movant's statement that are sufficiently supported will be deemed admitted unless specifically disputed with record citations). Nor did Laumar reply to contest plaintiff's responsive statement of additional facts, including an expert's opinion. Also, on a motion for summary judgment, we view the facts in a light most favorable to plaintiff as the non-moving party. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
On August 11, 2005, plaintiff fell through a skylight to the gymnasium floor of the Bridgewater Raritan Middle School in Bridgewater, New Jersey. Plaintiff was removing roofing material when he fell. At the time, the Bridgewater-Raritan Regional School District had contracted with Laumar to undertake a partial roof replacement at the middle school. The project involved the removal of 20,000 square feet of roofing material and the installation of a new roof and the replacement of twenty-one skylights. Laumar had agreed in its original $1.03 million bid to "furnish all labor, material, equipment and services necessary for all construction required to comprise the entire project, under a single prime contract[.]"
Laumar had subcontracted with Guiliano to remove the old roofing material. After Guiliano removed the old roof, Laumar intended to install the new roof and skylights. Laumar left it to Guiliano to determine how to tear down the roof. Laumar had no employees, equipment or supplies on site when plaintiff fell, and Guiliano's co-owner, Robert Fix, testified that he did not expect Laumar to provide any equipment or supervision.
Fix and Laumar's vice-president, Peter Boroff, both testified that Guiliano was responsible for safety on the site.*fn2
Fix did not discuss site safety with Boroff or anyone else from Laumar. Boroff claimed to be unaware of any safety issues at the site. Neither Guiliano nor Laumar had installed any devices or measures to prevent falls. Fix explained its fall protection measures consisted of him and another employee working near and or around the skylights to monitor employees. As for what he told his employees about working near the skylights, Fix said he told them, "Use common sense, don't back up."
Notwithstanding its reliance on Guiliano, Laumar was required under its contract with the school district to supervise and direct the work, and assume sole responsibility for the means and methods of work and for jobsite safety. That included responsibility for "initiating, maintaining and supervising all safety precautions and programs" connected with the contracted work. The contract also required Laumar to "designate a responsible member of the Contractor's organization at the site whose duty shall be the prevention of accidents." Specifically, Laumar was required to comply with Occupational Safety and Health Administration (OSHA) regulations.
OSHA regulations required various safety measures that were absent the day plaintiff fell. Employees on working surfaces more than six feet above ground were to be "protected from falling through holes (including skylights) . . . by personal fall arrest systems, covers, or guardrail systems erected around such holes." 29 C.F.R. 1926.501(b)(4)(i). Employers were also required to instruct employees to control hazards. 29 C.F.R. § 1926.21(b)(2). OSHA also required regular inspections by persons responsible for initiating and maintaining an accident prevention program. 29 C.F.R. § 1926.20(b)(2).
After an investigation, OSHA found Guiliano had violated those three regulations, deeming them ...