NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 22, 2012
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-4591-08
Richard C. Borton argued the cause for appellant (Randy P. Catalano, on the brief).
Lewis K. Jackson argued the cause for respondent, Fred Schiavone (Law Offices of Styliades, Jackson and Burghardt, attorneys; Mr. Jackson, on the brief).
Therese M. Hough argued the cause for respondent, Greyhawk North America, L.L.C. (Maloof, Lebowitz, Connahan & Oleske, P.A., attorneys; Ms. Hough, on the brief).
Robert J. Gillispie, Jr. argued the cause for respondent, Paul Brothers, Inc. (Mayfield, Turner, O'Mara & Donnelly, attorneys; Mr. Gillispie, on the brief).
Before Judges Fisher and Nugent.
Plaintiff, Timothy Knopka, an injured construction worker, appeals the summary judgment dismissal of his complaint against defendants Fred Schiavone, the general contractor, Greyhawk North America, LLC, the construction manager, and Paul Brothers, Inc., the manufacturer and supplier of the stone lintel plaintiff was lifting when he injured his back. The trial court determined that Paul Brothers did not manufacture or supply defective lintels, and the other defendants breached no duty to plaintiff. We affirm.
The evidence on the motion record established the following facts. The Gloucester County Special Services School District (the District) contracted with Greyhawk North America, LLC (Greyhawk) to have Greyhawk provide construction management services, and with Fred M. Schiavone Construction, Inc. to build a 35, 000 to 40, 000 square foot "Comprehensive Child Development Center" (the project). Schiavone sub-contracted the project's masonry work to J. Palermo Masonry, Inc. (Palermo), plaintiff's employer. The subcontract required Palermo to "[f]urnish and install" as part of the masonry work "the pre-cast lintels." The lintels were to be installed above most of the project's windows. Once delivered to the project site by Paul Brothers, the lintels had to be distributed to the window locations. Palermo used a "mason's Lull, " a machine similar to a forklift, to move the lintels throughout the project, but the lintels first had to be transferred from pallets to the Lull. During that process, plaintiff was injured.
Each stone lintel was more than six feet long and weighed between 210 and 425 pounds. Thirty lintels were stacked on a pallet in five layered rows, six lintels in each row. Dunnage, or spacers, were placed between the rows of lintels, but no spacers were placed between the bottom row of lintels and the top of the pallet. Because the spacers were so small, and because the bottom row of lintels had no spacers between them and the pallet, the forklift operator could not get the forks between the rows, so workers "slid" the lintels onto the forks.
Plaintiff and a co-worker, Vaughn Thomas, were moving the last lintel from a pallet onto a forklift when plaintiff "fell down" and injured his back. No one had given them any instructions on how to lift or move the lintels, and no one objected to the way plaintiff and Thomas were moving them. Nevertheless, according to Thomas, if a lintel was too heavy "you know not to lift ...