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Fernandes v. Dar Development Corp.

Superior Court of New Jersey, Appellate Division

June 14, 2013

ROLANDO FERNANDES, Plaintiff-Respondent/ Cross-Appellant,
DAR DEVELOPMENT CORP.[1]and DAR CONSTRUCTION, INC., [2] Defendants-Appellants/ Cross-Respondents.


Argued telephonically November 15, 2012.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-7138-06.

Joseph K. Cobuzio argued the cause for appellants (Tompkins, McGuire, Wachenfeld & Barry, L.L.P., attorneys; Mr. Cobuzio, of counsel; Jared P. DuVoisin and Matthew P. O'Malley, on the brief).

Gerald H. Clark argued the cause for respondent (Clark Law Firm, P.C., attorneys; Mr. Clark and Sarah K. Delahant, on the brief).

Before Judges Sapp-Peterson, Nugent and Haas.


Defendants, DAR Development Corp. and DAR Construction, Incorporated (collectively DAR and/or defendant) appeal from a jury verdict awarding plaintiff, Rolando Fernandes, damages for injuries he sustained when a trench collapsed while he was inside. On appeal, defendant, the general contractor for the construction project, contends the court erred when it declined to instruct the jury on plaintiff's comparative negligence, erred when it refused to permit defendant to disclose to the jury plaintiff's status as an illegal alien, and also improperly allowed the jury to hear testimony regarding post-accident events. We affirm.[3]

Prior to trial, plaintiff moved to exclude all references to his immigration status, arguing this evidence was irrelevant and unfairly prejudicial. Defendant argued that plaintiff's immigration status was central to his wage loss claim and that it was prepared to present expert testimony attributing plaintiff's inability to work to his immigration status. The trial court agreed this evidence was relevant to rebut a future wage loss claim, but ruled that to the extent plaintiff would not pursue a future wage loss claim, defendant would be barred from introducing evidence of plaintiff's wage loss claim.

The following evidence was presented at trial. DAR hired plaintiff's employer, C. Freitas Plumbing & Heating, Inc. ("Freitas"), to complete plumbing work for a residential construction project. The job required digging a 700-foot long trench that extended from the street to the house under construction. The trench was approximately five feet in depth. A makeshift stairwell had been installed in the trench. On the day of the accident, plaintiff had been in the trench connecting sewer pipes. As he walked up the stairwell, the trench caved in and buried him chest-deep in loose dirt and stones.

Although the cause of the accident was disputed at trial, all parties generally agreed that the accident could have been avoided had the requisite safety mechanisms designed to prevent cave-ins been installed. The parties disagreed about who bore the responsibility for ensuring that those precautionary steps were taken. Plaintiff presented evidence that defendant violated a number of safety regulations promulgated by the Occupational Safety and Health Administration ("OSHA"), including the necessity for utilizing a "shoring system that supports the sides of an excavation and which is designed to prevent cave-ins." 29 C.F.R. 1926.650. Defendant presented evidence demonstrating that plaintiff was an experienced trench digger/worker with knowledge of the necessary safety precautions that should be observed.

Mario Freitas, [4] Freitas's president, testified that he had three sets of OSHA certified trench boxes in August 2003, about a year prior to plaintiff's accident. While OSHA only mandates trench protection when a trench is five feet or deeper, Mario indicated the boxes were also used in shallower trenches that were deemed unstable. He stated that on occasion, plaintiff, like any other Freitas employee, would decide when a trench box was necessary. He disputed plaintiff's contention that he would have been fired if he requested a trench box. However, he admitted that on the day of the accident, he inspected the trench and determined it was "like [five] feet" deep, but chose not to use a trench box because "the dirt was . . . good."

On cross-examination, Mario admitted he had no formal OSHA training, his company had no established health and safety protocol, but that DAR did not require one. He testified, however, that he held a meeting with his employees regarding trench safety when he purchased the trench boxes in 2003. In addition, he stated that his son, a part owner of the company, received OSHA training on trench safety. However, there was no testimony as to whether that knowledge was ever passed on to the workers.

Norberto JeanSalle ("JeanSalle"), DAR's project manager, was designated by DAR as the foremost authority on safety at the Warren site. In that role, JeanSalle visited the site daily. He testified that before the accident, he observed plaintiff and Mario digging the trench. He inspected the trench at that time and testified the trench "wasn't very deep." On cross-examination, JeanSalle clarified he did not actually measure the trench, but based on his visual inspection, he estimated the trench was less than five feet deep. He admitted he had no OSHA training, but stated he received training in security and safety in construction sites while he was studying to become an architect in Argentina and over the course of his professional career. JeanSalle corroborated Mario's testimony that before plaintiff's accident, DAR did not require that its subcontractors have a written safety plan, nor did DAR have one of its own.

Defendant's liability expert, Timothy Carlson, who was qualified as an expert in construction safety and civil engineering, opined that Mario was the competent person onsite at the time of the accident and was obligated to ensure trench safety. He concluded that plaintiff's accident was ultimately "caused by [Mario's] failure to take into consideration the proximity of its trench to the gas line backfill when excavating that portion of the trench . . . ."

Plaintiff testified that he was a plumber in Portugal, his native country, for nineteen years before entering the United States in 2001, where he continued to do plumbing work with Mario for approximately three more years until the accident in 2004. Throughout his career in Portugal and in the United States, plaintiff was routinely involved in installing pipes in trenches and, prior to the accident, had completed hundreds of pipe installations in trenches. On cross-examination, plaintiff admitted he knew the hazards associated with trench digging, specifically cave-ins. Initially, plaintiff stated that Mario did not make trench protection available on work sites. However, defense counsel confronted him with a contradictory statement he made during a deposition, wherein he testified that Mario did have some trench protection systems, albeit substandard:

"QUESTION: How many trench boxes did Freitas Plumbing have available to it during your employment with them?
[ ]ANSWER: At first they didn't have any.
[ ] QUESTION: When did they obtain them?
[ ] ANSWER: And then they obtained two. They're not exactly boxes. They are basically two plywoods [sic] that have two connections in the bottom. Those hydraulic stretchers."

Plaintiff was cross-examined about his trial testimony, which was inconsistent with his deposition testimony. During his trial testimony, plaintiff stated that he never determined the propriety of using a trench box when working on a job. However, his deposition, portions of which were read into the record, disclosed otherwise:

"QUESTION: Sir, you made the determination when you were working for [Mario] as to whether or not a trench box should be used.
[ ] ANSWER: Sometimes we would get to where [Mario] would say bring the box. Someone would bring the box and we would use it.
[ ] QUESTION: Did [Mario] always make the determination as to whether a box should be used?
[ ] ANSWER: If we took the box with us, and that would be up to us while we were doing the work.
[ ] QUESTION: So there are occasions when you would decide when to use the box, correct?
[ ] ANSWER: Yes, if I left in the morning with the box and if I had it with me when I got to work, I would use [it]."

Defense counsel then asked plaintiff whether he elected to install trench boxes to protect the other employees during the four to five days preceding the accident when he had been digging the trenches and other employees were connecting the pipes inside them. Plaintiff responded that he did not. On redirect, plaintiff testified the use of trench protection was ultimately Mario's call. Plaintiff's counsel also read into the record an excerpt of plaintiff's deposition where plaintiff stated he could not "give too many suggestions" because he feared he would lose his job.

During the charge conference, defense counsel requested a charge of comparative negligence based on plaintiff's representations that he knew the hazards associated with trench work and had, on some occasions, determined whether or not to use trench protection. Defendant relied on Kane v. Hartz Mountain Indus., Inc., 278 N.J.Super. 129, 150-51 (App. Div. 1994), aff'd o.b., 143 N.J. 141 (1996), wherein the Appellate Division concluded the issue of comparative negligence on the part of the injured employee of a subcontractor can be properly submitted to the jury. The trial judge rejected defendant's argument:

[I]n [Kane], the [c]ourt made clear that there are circumstances in an employment or construction safety or construction injury setting where there may very well be evidence of comparative negligence. In [Kane], it was a situation where the - -employee was assuming risks not specifically intended to assume as part of his employment. He acted in a way in which the [c]ourt [found] permitted and, in fact, compelled a comparative negligence scenario.
Here, nobody has been presented - -there has been absolutely no evidence that the plaintiff did or didn't do anything that he should or shouldn't have done. Reasonable minds cannot differ with regard to what the plaintiff did or didn't do. There is, in this [c]ourt's view, not a scintilla of evidence to the contrary. Plaintiff, Mr. Fernandes, - - the only evidence there is - - well, what did he do? He got into the trench where his boss told him to go. Yes. He knew there [were] risks, but he didn't necessarily know specifically what the risk was or why there was a risk and whether or not actions were taken to protect him or not protect him or whether they were sufficient or not. That wasn't for him to decide, and they have no evidence of the fact that it was for him to decide, and there was no evidence that he concluded that it was unsafe and got into the trench anyway or[, ] let's put it this way, improperly unsafe.

The jury returned a verdict in favor of plaintiff, awarding him $792, 000. After including pre-judgment interest, the trial court entered a final judgment in the amount of $1, 111, 774.10. The present appeal followed.

On appeal, defendant raises the following points for our consideration:



"It is well established that an employee's contributory negligence is generally available as a defense when the employee sues a third person in an ordinary negligence action." Kane, supra, 278 N.J.Super. at 150 (citing 2B Larson's Workmen's Compensation Law, § 75.21 at 14-572 (1989)). "Further, plaintiff being a member of the workforce, with all the compulsions attendant to that status, is a factor which is subsumed in the jury's analysis of whether he acted prudently, and the jury may be so instructed." Ibid.

Here, defendant sought a jury charge on comparative negligence without presenting any evidence of plaintiff's negligence. Other than plaintiff's years of experience working in trenches and his knowledge of the risks associated with this type of employment, plaintiff presented no evidence of any known risk associated with the particular trench where plaintiff had been working prior to his accident. Mario, Freitas's president, testified he elected not to use a trench box because the "the dirt was good." Likewise, DAR's project manager reached a similar conclusion that day. He observed plaintiff and Mario digging the trench and he personally inspected the trench at that time and concluded there was no need to use a trench box because the trench "wasn't very deep."

Although DAR, through plaintiff's safety expert, elicited testimony that a witness to the accident claimed the trench had collapsed several times before plaintiff's accident, that person did not testify. Consequently, defendant failed to present competent evidence that at the time of the accident, plaintiff voluntarily and unreasonably proceeded in the face of a known danger - which is the standard against which an injured construction worker's conduct is measured. Green v. Sterling Extruder Corp., 95 N.J. 263, 270 (1984); see also Suter v. San Angelo Foundry & Mach. Co., 81 N.J. 150, 167 (1979). Therefore, the trial court did not err when it declined to charge the jury on comparative negligence.


Next, defendant urges the trial court committed reversible error when it precluded him from introducing any evidence of plaintiff's immigration status and that by doing so, defendant was unable to rebut plaintiff's claim that the injuries he sustained impacted the quality of his life. The trial court ruled that in the absence of a future wage loss claim, evidence of plaintiff's immigration status was irrelevant.

We agree that the record was replete with references to plaintiff's inability to work. Plaintiff's counsel, in his opening statement, commented that plaintiff "enjoyed working, supporting his family, and the evidence will show that he has not been able to do what he loved to do since the accident." Plaintiff's orthopedic expert, Dr. Michael Reiber, remarked that plaintiff's inability to work since the accident was well supported by the record. Plaintiff's son characterized him as "an extremely good worker." Defense counsel's objection to this statement was sustained. However, prompted by plaintiff's counsel, plaintiff's son then described how plaintiff used to work long hours. Plaintiff's other son likewise commented that his father is "[o]ne of the greatest workers [he has] worked with." Defendant argues that in light of the rampant discussion of plaintiff's inability to work, it was inequitable for the trial judge to have prevented defense counsel from cross-examining these witnesses on the actual reason plaintiff was out of work, namely, the fact that he is unable to legally obtain employment.

There was extensive testimony before the jury about plaintiff's physical disabilities since the accident. Dr. Reiber testified that plaintiff had a pelvic fracture and mild degenerative disk disease in his lower back that caused him to have difficulty walking and sleeping. He noted plaintiff experienced pain in the hips and thigh, swelling in his foot, and that plaintiff had developed arthritis in his pelvic bone. The doctor further remarked that plaintiff had limited range of motion in his shoulder, which he causally related to the impact of the rocks that struck plaintiff during the cave-in. He testified that when remedial efforts to the hip failed, plaintiff was forced to undergo a total hip replacement, neuroplasty, and a procedure to release the sciatic nerve. Doctor Reiber concluded the injuries were causally related to plaintiff's workplace accident and are permanent.

Dr. David Woo, plaintiff's treating urologist, testified plaintiff suffered urological problems in connection with his hip fracture. Specifically, plaintiff experiences blocked urinary flow and an inability to maintain an erection. He explained that even with the help of erectile dysfunction medication such as Viagra and penile injections, plaintiff was only able to achieve a thirty percent erection. He opined that plaintiff's erection problems were caused by nerve damage that obstructs blood flow to the penis and stated plaintiff would require a penile implant.

A trial court's evidentiary ruling will be reversed only where "it constitutes an abuse of discretion." State v. Feaster, 156 N.J. 1, 82 (1998), cert. denied, sub nom, Kenney v. N.J., 532 U.S. 932, 121 S.Ct. 1380, 149 L.Ed.2d 306 (2001). The ruling is accorded substantial deference, Benevenga v. Digregorio, 325 N.J.Super. 27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000). As such, a reviewing court may not substitute its own judgment for the evidentiary ruling save when "the trial court's ruling is so wide of the mark that a manifest denial of justice resulted." State v. Brown, 170 N.J. 138, 147 (2000) (internal citation and quotation omitted).

Here, even assuming plaintiff's immigration status would preclude his obtaining employment in this country, the nature of the physical injuries plaintiff sustained as a result of the accident would impact his ability to work anywhere in the world. Thus, the probative value of admitting evidence of plaintiff's illegal immigration status was outweighed by the capacity of this evidence to be unduly prejudicial to plaintiff. Moreover, given the nature of the injuries plaintiff sustained, the jury would infer either plaintiff's inability to work or a significant impact upon his ability to work, which in turn impacted the quality of plaintiff's life.


Finally, prior to trial, defendant moved to exclude the testimony of two witnesses, plaintiff's son, Andre Fernandes, [5]and Jao Horvarth, a Freitas foreman. The trial judge ruled the evidence of defendant's subsequent conduct was admissible to the extent that it pertained to the particular trench and construction site where plaintiff was injured.

Andre testified that shortly after his father was dug out of the collapsed trench, Mario called him to the Warren site to complete the sewer connection that his father had been working on before the cave-in without installing a trench box. Joel Horvarth, who had been a foreman at Freitas for over fifteen years, testified that two to three weeks after plaintiff's accident, under the watch and direction of Ricardo Flak, one of the owners of DAR, and JeanSalle, DAR's project manager, he worked inside an unprotected and unstable eight-foot-deep trench at the Warren site for several hours.

Defendant contends these statements were superfluous and had no bearing on the question of whether defendant breached its duty of care to plaintiff in particular. We disagree.

Relevant evidence is defined as any evidence that has "a tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401, see also State v. Williams, 190 N.J. 114, 122-23 (2007). Evidence is deemed relevant if there exists a "logical connection between the proffered evidence and a fact in issue." Furst v. Einstein Moomjy Inc., 182 N.J. 1, 15 (2004) (citation omitted). "[I]f the evidence makes a desired inference more probable than it would be if the evidence were not admitted, then the required logical connection has been satisfied." Williams, supra, 190 N.J. at 123. Through its witnesses, defendant presented evidence that it adhered to safety requirements at the construction site and denied knowing about or endorsing any unsafe excavation practices or conditions at the construction site. Thus, evidence of defendant's post-accident conduct in connection with the same trench was relevant to rebut this testimony, to demonstrate defendant's knowledge of the unsafe condition in the trench, and its acquiescence to the presence of the unsafe condition.

Defendant additionally urges the court should have given a limiting instruction to the jury once it determined the evidence was admissible. We note, however, defendant did not request one. In Agha v. Feiner, 198 N.J. 50, 63, (2009), the Court reiterated that consistent with our court rules, upon request, a limiting instruction should be given where evidence admitted for one purpose is inadmissible for another purpose. See also N.J.R.E. 105 (stating that "[w]hen evidence is admitted . . . for one purpose but is not admissible . . . for another purpose, the judge, upon request, shall restrict the evidence to its proper scope and shall instruct the jury accordingly[.]"). In a footnote, the Court urged that "[e]ven in the absence of a request, the judge should give a limiting instruction sua sponte where it is necessary to avoid an unjust result." Id. at 64 n.7.

We are satisfied that it would have been preferable for the court to have given a limiting instruction here even in the absence of a request from defendant. We cannot conclude, however, that the court's failure to give a limiting instruction led to an unjust result.

The critical issue here was whether defendant breached its duty of care owed to plaintiff. Both JeanSalle and Mario testified they inspected the trench on the day of the accident. Mario testified he inspected the trench prior to the accident and JeanSalle testified he inspected the trench hours before the accident. Both men determined there was no need to use a trench box, Mario because the dirt was good, and JeanSalle because he believed the trench wasn't very deep. The jury's ultimate task was not a determination of the credibility of defendant's asserted denial of knowledge of the trench's unsafe condition. Rather, the jury's ultimate task was to determine whether, in the face of conditions that existed just prior to the accident, defendant's knowledge of OSHA regulations and defendant's non-delegable duty as the general contractor to maintain safe working conditions, 29 C.F.R. 1926.650 to 1926.652, defendant breached a duty of care owed to plaintiff.

In short, there was sufficient evidence of defendant's breach of a duty of care owed to plaintiff that was causally related to plaintiff's resulting injuries without consideration of defendant's post-accident conduct. Therefore, the court's failure, sua sponte, to give a limiting instruction did not have the capacity to cause an unjust result. Agha, supra, 198 N.J. at 64 n.7.


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