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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 ...

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