NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 28, 2013
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-4271-09.
Gary S. Graifman argued the cause for appellant (Kantrowitz, Goldhamer & Graifman, P.C., attorneys; Mr. Graifman, on the brief).
John G. O'Brien argued the cause for respondent Damazio Araujo Dasilva (Marshall, Dennehey, Warner, Coleman & Goggin, attorneys; Mr. O'Brien, on the brief).
Robert W. Gifford argued the cause for respondent Kelmar Construction, Co., Inc. (McElroy, Deutsch, Mulvaney & Carpenter, L.L.P., attorneys; Eric G. Siegel, on the brief; Mr. Gifford, of counsel and on the brief).
Before Judges Graves, Espinosa, and Guadagno.
Plaintiff Maria Goncalves, the administratrix of the estate of her late husband, Mario Goncalves (decedent), appeals from an order of the Law Division entered on March 2, 2012, dismissing her complaint against defendant Damazio Araujo DaSilva. Plaintiff also appeals from an order entered on March 7, 2012, dismissing her complaint against defendant Kelmar Construction Company, Inc. (Kelmar). We affirm.
This action arises out of a gas explosion in a newly-completed, two-family house in Irvington (the house) on October 19, 2007, which resulted in the death of decedent. Kelmar built the house and obtained a certificate of occupancy on April 5, 2007. In October 2007, Kelmar entered into a contract to sell the house to DaSilva. On October 17, 2007, Kelmar's owner, Antonio Pimienta, signed a closing authorization letter and granted limited power of attorney to a representative in order to facilitate the closing. Closing on the sale was scheduled to take place at 1:30 p.m. on October 19, 2007.
Approximately one week prior to closing, DaSilva inspected the house with Pimienta and decedent, who was employed by Kelmar to do office work and to transport workers. Everything at the house was found to be in order.
During construction of the house, Kelmar hired Rottweiler Kingdom Security (RKS), a company owned by Andy Cook, to provide security until the house was sold. As Cook explained, RKS placed dogs in the vacant homes "to keep thieves out."
On the morning of October 19, 2007, Cook, his son, and his nephew, Curtis Boykins, arrived at the house at approximately 7 a.m. to check on the dog. Upon arrival, Cook and Boykins noticed the garage door had been forced open. While still in his van, Cook called Kelmar's office. While Cook testified he called "Mario, " Pimienta was the one who answered the phone and took Cook's call. Cook advised that someone had broken into the house. Pimienta told decedent to stop by the house. At the time, decedent was with three other Kelmar employees, Jose Joao Fernandes Pereira, Herculano Araujo, and Joel De'Oliveira. They were initially going to work on another job site but proceeded to the house instead. They arrived within a few minutes of Cook's call.
De'Oliveira observed decedent speaking with Cook, and although De'Oliveira could not understand the conversation, he explained that it was not conducted in an excited or panicked manner, and did not appear to be the type of conversation signifying danger or warning of any kind. Cook, decedent and the three other employees entered the house. At approximately 7:30 a.m., less than a minute after the men entered the home, it exploded. The building was leveled by the explosion and the five men were trapped under the burning rubble. Araujo managed to phone Pimienta to notify him that the home had exploded. Pimienta immediately called decedent but received no answer. Pimienta then called Araujo who informed him that the house was still burning and to call the fire department. Pimienta dialed 911.
When the police and firemen arrived, they were able to extract Cook, Araujo, Pereira, and De'Oliveira from the rubble; all were severely burned. Decedent was already dead and his body was recovered.
Several agencies investigated the explosion and determined that unknown burglars had stolen copper piping from the home, and in the process, had dislodged a gas line. This caused a gas leak, and then an unknown event caused the leaking gas to combust, destroying the home.
As decedent suffered a fatal accident in the course of his employment with Kelmar, plaintiff receives workers' compensation death benefits.
In her complaint, plaintiff alleges the explosion which caused decedent's death was proximately caused by the negligence and carelessness of Kelmar. Plaintiff further alleges that Kelmar knowingly dispatched decedent to the premises under circumstances where Kelmar knew or should have known that it was unsafe and dangerous for decedent to be there and there was ...