GILBERTO ESCOBAR v. LAUMAR ROOFING SERVICES, INC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4987-10T4

GILBERTO ESCOBAR,

Plaintiff-Appellant,

v.

LAUMAR ROOFING SERVICES, INC.,

Defendant-Respondent,

and

BRIDGEWATER-RARITAN BOARD OF

EDUCATION, GUILIANO BROTHERS, LLC

(DISCOVERY ONLY),

Defendants.

__________________________________

December 6, 2012

 

Submitted April 25, 2012 - Decided

 

Before Judges Sapp-Peterson and Ostrer.

 

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-0963-07.

 

Law Offices of Douglas J. Fleisher, attorneys for appellant (Mr. Fleisher and Thomas G. Lynch, on the brief).

 

Salmon, Ricchezza, Singer & Turchi, LLP, attorneys for respondent (Marco P. DiFlorio, on the brief).

PER CURIAM

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)1, the general contractor, dismissing his claim for damages suffered when he fell through a skylight to a floor thirty feet below. We reverse.

I.

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.2 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 "serious" violations.3 OSHA did not cite Laumar. However, plaintiff's expert opined that Laumar was nonetheless required, along with the subcontractor, to comply with the OSHA standards, based on OSHA's Multi-Employer Citation Policy, Directive Number CPL 2-0.124. Also, Laumar's own risk control manual incorporated OSHA's Fall Protection Standard, including the requirement of guardrails for surfaces more than six feet above the ground.

II.

In a written statement of reasons granting Laumar's motion for summary judgment, the trial judge recognized that general contractors have a duty to maintain a safe workplace. However, citing Dawson v. Bunker Hill Plaza Associates, 289 N.J. Super. 309, 318 (App. Div. 1996), he found Laumar owed no duty to protect plaintiff from "'operational hazards which are obvious and visible to the invitee upon ordinary observation and which are part of or incidental to the very work the contractor was hired to perform'" (citation and quotation omitted). The court implicitly concluded that plaintiff's injuries resulted from such operational hazards.

The court also applied principles set forth in Alloway v. Bradlees, Inc., 157 N.J. 221 (1999), where the Court held that a general contractor's duty of care should be determined in light of "the foreseeability of the risk of injury," and "the relationship of the parties, the nature of the attendant risk, the opportunity and ability to exercise care, and the public interest in the proposed solution." Id. at 230 (quotation and citation omitted). Applying those factors, the court found:

There is no special relationship between Laumar and Guiliano Brothers. Guiliano Brothers is a professional roofing company. They had experience in the roofing business. Escobar is a professional roofer. There is no allegation or evidence to support the contention that Laumar created the condition. There is no evidence that Laumar knew about the lack of safety restraints. Laumar was not present on the site when the injury occurred. Furthermore, Guiliano Brothers' supervisors are responsible for the safety of their employees.

 

The court recognized that OSHA regulations required a fall prevention system that was not in place, and imposed a duty on the employer who has "controlling or . . . general supervisory power over the work site." However, the court found that Guiliano, not Laumar controlled the work site. The court also noted that OSHA standards alone do not create a duty of care. The court found that Laumar's safety-related duties under its contract with the district, and its own risk control policies, did not create a duty owing to plaintiff.

On appeal, plaintiff asserts that Laumar breached a duty owed to plaintiff to provide a safe work environment.

III.

We review the trial court's grant of summary judgment de novo. Lapidoth v. Telcordia Tech., Inc., 420 N.J. Super. 411, 417 (App. Div. 2011). We apply the same standard as the trial court. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167, (App. Div.), certif. denied, 154 N.J. 608 (1998). Pursuant to Rule 4:46-2, we "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill, supra, 142 N.J. at 540. Issues of law are also subject to our plenary de novo review. Regarding "the review of legal conclusions reached on summary judgment . . . '[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.'" Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 382 (2010) (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

Our analysis is guided by the principles adopted by the Court in Alloway, supra, and in Kane v. Hartz Mountain Industries, Inc., 143 N.J. 141 (1996), aff'g o.b., 278 N.J. Super. 129 (App. Div. 1994). The court must determine whether Laumar owed a duty to assure plaintiff's safety. Assuming there exists no genuine dispute about facts upon which a duty is grounded, whether a duty is owed is an issue of law for the court. Anderson v. Sammy Redd & Assocs., 278 N.J. Super. 50, 56 (App. Div. 1994).

In Kane, which involved a workplace accident strikingly similar to the one before us, we held a general building contractor was liable to an employee of a steel framing subcontractor who fell from a steel beam. We relied in part on the employer's failure to install safety nets, which OSHA regulations required. Kane, supra, 278 N.J. Super. at 137. However, we held violation of OSHA regulations does not establish negligence per se. Id. at 142. The Court affirmed that point in Alloway, supra, 157 N.J. at 236. However, "OSHA regulations are pertinent in determining the nature and extent of any duty of care." Id. at 236. Compliance with OSHA regulations does not preclude a finding of negligence, nor does non-compliance compel a finding of negligence. Id. at 237. In weighing OSHA regulations, the court must as a threshold matter determine they apply to the defendant. Ibid.

Along with considering OSHA standards, a trial court must weigh other factors relevant to the "determination of the existence of a duty under 'general negligence principles[.]'" Id. at 230. As the trial court correctly noted, this determination implicates consideration of the foreseeability of the risk of injury; the relationship of the parties; the nature of the attendant risk; the opportunity and ability to exercise care; and the public interest. Ibid.

Applying these standards, we part company with the trial court's conclusion that Laumar owed no duty of care to plaintiff at a matter of law.4 Laumar's apparent joint obligation to comply with OSHA's fall prevention standard favors imposition of a duty. OSHA's decision to cite Guiliano and not Laumar does not necessarily mean Laumar was exempt from the standard. Laumar itself adopted it in its risk control manual, and plaintiff's expert opined that Laumar was required to follow it.

The other factors addressed in Alloway, supra, also favor imposing upon Laumar a duty of care owing to plaintiff. The risk of a fall through the skylights was foreseeable. Boroff admitted he inspected the roof before bidding on the project and presumably observed the condition of the skylights he was hired to replace. Furthermore, foreseeability is evident in Laumar's risk control manual, which adopted measures to prevent the very risk presented in this case. Also, although there is no evidence of common ownership of Laumar and Guiliano, Guiliano had worked closely with Laumar in prior projects.

Reducing the risk of a fall was within the general contractor's expertise or knowledge. Laumar and Guiliano were both roofing specialists. Indeed, once Guiliano completed its work removing the old roof, Laumar expected its own employees to mount the same roof, where they would face risks comparable to those plaintiff and his fellow Guiliano workers faced. At that point, Laumar would have borne directly, for the sake of its own employees, the same duty to prevent falls that plaintiff seeks to impose for the sake of the subcontractor's employees.

Although the risk of falling is present in virtually any roof work, the risk in this case arose from the nature of the worksite where the work was performed, and the absence of measures connected with that worksite. Plaintiff does not allege the risk arose out of the methods and means of removing old roofing material. Plaintiff does not assert he was injured by a tool provided by his employer. Cf. Tarabokia v. Structure Tone, __ N.J. Super. ___, ___ (App. Div. 2012) (slip op. at 21-22) (holding general contractor was not liable to electrical subcontractor's employee for injury caused by use of subcontractor's power tool without proper safety gloves, and general contractor exerted no control over the use of the tool). Rather, plaintiff alleges he was injured because the roof where he worked was not made safe.

Laumar unquestionably had the opportunity and the authority to install fall prevention devices. We disagree with the court's finding that Guiliano, rather than Laumar, controlled the work site. In its contract, the district both authorized and required Laumar to exercise control over the site, to make it safe, and to prevent accidents.

The public interest supports imposing a duty of care upon Laumar for plaintiff's benefit. We have held the "public policy of this State . . . favors the general contractor as the 'single repository of the responsibility for the safety of all employees of a job.'" Dawson, supra, 289 N.J. Super. at 321 (quoting Kane, supra, 278 N.J. Super. at 141). The public and the district have an interest, as reflected in the district's contract with Laumar, to assure the safety of persons employed at a public works project at a public school. Indeed, the projected cost of accident prevention was presumably incorporated in the price the public had agreed to pay for contracted work.

Finally, our decision in Dawson, supra, upon which the trial court relied, does not compel a different result. Dawson involved the issue whether a landowner-defendant should be responsible for the risks inherent in the work its contractor was hired to perform. We held it would be inappropriate to make the property owner responsible for those risks that fell within the contractor's expertise. 289 N.J. Super. at 318 ("[A]n owner is not responsible for harm which occurs to an employee as a result of the very work which the employee was hired to perform."). We noted the owner was not subject to OSHA regulations. 289 N.J. Super. at 321.

However, here the defendant is not a landowner, or even a general contractor lacking knowledge or skill in the particular trade involved. Rather, defendant is the general contractor subject to OSHA. Notwithstanding its vice-president's professed ignorance of the need for fall prevention systems, its own risk control manual reflected both knowledge and acceptance of the relevant OSHA standards.

R

eversed and remanded for further proceedings. We do not retain jurisdiction.

1 Defendant's name was misspelled as Laumer Roofing Services, Inc. in the complaint.

2 Fix testified that Laumar's sole contribution was to "put up warning lines around the perimeter."

3 OSHA regulations also require installation of safety nets for work more than twenty-five feet above ground if scaffolds, catch platforms, temporary floors, safety lines or safety belts are impractical. 29 C.F.R. 1926.105. However, OSHA did not cite this regulation in its citation of Guiliano.

4 We do not determine here the scope of that duty. As the Court indicated in Alloway, supra, 157 N.J. at 233-40, the issue of the scope of duty is separate from the issue of the existence of a duty. The issue before the trial court, and before us, addressed the existence of the duty.