TIMOTHY KNOPKA v. FRED SCHIAVONE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION


SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0442-11T2


TIMOTHY KNOPKA,


Plaintiff-Appellant,


v.


FRED SCHIAVONE, GREYHAWK NORTH

AMERICA, L.L.C., PAUL BROTHERS, INC.,


Defendants-Respondents


and


J. PALERMO MASONRY, INC.,

Defendant,


and


FRED SCHIAVONE,


Defendant/Third-Party Plaintiff,


v.


TWIN CITY FIRE INSURANCE COMPANY and

THE HARTFORD INSURANCE COMPANY,


Third Party Defendants,

__________________________________________


TIMOTHY KNOPKA,


Plaintiff,


v.


INVACARE CORPORATION, COPD SERVICES,


Defendants.

___________________________________________

May 31, 2013


Argued May 22, 2012 - Decided


Before Judges Fisher and Nugent.


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).


PER CURIAM


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 lintel1 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.

I.

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.2 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,3 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 it." Plaintiff faults Schiavone, Greyhawk, and Paul Brothers for his accident.

Schiavone, as the general contractor, was required to "take reasonable precautions for safety of, and . . . provide reasonable protection to prevent damage, injury or loss to []

. . . employees on the [w]ork[.]" Schiavone's responsibility for job safety included compliance with "all regulations required by the Federal Occupational Safety Health Act (OSHA)." As part of that responsibility, Schiavone implemented a written safety policy, which it required all of its subcontractors to implement and comply with. The written safety policy was incorporated into Palermo's subcontract and Palermo's representatives signed an acknowledgment that stated: "I have received and read the Fred M. Schiavone Construction, Inc. Safety Policy. I agree that a safe job site makes good sense for everyone and will act accordingly."

The policy also contained the following directive concerning "Lifting and Manual Handling":

No matter what our trade, we must all move objects by lifting them. To avoid injury, observe these simple safety precautions:


1. Check the load before the actual lift to be sure you can lift it. If not, get help.


2. Before lifting, get a solid footing, bend your knees and keep you[r] back straight.


3. Always walk with a load, never run. Be sure you can see where you're going.


4. Avoid twisting whenever possible.


When asked at his deposition how he would expect the lintels to be moved, Fred Schiavone responded that moving the lintels was the responsibility of the subcontractor, Palermo. He further explained that he was not a mason; "that's their trade, how they do it, they do it." Similarly, Schiavone's supervisor, Todd Simpson, who would walk through the project site each morning to check for safety hazards, testified he was unfamiliar with the means and methods of masonry. Simpson relied on Palermo to enforce safety requirements concerning the masonry. On more than one occasion, Simpson had seen Palermo employees, one on each side, pick up lintels from a pallet and move them. No one from Palermo ever expressed concern to him about moving the lintels in that manner.

Greyhawk had no responsibility to directly supervise Palermo's work. Its construction management contract with the District required it to administer various contracts, monitor scheduled activities and responsibilities of the various contractors, hold meetings with the contractors and architect, coordinate the sequence of construction, and monitor the estimated construction costs. Although the construction management contract also required Greyhawk to monitor Schiavone's safety programs, it did not impose on Greyhawk an independent contractual responsibility for job safety, generally, or moving the lintels.

Although Paul Brothers delivered the lintels to the project site, no one at Palermo other than plaintiff suggested that Paul Brothers had any obligation to Palermo employees after delivering the lintels. Palermo's foreman, James Connor, explained that once Paul Brothers delivered the lintels to the project site, a project superintendent or someone from Palermo would decide where to store the lintels until they were ready to be installed. Palermo employees would use a Lull to unload the pallets and Paul Brothers was "not responsible for anything that happen[ed] to that load after it [was] taken off the truck[.]" As to his men moving the lintels, Connor testified it was expected that Palermo's employees at times would move the lintels without the assistance of a forklift. For that reason, it was not unusual for plaintiff to move a lintel by hand.

Moreover, no one from Palermo recognized that its men were doing anything unsafe when they moved lintels. Connor did not instruct his men on how to move the lintels. He testified that had "somebody else thought we were doing something unsafe, . . . I would want the input for a better idea." Connor recognized that Palermo's foremen were "part of the safety," but he expected "everybody to speak up about safety."

Raymond Brown, Jr., a Palermo laborer, confirmed that lifting concrete lintels was part of the work. "Sometimes you might have four or five guys take a lintel and lift it up and put it in position on top of the door on top of block." Brown moved lintels, sometimes with a forklift, sometimes without a forklift. According to Brown, he could tell that a lintel was too heavy to lift just by touching it. If a lintel were too heavy to move by hand, he would "[l]eave it right there" and go get a forklift.

Plaintiff retained an expert, Howard P. Medoff, Ph.D., P.E., who asserted in his report that Schiavone, Greyhawk, and Paul Brothers were responsible for the accident. According to Medoff, Schiavone knew workers could be injured during lifting and manual handling as evidenced by Schiavone's safety policy; knew that Palermo did not have straight forklifts on site; and knew that Palermo employees were manually lifting and moving lintels. Medoff noted that Schiavone and Greyhawk were both responsible for the job site safety of Palermo workers. As to Paul Brothers, Medoff stated that it created the hazard to plaintiff by failing to properly space all layers of the lintels or pallet, and by failing to "identify lintel poundage of the individual lintels and/or otherwise warn of the heavy weight of individual lintels when they knew that these lintels should be handled by mechanical equipment and not by hand for safety reasons because of the lintel weight[.]"

Following plaintiff's injury, he filed a complaint against Schiavone, Paul Brothers, and Palermo; and thereafter amended it to include Greyhawk as a defendant.4 After the parties conducted discovery, the defendants filed separate summary judgment motions, which the trial court granted. Noting that Palermo's method of moving the lintels - - manually placing them on forks of a Lull or forklift - - had been ongoing before plaintiff injured his back, and further noting that no one had informed Schiavone or Greyhawk that moving the lintels in that manner was a safety hazard, the court concluded that Schiavone and Greyhawk breached no duty to plaintiff. Accordingly, the court granted those defendants' summary judgment motions.

The court also granted Paul Brothers' summary judgment motion. Addressing plaintiff's product liability theory, the court found no evidence that the lintels were either deficiently designed or defectively manufactured. The court further concluded that Paul Brothers had no duty to warn that the lintels were heavy, or "to put stickers on each one of the lintels or even on the box saying this is too heavy for one man to try to lift by himself . . . ." The court also dismissed plaintiff's negligence action, concluding that the risk of lifting "something heavier than you can handle" was open and obvious.

Plaintiff appeals from the orders granting summary judgment to Greyhawk, Schiavone, and Paul Brothers.

II.

A trial court must grant a summary judgment motion if "the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c); see also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 529-30 (1995). "An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." R. 4:46-2(c). If the evidence submitted on the motion "'is so one-sided that one party must prevail as a matter of law,' the trial court should not hesitate to grant summary judgment." Brill, supra, 142 N.J. at 540 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 2512, 91 L. Ed.2d 202, 214 (1986)).

When a party appeals from a trial court order granting or denying a summary judgment motion, we "'employ the same standard [of review] that governs the trial court.'" Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010) (quoting Busciglio v. DellaFave, 366 N.J. Super. 135, 139 (App. Div. 2004)). Thus, we must determine whether there was a genuine issue of material fact, and if not, whether the trial court's ruling on the law was correct. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). We review legal conclusions de novo. Henry, supra, 204 N.J. at 330.

We first address plaintiff's argument that summary judgment should not have been granted to Schiavone. Traditionally, "a general contractor enjoyed broad immunity from liability for injuries to an employee of a subcontractor resulting from either the condition of the premises or the manner in which the hired work was performed." Tarabokia v. Structure Tone, 429 N.J. Super. 103, 112-13 (App. Div. 2012) certif. denied, 2013 N.J. Lexis 435 (Apr. 24, 2013). Under that traditional concept, "the general contractor's immunity, '[is not] disturbed by the exercise of merely such general superintendence as is necessary to insure that the subcontractor performs his agreement[.]'" Id. at 113 (quoting Muhammad v. N.J. Transit, 176 N.J. 185, 199 (2003)). Immunity did not apply if the general contractor retained control over the means and methods of doing the work contracted for, if the general contractor knowingly contracted with an incompetent subcontractor to perform the work, or if the subject work constituted a nuisance per se. Ibid.

Here, none of these exceptions apply. Schiavone did not retain control of the means and methods by which Palermo transported the lintels to the project site, moved them to the specific location where they would be installed, and installed them. Plaintiff does not suggest that Palermo was an incompetent contractor, and the installation of lintels did not constitute a nuisance per se.

Plaintiff argues that in Alloway v. Bradlees, Inc., 157 N.J. 221 (1999), the Supreme Court held that a general or prime contractor has the duty to assure the safety of an employee of a subcontractor, and such duty encompasses the safety of the equipment supplied by the subcontractor and used by its employees. Plaintiff misreads Alloway, where the Court applied "the more modern approach to the traditional common law rule" concerning a general contractor's liability. Tarabokia, supra, 429 N.J. Super. at 113.

In Alloway, the court explained that "the determination of . . . a duty 'involves identifying, weighing, and balancing several factors - - 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.'" Supra, 157 N.J. at 230 (quoting Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439 (1993)). Contrary to plaintiff's assertion here, the Court did not hold that a general contractor has a duty to assure the safety of a subcontractor's employee, but rather explained that the "analysis leading to the imposition of a duty of reasonable care is 'both fact-specific and principled,' and must satisfy 'an abiding sense of basic fairness under all of the circumstances in light of considerations of public policy.'" Ibid. (quoting Hopkins, supra, 132 N.J. at 439). Foreseeability of the risk of injury is a major consideration. Ibid. "Foreseeability is generally measured by the general contractor's actual knowledge of dangerous conditions." Tarabokia, supra, 429 N.J. Super. at 114.

Those considerations do not support the imposition of a duty on Schiavone under the circumstances here. Schiavone did not exercise control over plaintiff and, understandably, did not tell plaintiff how he should perform his work. As Schiavone's employees testified, they were unfamiliar with the means and methods of performing masonry construction. Plaintiff, not Schiavone or its employees, had the immediate opportunity and ability to exercise judgment and care in determining whether to lift the lintel. More significantly, no one, including Palermo's other employees and supervisors, recognized any foreseeable risk of injury, because if a worker decided a lintel was too heavy to lift, he was expected not to lift it.

More significantly, Schiavone recognized in its safety program that employees in all trades were required to move and lift objects. For that reason, the program included instructions for lifting, to avoid the general risk of injury inherent in lifting any type of object. Schiavone assured that Palermo was aware of its safety policy by having Palermo acknowledge its receipt of the written safety manual. Under those circumstances, imposing a duty on Schiavone to do more than remind Palermo of the obvious satisfies no abiding sense of basic fairness. The trial court did not err when it entered summary judgment in favor of Schiavone.

For the same reasons, we conclude the trial court did not err by granting summary judgment to Greyhawk. Schiavone, not Greyhawk, was responsible for general superintendence and job safety. Greyhawk's primary duties were administrative. Although Greyhawk was contractually obligated to monitor Schiavone's safety programs, no evidence suggests its "monitoring" was inadequate. The trial court correctly determined that Greyhawk breached no duty to plaintiff.

Finally, we conclude the trial court did not err by granting Paul Brothers' summary judgment motion. Plaintiff's arguments to the contrary are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following comments. Plaintiff presented no evidence that the lintels were deficiently designed or manufactured. His primary contention was that the lintels were not marked for weight and did not include warnings that they should only be lifted by a machine, not by hand. But the fact that the lintels were heavy was self-evident, as was the risk of lifting any heavy object. "[T]he obviousness of the danger is an absolute defense to [a] plaintiff's failure to warn action[.]" Mathews v. Univ. Loft, Co., 387 N.J. Super. 349, 362 (App. Div.) certif. denied, 188 N.J. 577 (2006).


Affirmed.

1 A lintel is "[a] flat horizontal beam which spans the space between two supports." Alison Stones, Glossary of Medieval Art and Architecture, University of Pittsburgh, http://www.pitt.edu/ ~medart/menuglossary/lintel.htm (last visited May 21, 2013).


2 In his complaint, plaintiff identified "Fred Schiavone" as the general contractor. We will refer to Fred M. Schiavone Construction, Inc. as "Schiavone." For clarity and ease of reference, we will refer to Fred Schiavone by his full name.


3 Fred Schiavone, explained that one difference between the two machines is the size and shape of the "forks": a Lull has four individual prongs approximately two to two and one-half inches square that are used to pick up pallets; a forklift's forks are "a half inch or inch thick" and "made to pick up a block off of a pallet." Other witnesses referred to the machine used by plaintiff as a forklift.

4 Plaintiff also filed another personal injury complaint seeking compensation for injuries suffered when a shower chair collapsed. Plaintiff alleged that he had to use the shower chair because of the injuries he sustained when lifting the lintel while employed by Palermo. Although he consolidated the two actions, he later settled the case involving the shower chair.