JOSEPH FRANCIS et al. v. DWAYNE BURNETT, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. 2392-05T2A-2393-05T2

JOSEPH FRANCIS and PAULA FRANCIS,

h/w,

Plaintiffs-Appellants/

Cross-Respondents,

v.

DWAYNE BURNETT, JOANNE BURNETT,

SCOTT DEDREU BUILDERS,

Defendants-Respondents,

and

JAY ARCH,

Defendant-Respondent/

Cross-Appellant.

________________________________________________________________

 

Argued February 6, 2007 - Decided March 9, 2007

Before Judges Skillman, Lisa and Grall.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, L-2870-02.

Gary D. Ginsberg argued the cause for appellants/cross-respondents Joseph Francis and Paula Francis (Ginsberg & O'Connor, attorneys; Mr. Ginsberg, on the brief).

Dennis M. Marconi argued the cause for respondents Dwayne Burnett and Joanne Burnett (Barnaba & Marconi, attorneys; Mr. Marconi, on the brief).

Read S. Howarth, argued the cause for respondent Scott Dedreu Builders (Romando, Tucker, Zirulnik & Sherlock, attorneys; Mr. Howarth, on the brief).

Stephen J. Foley, Jr., argued the cause for respondent/cross-appellant Jay Arch (Campbell, Foley, Lee, Murphy & Cernigliaro, attorneys; Mr. Foley, on the brief).

PER CURIAM

Plaintiff, Joseph Francis, appeals from a summary judgment dismissing his complaint for injuries he suffered in a work site accident. He brought this action against Dwayne and Joanne Burnett, the property owners; Scott Dedreu Builders, the framing contractor hired by the Burnetts, whose scope of work included construction of the exterior decks on the second and third floors of the house under construction; and Jason Arch, a subcontractor engaged by Dedreu to do the railing work on the decks. Plaintiff was employed by William F. Kennard, LLC, a construction company specializing in the construction of home improvements, including roofing and siding work. The Burnetts hired Kennard to install the siding on the house.

Applying the Brill standard, these are the facts. Mr. Burnett visited the job site daily. Typically, he would come at the end of the day to inspect the progress of the work. The Burnetts did not schedule or control the work. They did not provide tools for the contractors they engaged, nor did they determine the number of hours or days worked by the various contractors or their employees. The Burnetts did not have the ability to hire, fire or discipline employees of the contractors they hired. The Burnetts considered the contractors responsible for the safety of their respective jobs and employees.

In early September 2001, Mr. Burnett approached plaintiff and asked him to finish the siding in the area of the decks. Mr. Burnett had purchased the railings for the decks, and they had been delivered to the job site. Mr. Burnett wanted the railings installed so they would not be damaged or stolen while on the job site, and he wanted the siding installed first so the railings could be installed over the siding.

On September 15, 2001, plaintiff was working on a third floor deck, twenty-five feet above the ground, installing siding. Plaintiff utilized a two-foot aluminum stepladder to assist in reaching the high points where siding needed to be installed. He lost his balance and fell to the ground, causing injuries.

On the day of the accident, the Burnetts were not on the job site. Plaintiff's employer, William Kennard, was also not present. Plaintiff's co-worker, Robert Ayers, was present and was assisting plaintiff when he fell.

In his deposition testimony, Kennard stated that he made the decision to install the siding in the deck area before the railings were installed. He further stated that plaintiff should have used a pump jack or scaffolding to assist in installing the siding. Plaintiff claimed that using a pump jack was not feasible because of the small area in which he was working.

Plaintiff provided the report of a safety expert, Vincent A. Gallagher, Jr. Gallagher opined that if there had been compliance with applicable regulations of the Occupational Safety & Health Act, 29 U.S.C.A. 651 to 678 (OSHA), "the work performed by [plaintiff] would have been done while he was protected from falls from elevation. The guardrail should have been installed."

After extensive discovery, defendants filed summary judgment motions. After hearing argument, Judge Oles issued a written decision on December 20, 2005 granting summary judgment to all defendants. He issued corresponding orders on December 21, 2005. The judge determined that the Burnetts owed no duty of care to plaintiff because they were not responsible for establishing the progress of the work. Further, based on "fairness and sound public policy," Judge Oles ruled that the Burnetts owed no duty of care to plaintiff because plaintiff had the opportunity and capacity to avoid the risk of harm. The judge found that Dedreu and Arch were not liable for plaintiff's injuries because the "[i]mposition of a duty to protect the safety of other employees of a co-subcontractor is neither fair nor attains any particular public policy objective in imposing such liability."

Plaintiff appeals, arguing that (1) New Jersey law provides that summary judgment must be denied to a contractor who has violated an OSHA provision, or who, on the basis of fairness and public policy, should share responsibility for safety at a construction site, and (2) as landowners, the Burnetts may be liable for plaintiff's injuries. We reject these arguments and affirm.

Generally, the common law relieves a general contractor from liability for the negligence of a subcontractor. Alloway v. Bradlees, Inc., 157 N.J. 221, 229 (1999). "[T]he only duty imposed upon a general contractor who has hired an independent subcontractor is to ensure that the premises on which the subcontractor performs its work are in a reasonably safe condition." Ibid. (internal quotations omitted). "[I]t is not required to eliminate all the potential hazards of the job performed by the subcontractor." Ibid.

Determining whether a duty of reasonable care exists under "general negligence principles" requires the court to consider several factors: (1) the foreseeability of the risk of injury, (2) the relationship of the parties, (3) the opportunity and ability of defendant to avoid the risk of harm, and (4) the public interest in the proposed solution. Id. at 230-32. "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.'" Id. at 230 (quoting Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439 (1993)).

In Alloway, the Court applied general negligence principles to impose a duty of reasonable care on a contractor to protect a subcontractor's employee who was injured while operating her employer's truck. Id. at 232-33. The Court determined that the risk of injury was clearly foreseeable because the record reflected actual knowledge on the part of the contractor of the risk of harm. Id. at 232. Further, there was a substantial and close relationship between the parties that could and did implicate workplace safety concerns. Ibid. This close relationship created both the opportunity and capacity on the part of the contractor to exercise authority and control over the subcontractor's equipment. Id. at 233. The combination of these factors "strongly support[ed] the imposition of a duty of reasonable care on [the contractor] to assure the safety of plaintiff on the work site as a matter of fairness and sound policy." Ibid.

The Court considered whether OSHA regulatory standards impose an independent duty of care that could be applied to the contractor. Id. at 234. The Court determined that "the violation of OSHA regulations without more does not constitute the basis for an independent or direct tort remedy." Id. at 236. However, the Court held that it is highly relevant in terms of the scope of the duty owed by the contractor to the plaintiff and the possible breach of such a duty. Id. at 233-34. Thus, an OSHA violation may demonstrate evidence of negligence sufficient to overcome a motion for summary judgment. Id. at 240-41.

A year later in Slack v. Whalen, 327 N.J. Super. 186, 196 (App. Div.), certif. denied, 163 N.J. 398 (2000), we applied the general negligence principles set forth in Alloway to uphold an award of summary judgment in favor of the property owners who were also serving as the general contractors for the construction of their home. The property owners had no contractual agreement with any of the subcontractors to supervise the work or provide safety oversight, they were not present during the work day, nor were they required to be on site. Id. at 194. They did not interfere with the means or method of the work being performed by the injured plaintiff, and they were completely unaware of the methods the plaintiff utilized in completing the work. Ibid. Thus, "the risk of harm was not sufficiently foreseeable to justify imposing a duty of reasonable care on defendants." Ibid.

We rejected the plaintiff's argument that violations of OSHA regulations alone imposed a duty of care on the owner/contractor. Id. at 195-96. We observed that "[a] careful reading of Alloway makes it clear that the Court rejected [] [the] attempt to impose a duty of care on an owner/contractor based solely on a finding that OSHA regulations had been violated." Id. at 195. We explained:

Since plaintiff failed to present proof to satisfy any of the factors required by Alloway for determining the existence of a duty, the mere fact that OSHA regulations may have been violated at the worksite is not sufficient to create a legal duty on defendants to have avoided the risk of injury to plaintiff in this case.

[Id. at 195-96.]

Application of the Alloway factors to the factual complex before us does not lead to imposition of a duty as a matter of fairness and public policy. The contractors here, unlike those in Alloway, did not have the authority or control over the manner in which plaintiff installed the siding and thus could not be expected to reasonably foresee the risk of injury or have the opportunity to avoid it. Also absent was the close relationship between defendants and plaintiff and plaintiff's employer necessary to implement workplace safety. None of the defendants played any role in directing plaintiff to use a stepladder on an unguarded deck above grade as a method to reach high areas to install siding. Defendants had the right to expect that plaintiff and his employer were reasonably skilled and experienced in their trade and would employ reasonable safety measures.

Indeed, after the fact, plaintiff's employer was critical of the technique plaintiff used and suggested safer alternatives that should have been used. Presumably, had he been on the site, he would have directed plaintiff accordingly. Further, the critical OSHA regulation relied upon by plaintiff's expert requires that "[e]ach employee engaged in residential construction activities 6 feet [] or more above lower levels shall be protected by guardrail systems, safety net system, or personal fall arrest system[.]" 29 C.F.R. 1926.501(b)(13) (1994). This regulation provides no support for plaintiff's claim that defendants had an obligation to install either permanent or temporary guardrails before allowing plaintiff to do siding work in the deck area. Clearly, alternative safety measures that plaintiff and his employer could have utilized were available. Those measures were the responsibility of plaintiff and his employer, not defendants.

The facts here are more like those in Slack, where no duty was imposed on the owners/contractors. There was no contractual agreement in which any defendant agreed to supervise the work or provide safety oversight on the project. The Burnetts were not required to be on site, and they did not interfere with the means or methods used by the subcontractors to complete their respective work responsibilities. The Burnetts were not aware of the methods plaintiff was using to install the siding and whether particular safety measures were required. Plaintiff's employer had the opportunity and ability to avoid the risk of harm and ensure plaintiff was using the proper methods to install the siding.

Without the existence of a duty, whether OSHA violations were committed becomes irrelevant. An OSHA violation alone does not impose an independent duty of care on an owner/contractor. Slack, supra, 327 N.J. Super. at 195-96. We find unpersuasive plaintiff's argument that evidence of an OSHA violation is sufficient to overcome a motion for summary judgment. As the Court explained in Alloway, supra, 157 N.J. at 233-34, an OSHA violation is highly relevant only in terms of the nature and scope of the duty owed to the plaintiff. This principle is based on the premise that there must first be a duty owed. For the reasons we have stated, no such duty exists in this case.

Plaintiff argues that the Burnetts, in their capacity as landowners, have a non-delegable duty to use reasonable care to protect invitees against known or reasonably discoverable dangers. Plaintiff claims this rule protects independent contractors and their employees, such as himself, who perform work on the landowner's property. Plaintiff further argues that this rule is especially applicable in cases where the landowner retains control over the work being performed. According to plaintiff, there are sufficient facts which establish that the Burnetts, as landowners, retained control over the installation of the siding and railings for the deck. We disagree.

Generally, a landowner has a non-delegable duty to use reasonable care to protect invitees against known or reasonably discoverable dangers. Dawson v. Bunker Hill Plaza Assocs., 289 N.J. Super. 309, 317 (App. Div.), certif. denied, 146 N.J. 569 (1996). But this general rule has an exception:

However, an 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. Under this well recognized exception to the general rule, "[t]he duty to provide a reasonably safe place to work is relative to the nature of the invited endeavor and does not entail the elimination of 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." Stated differently, "[t]he landowner is under no duty to protect an employee of an independent contractor from the very hazard created by doing the contract work." Further, "[t]he landowner may assume that the worker, or his superiors, are possessed of sufficient skill to recognize the degree of danger involved and to adjust their methods of work accordingly."

[Id. at 318 (citations omitted).]

The law further provides for, in effect, an exception to the exception, prohibiting a landowner from escaping liability if the landowner retains control over the manner and means of the work, or if the work constitutes a nuisance per se, or where the landowner knowingly engages an incompetent contractor. Ibid.

There is no contention here that a nuisance or incompetent contractor were involved. And, viewing the evidence most favorably to plaintiff we conclude that no rational factfinder could find that the Burnetts controlled the manner and means of the work. See Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Thus, the outcome here is controlled by the exception to the general rule, namely that the Burnetts were under no duty to protect plaintiff from the obvious and visible hazard of an unguarded above-grade deck, the very hazard created by doing the contract work.

Affirmed.

 

Paula Francis, the wife of Joseph Francis, is also a plaintiff, asserting a per quod claim.

Plaintiff improperly named this party as Jay Arch.

Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

Arch filed a cross-appeal challenging the trial court order of May 27, 2005 denying his summary judgment motion on the grounds that he was impermissibly named after expiration of the statute of limitations by an improper application of the fictitious practice rule, see R. 4:26-4. Because of our disposition of plaintiff's appeal, it is unnecessary to address Arch's cross-appeal, and we will not discuss it further.

Gallagher's report incorrectly cites 29 C.F.R. 1926.502(b)(13) (1994).

(continued)

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A-2393-05T2

March 9, 2007