ARTHUR WILKINSON v. S.B. KING & SON INC.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3848-08T3

A-3884-08T3

ARTHUR WILKINSON and DEBORAH

WILKINSON,

Plaintiffs-Respondents,

v.

S.B. KING & SON, INC. and

ROBERT FRIZELL, INC.,

Defendants,

and

SEA HOME CONSTRUCTION, INC.,

Defendant-Appellant,

and

LINDA O. KING and ED KING,

Defendants/Third-Party

Plaintiffs,

v.

SELECTIVE INSURANCE COMPANY,

Third-Party Defendant.

________________________________________________________________

ARTHUR WILKINSON and DEBORAH

WILKINSON,

Plaintiffs-Appellants,

v.

S.B. KING & SON, INC. and

SEA HOME CONSTRUCTION, INC.,

Defendants,

and

ROBERT FRIZELL, INC.,

Defendant-Respondent,

and

LINDA O. KING and ED KING,

Defendants/Third-Party

Plaintiffs,

v.

SELECTIVE INSURANCE COMPANY,

Third-Party Defendant.

________________________________________________________________

A

July 21, 2011

rgued and Submitted February 15, 2011 - Decided

 

Before Judges Carchman, Graves and Waugh.

 

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket Number L-3195-05.

 

Bruce E. Helies argued the cause for appellant (A-3848-08) Sea Home Construction, Inc. (Wolff, Helies, Duggan, Spaeth & Lucas, P.A., attorneys; Mr. Helies, on the brief).

 

Riaz A. Mian argued the cause for respondents (A-3848-08) Arthur and Deborah Wilkinson (Jean Donoghue-Simon, attorney; Ms. Donoghue-Simon, on the brief).

 

Jean Donoghue-Simon, attorney for appellants (A-3884-08) Arthur and Deborah Wilkinson.

 

Martin, Gunn & Martin, P.A., attorneys for respondent (A-3884-08) David Frizell, Inc. (William J. Martin and Todd M. Parisi, on the brief).

PER CURIAM

Plaintiff Arthur Wilkinson sustained serious injuries when he fell from a scaffold while employed on a renovation project. He brought an action1 against his employer, Robert Frizell, Inc. (Frizell, Inc.), claiming that the improper construction of the scaffold and the failure to provide him with a safety harness constituted an intentional wrong. He joined another entity, defendant Sea Home Construction, Inc. (Sea Home), owned by Robert Frizell's wife, contending that Sea Home was a subcontractor on the project and also liable for his injuries.

After first denying Frizell, Inc.'s motion for summary judgment, the trial court granted reconsideration and dismissed the claim concluding that Frizell Inc.'s conduct was not so plainly beyond the type of conduct the Legislature intended to immunize under the Workers' Compensation Act (the Act), N.J.S.A. 34:15-1 to -136.1. The judge also denied a summary judgment motion by Sea Home, because he found there was an issue of fact with respect to the company's existence and its involvement at the job site. The matter then proceeded to trial and the jury found in plaintiff's favor against Sea Home.

Plaintiff appeals the dismissal of his case against Frizell, Inc.; and Sea Home, in a separate appeal, which we now consolidate for the purposes of this opinion, appeals from the denial of its motion for summary judgment.

We conclude that the judge properly granted summary judgment as to Frizell, Inc. and improperly denied Sea Home's motion for summary judgment. Accordingly, we affirm as to Frizell, Inc. and reverse as to Sea Home.

I.

We provide an expansive view of the facts as presented to the judges on the various motions under review.2

Robert Frizell (Bob)3 was the president of Frizell, Inc., which he had incorporated as a business in 1974. His wife, Linda Frizell (Linda) was the office manager. Bob specialized in renovations of historical residences.

On March 28, 2003, Frizell, Inc. entered into a contract with Linda King and Ed King (King) for the restoration of the Williamson-Sickels barn located at 21 Driftwood Lane, Colts Neck. The property was owned by the Kings. King and Frizell, Inc. were the sole parties to the contract.

Bob signed the contract as president of Frizell Inc., and as president, he was listed as the contractor's sole representative. The contract was a standard American Institute of Architects (AIA) contract between an owner and contractor that incorporated by reference AIA's general conditions for a construction contract. Under those provisions, Frizell Inc. was "fully and solely responsible for . . . jobsite safety . . . ."

In October 2003, when the barn was being renovated, Frizell, Inc. had four employees, including Bob, Linda, Gadencio Villa (referred to as "Villa", "Goudy" or "G"), who worked as a helper and laborer, and plaintiff. Plaintiff initially had worked for Bob from 1993 to 1995, and then left because he had an accident. He returned in 1998, and in the interim, he had worked in the housekeeping department of a hospital.

Bob described plaintiff as "a carpenter," who also worked "[a]t times" as a laborer. Plaintiff characterized himself a "laborer" who did "everything from concrete work to roofing." He "dug footings . . . laid block, built additions, decks, roofs," and "whatever [Bob] needed me to do."

For the King barn, Frizell, Inc. repointed the stonework, restored the flooring, shored up the oak beams and shingled the roof. Plaintiff said he knew how to do the work "[f]rom previous jobs . . . ."

They also re-sided the barn with shingles. The re-siding required the erection of a scaffolding "pump jack system" that would allow the workers to advance up the side of the building as they installed the shingles. The pump jack system consisted of poles that were made of two "two-by-fours" that were nailed together, a mechanical pump that was similar to a car jack, a bracket and an adjustable aluminum or wooden plank, called "a pick." The height of the scaffold was created by nailing together overlapping two-by-fours of various lengths. A metal collar was screwed into a beam on the barn's roof with an "L" bracket to hold the poles erect and to keep the planks suspended if a lower portion of the poles broke.

Plaintiff had worked on the pump jack system with Bob on five other projects, but he had never erected the system. In his deposition, plaintiff said he and Villa started to erect the pump jack, but they "ran into trouble and Bob showed up and Bob finished helping us."

The "trouble" was that two of the two-by-four pump jacks "snapped." Plaintiff testified at his deposition:

Bob kept the poles, the real long poles he kept out in his yard. He saved a lot of wood from the jobs. He had -- out beyond his barn he had a big pile of wood, pump jacks, planks that he would keep out there. These are -- we really don't use the long two by four pump jacks often. These were built for another job approximately two years before this job. After the job, instead of throwing them away, Bob stored them out in the yard. When we did this job, he told us to grab the four pump jacks and bring them to the job. We brought them to the job. . . . [W]e got to the job. He told me and G to start erecting them. The first one we were erecting snapped. We went onto the second one. We were walking it up. It got to a certain point and it snapped.

 

I called Bob on his cell and told him the pump jacks are old and brittle. I felt they were old and brittle.

. . . .

He said he was five minutes out and when he came he would look at it. When he showed up, he said instead of going out and buying new lumber, we'll tie a rope to the end, have G go up on the roof and pull it up that way and I footed it. . . . G pulled it up and I walked it up so it wouldn't snap. He said . . . once they were erected straight up and down they were strong as steel.

[(Emphasis added).]

Plaintiff screwed the top of the system to the roof beam. In his deposition, he estimated the scaffold was "[a]pproximately 25 to 30 feet" high.

Once the pump jacks were set up, plaintiff left for a one-week vacation. While he was gone, Bob and Villa began on one side of the barn, and when plaintiff returned, he and Villa continued to work on that same side. Bob would check their work at the end of the day. They gradually raised the pick as they worked up the side of the barn.

Plaintiff had been working on the re-siding at a height of between 25-30 feet for approximately two weeks when the scaffold collapsed on October 22, 2003, and plaintiff was seriously injured.

Plaintiff stated that the wooden pump jack "snapped." "[T]he force of the weight . . . ripped" and detached the "L" bracket from the roof, and the entire system fell to the ground. With the exception of the set-up day, during the two weeks plaintiff had used the scaffolding, he had not noticed anything that caused him concern or indicated there might be a problem. He saw no cracking wood or other indication the pole might break.

However, he also said that when they had worked on the front and side of the barn in July, "one of the pump jacks started to blow out and we took it down and put more nails in it and put it back up." Plaintiff asked Bob for a safety harness and Bob told him, "We don't have one, tie a rope around [yourself]." Plaintiff claimed Bob also had failed to provide him with a hard hat despite his requests for one.

Bob examined the collapsed scaffolding when he returned from vacation. He said there was "a knot" at the joint where they had nailed together the two-by-fours, "and it just weakened that position."

The parties disagreed about who had placed the scaffolding into position with Bob asserting that plaintiff had moved the scaffolding to work on another side. Bob claimed that photographs showed that the poles had been placed directly onto the ground, but "they're usually set on a piece of wood so they don't sink." "They should have been tied into the building," but he did not see that they were.

In addition, the photographs showed no rail which, according to Bob, normally would have been placed behind the worker. The rail was created by a two-by-four lashed to the system with wires, and it was the responsibility of the person working on the system to put on the rail. Bob said the system rails were in place when he used it for the other sides of the barn.

Bob provided plaintiff with "[o]ngoing on the job training" of "as much information and as much knowledge as he was ready to absorb." He "instructed [plaintiff] on the erection of the scaffolding, how to brace it."

A major issue in the summary judgment motions was whether Sea Home had any liability for plaintiff's accident. When Frizell, Inc. had been incorporated in 1974, it primarily engaged in small commercial construction business. Sea Home was created to engage in residential renovations during the 1989-to-1990 downturn in the commercial construction business. According to Bob, Sea Home "was an idea that never got off the ground" because he "got into the public work instead."

All of plaintiff's wage and tax records established that in 2003, he was paid by Frizell, Inc.: his W-2 for 2003 was from Frizell, Inc.; all of his paychecks for 2003 were under the name "Bob Frizell Builders"; and quarterly reports to the State Division of Revenue for the quarters ending March and September 2003 showed plaintiff's wages as being paid under the taxpayer ID of Frizell, Inc.

The only contract for the work on the barn was between Frizell, Inc. and King; there was no contract between Sea Home and King. When asked, "[W]hat was Sea Home's function" at the King barn site, Bob responded, "None" and that Sea Home had had "[a]bsolutely" no role in the project.

A certificate of insurance issued to King named both Frizell, Inc. and Sea Home. The certificate established that a general, automobile, and excess liability policy had been issued, and a workers' compensation policy had been issued under a separate "WCP" policy number. An insurance policy issued by Selective Way Insurance Company for property, general liability, automobile, and umbrella coverage, for the period May 21, 2003, to May 21, 2004, showed the named insured as "ROBERT FRIZELL, INC. & SEA HOME CONSTRUCTION, INC."

Bob explained that he had applied for insurance for Sea Home in the past, but he did not maintain it at the time of the accident. He did not know why Sea Home's name was on the certificate and said the insurance company had "put it on there."

During his deposition, Bob was questioned about Sea Home's status as follows:

Q. How many jobs per year would Sea Home Construction take on?

 

A. I don't -- I don't recall. I don't recall any being -- I don't recall any contracts being under Sea Home.

 

Q. Are you a principal of Sea Home Construction?

 

A. I don't think so.

 

Q. That would be Linda?

 

A. Yes.

 

. . . .

 

Q. Have you ever bid any jobs under Sea Home Construction?

 

A. I don't think so.

 

Q. Ever negotiate any contracts under Sea Home?

 

A. I don't think so.

 

Q. Do you have any vehicles that are used for Sea Home Construction?

 

A. No.

 

Q. Any equipment, heavy duty equipment under Sea Home Construction?

 

A. No.

 

Q. You pay taxes under Sea Home Construction?

 

A. I believe we've eliminated Sea Home Construction. I think that's been done.

 

Q. Do you know when?

 

A. No.

 

Q. Linda would know all that?

 

A. Linda would probably have a record of it.

 

. . . .

 

She would have the records in the office somewhere.

When asked if he had "ever filed taxes under Sea Home Construction," Bob replied, "No, I don't think so," but he said "Linda would know."

At Linda's deposition, she said she had paid taxes on Sea Home in 1996 and 1997 but that she had dissolved the company in 1997; moreover, according to Linda, they never obtained any jobs under Sea Home.

When asked how she had dissolved the company, Linda replied:

[W]hen the State sent in for quarterly reports, I sent in a letter saying I dissolved it, the state, the federal, that's all I recall at this point and it ceased to exist.

 

. . . .

 

I wouldn't be paying taxes. There was nothing left. I never received anything that they wanted anything from me and I assumed that was it . . . .

She also said they had stopped using the Sea Home phone number when the company dissolved, and they had advertised for Sea Home on the utility trucks that were used for the Frizell, Inc.

Linda said she had asked her agent to take the Sea Home name off the insurance and did not know why it was still there. It was an "oversight" that she had just "ignore[d]" because, to her, "that company is so long gone." The insurance bills were addressed to Frizell, Inc., and she used that account to pay them. She said her husband would tell her to get an insurance certificate for their jobs, and she would call the insurance agency for the certificate. Regarding the certificate of insurance that she obtained for the King job, Linda said:

Q. Whoever you spoke to at Conover Byer, do you recall with respect to this job and getting insurance coverage for this job and getting the certificate for insurance with respect to this job, do you remember specifically what you told that person in terms of getting additional insurance coverage?

 

A. It's not something you really discuss. I would call her up. Sometimes I don't even talk to her. It comes in the mail.

 

Q. Okay. What do you mean by that, sometimes you don't even talk to her?

 

A. I leave a message. I leave a message on her answering machine. . . . [I]t's just something that's so normally done, I don't

--

 

Q. Okay. My question is: So, you don't know what specific words you would have used when you were making this request?

 

A. Put Ed King on our certificate of insurance as an insurer [sic]. Put Ed King naming him as an insurer [sic] on our insurance.

 

Q. You recall back in 2002 using those words?

 

A. No, I do not. That's basically with any business I deal with, that's what I would say.

 

. . . .

 

Q. And did you actually look at this particular . . . certificate of insurance?

 

A. I actually take it and just put it in a file.

A record of "ANNUAL REPORT STATUS" for Sea Home issued on April 3, 2007, by the New Jersey Division of Revenue showed that "the last available annual report" for Sea Home was filed with the Division on April 22, 2002 (over a year before plaintiff's accident). A March 14, 2007 business entity status report for Sea Home from the "New Jersey State Business Gateway Service," showed: Sea Home's last annual report "Paid Year" was 2001; the last annual report was filed on April 22, 2002; the company's status had been revoked for not filing an annual report for two consecutive years; and it listed a "DOR Suspension Start Date" of June 16, 2006.

Plaintiff claimed that when he was hired in 1993, Bob at first paid him cash and then he was paid "through Sea Homes" until he left in 1995. When he returned in 1998, he was paid by "Sea Home, Robert Frizell," but he was unaware they were different companies. Plaintiff submitted no evidence that showed he was paid by Sea Home, and he did not explain the basis for his belief that he was paid by that company.

Plaintiff was asked about his understanding "of those two companies in or around the time of your accident." He said:

A. It was -- according to my cousin,4 Bob, when he would bid on state jobs he would have to pay us a certain fee. So, when I first started I was -- when I first came back to him I was making 12 and 16 bucks an hour. If I worked on houses on the job it would be 12 bucks. If I worked on the state jobs it would be 16 bucks.

 

. . . .

 

He had got caught by the state doing that and he started another company so he could do the state jobs.

 

Q. And what was that company's name?

 

A. I believe it was Robert Frizell, Inc.

 

Q. And, to your knowledge, when you came back to work for him in 1998 . . . who were you working for, Robert Frizell, Inc. or Sea Home?

 

A. '98, Sea Home. I believe the trucks, all the trucks said 1-800-SEA-HOME and people would ask oh, you know, I need, your boss, you know . . . and I would tell them to call 1-800-SEA-HOME and stuff like that.

 

Q. Your paycheck right before you got hurt was from whom?

 

A. I believe it said Robert Frizell . . . on it because he switched over to computer checks.

 

Q. Was there any equipment, to your knowledge, that belonged to Sea Home on this job site?

 

A. The dump truck and the tractor.

 

Q. Okay. And how do you know that they were Sea Home?

 

A. Because it said 1-800-SEA-HOME on it. I assumed that.

 

. . . .

 

Q. Do you know if Mr. Frizell advertised for Sea Home Construction?

 

A. Yes.

 

Q. How do you know that?

 

A. It was on their dump truck.

 

. . . .

 

A. The phone number that I would use, I would use to call him was the 1-800-SEA-HOME.

 

Q. Was that phone number still in use in 2003?

A. Yes.

 

Q. At the time you worked for Mr. Frizell from 1998 to 2003, do you know if he bid any jobs specifically under Sea Home?

 

A. I was under the impression that all Sea Home jobs were the non state jobs and the state jobs were Robert Frizell jobs.

 

. . . .

 

[T]he barn wasn't a state job, so I assumed it was under Sea Home.

Initially, the trucks they used "said Sea Home construction on them." But plaintiff said that "98, around approximately 2000 [Bob] bought -- he got rid of the old Sea Home pickup and got a Dodge pickup and then a couple of months later he bought a van." When Bob got the new trucks, "he didn't put any [Sea Home] sticker on any of them." At the time of plaintiff's accident, Bob no longer had any trucks that said Sea Home, except for a dump truck that had "1-800-SEA-HOME" painted on it. Bob used the dump truck to pick up supplies. When plaintiff was required to pick up supplies where Bob had an account, he always asked to pick up the items for "Robert Frizell."

Use of the Sea Home truck appeared to be limited. It was used for five or ten minutes for grading and with virtually no use thereafter. It does not appear that it was used in connection with the pump jack materials.

In his deposition, King related why he chose Frizell, Inc.:

Q. And how did you become acquainted with Mr. Frizell?

 

A. Michael Calafati had recommended three different builders to me.

. . . .

 

Q. What was the reason you went with Mr. Frizell?

 

A. He was the middle price guy . . . .

There appeared to be no nexus between King and Sea Home.

On Sea Home's motion for summary judgment, the judge had the benefit of an expert report prepared by plaintiff's expert Wayne Nolte, an engineer.

The expert opined that:

to a reasonable degree of engineering certainty, based upon a review of the documents as listed herein, that:

1. Edward King acted as the general contractor for work conducted at this Colts Neck property.

 

2. Sea Home Construction, Inc. subcontracted its work to Robert Frizell, Inc.

 

3. Edward King, the general contractor, had an agreement with Sea Home Construction, Inc. for certain work on his property.

 

4. Sea Home Construction, Inc. was a viable corporation on the date of this accident. Further it was listed on the Insurance Certificate issued to Mr. King.

 

5. The scaffold system provided to Mr. Wilkinson and Mr. Villa was not in a structurally sound condition.

6. The poles made up of double 2X4's did not have uniform attachment and proper splice.

 

7. The setup of the scaffold system allowed for too much dynamic movement that ultimately caused the components to separate and to fail. The swaying and separation explained by Mr. Villa happening only one or two seconds before the collapse was set up by the manner in which the scaffold system was erected. Further contributing to that was the lack of uniform support and adequate support of the scaffold system.

8. This scaffold system violated the OSHA Regulations for the construction, erection and use. These violations ultimately caused this accident.

9. The general contractor, Edward King, his subcontractor, Sea Home Construction, Inc. were ultimately responsible for compliance with the OSHA Regulations relating to the work performed by Mr. Wilkinson on this job site. Their failure to maintain a safe work site for Mr. Wilkinson resulted in this accident.

The report discussed the OSHA regulations for pump jack scaffolds. When a pump jack was made of wood two-by-fours spliced together, the regulations required that the poles be braced to the structure and mending plates installed at the splices. The wood should be free of "large loose or dead knots . . . which might impair strength," and the height of the wood poles could not exceed 30 feet. Fall protection systems in the form of guardrails or "personal arrest systems" were required. Nolte observed that the poles had been placed on the ground, rather than a "firm non-settling foundation," they had not been "placed vertical and parallel to the barn wall," and they were not braced or nailed properly. He said that the "presence of an angled pole, the lack of support by intermediate bracing and a non-structural, non-uniform, non-settling base all contributed to the movement of the poles and the ultimate failure of this scaffold."

In addition to his engineering conclusions regarding the scaffold structure, Nolte's report also focused on the status of Sea Home. Contrary to the deposition testimony offered by King and Bob and the documentary evidence of their relationship, Nolte concluded that King was the general contractor and had sub-contracted with Sea Home.

According to the expert, plaintiff "was employed by Robert Frizell, Inc. on this project." He then concluded:

Mr. King entered into two contracts; one with an architect and one with a builder to restore the barn. The architect was Michael Calafati . . . . Mr. King then retained the services of Sea Home Construction, Inc. and Robert Frizell to perform the work. Mr. King explained that Sea Home Construction, Inc. and Mr. Frizell was [sic] the "middle price guy" for the work.

Although the report does did not list the business entity status report on Sea Home among the list of materials that Nolte reviewed, the report states: "The Business Entity Status Report from the New Jersey State Business Gateway Service indicates that the business was not suspended until June 16, 2006. The subject accident occurred on October 22, 2003 at a time when Sea Home Construction, Inc. was a viable business."

With respect to Sea Home, Nolte's report noted:

It is evident that Sea Home Construction, Inc. was a viable corporation on the day of this accident and that it had hired Robert Frizell, Inc. to perform certain work at the King property. Further, Mr. King had Robert Frizell, Inc. do certain work at this site that included not only the work on the barn but also work on the house and the property through Sea Home Construction, Inc. It was Sea Home Construction Inc. dump truck with advertising on it that was present on the job site and that brought supplies to the site.

 

II.

 

A.

 

Frizell, Inc. argued that it was entitled to summary judgment in part because any common law negligence claim against it was barred by the workers' compensation exclusivity rule of N.J.S.A. 34:15-8. Plaintiff argued that the intentional act exception to the workers' compensation bar was applicable, because "Mr. Frizell knew with substantial certainty that failure to provide his employees with a safety harness and a guardrail would result in the type of injury plaintiff sustained."

In his initial decision, the judge denied Frizell, Inc.'s motion. Relying on the holding in Laidlow v. Hariton Machinery Co., Inc., 170 N.J. 602 (2002), the judge found that a jury question existed as to the first prong of the Laidlow analysis, called the conduct prong, which required that in order to overcome the workers' compensation bar "the employer must know that his actions are substantially certain to result in injury or death of the employee."

Although there was no evidence of "an intentional deception of OSHA" or that OSHA had communicated the existence of a violation that the employer had then ignored, the judge found that plaintiff was "a laborer type employee with limited or no experience in this particular type of job site and job . . . ." Bob had been in the construction business for decades. The provision of a safety harness was not "a particularly onerous, complex or costly purchase . . . ."

The second prong, which required that "the resulting injury and the circumstances of its infliction on the worker must be more than a fact of life of industrial employment and plainly [sic] anything the legislature intended the Workers' Compensation Act to immunize," presented an issue of law. The judge was unable to "find as a matter of law that this was plainly within what was contemplated by the legislature and the language in Laidlow says it's plainly beyond."

He found "that it's arguably beyond what was contemplated if one were to apply" the facts in the relevant cases. It was "common sense" that anyone working 30 feet off the ground "would want to take some kind of precaution . . . ." Given the existence of "a prior incident" and the lack of a safety harness, the absence of any evidence that OSHA had not inspected the site or put the employer on notice, or that the employer had disregarded that notice, could not "in and of itself" defeat plaintiff's claim. Thereafter, the judge granted Frizell Inc.'s motion to reconsider its decision. Frizell, Inc. had argued that the court's finding that the circumstances were "arguably beyond" what the Legislature contemplated was insufficient. The standard was "much higher than that" and it required that the circumstances "must be plainly beyond anything the Legislature contemplated, and that is why it has to violate the social contract."

Frizell, Inc. asserted that scaffoldings existed when the Legislature enacted the workers' compensation exclusivity bar in 1911, and there was "nothing to suggest that simply falling from a scaffold, or a collapsing scaffold . . . or not having fall protection wouldn't be something within" the Legislature's contemplation at the time. Plaintiff's status as a laborer rather than an experienced roofer did not establish that his injury was "beyond" the Legislature's contemplation.

Furthermore, there was "nothing in this case that would rise to the level of a violation of a social contract."

There was no deception by the employer, and the mere failure to provide a safety harness did not meet the standard for the context prong.

Frizell, Inc. also claimed that the "substantial certainty" standard was not met because that requires "a very heightened standard" that was "equivalent to a virtual certainty prong," and mere "appreciation of the risk" that a person could be injured if he or she fell from a scaffold, was insufficient. In addition, no part of the expert's report provided an opinion against Frizell, Inc.

The judge affirmed his prior holding that a fact issue existed for the "substantial certainty prong," which was the first prong; however, the judge agreed with Frizell, Inc. that he had erred because his previous finding was only that the circumstance were "arguably beyond" the Legislature's contemplation, rather than the "plainly beyond" standard established by Laidlow. He concluded that as a matter of law the context prong was not met, so the exclusivity bar of the workers' compensation statute immunized Frizell, Inc.

B.

Sea Home argued that it was entitled to dismissal of plaintiff's complaint because plaintiff had failed to establish a prima facie case of negligence against Sea Home. Plaintiff was unable to demonstrate that Sea Home had done any work on the job, that it had its own employees at the location or had supervised Frizell, Inc.'s employees, or that it had engaged in any activity that would give rise to any liability. Furthermore, when he had dismissed plaintiff's complaint against King, the judge had rejected the conclusion of plaintiff's expert that King had acted as the project's general contractor, because that "clearly . . . was an erroneous statement of the facts."

Sea Home argued in the alternative that, assuming it was involved in the project, plaintiff was barred from asserting his negligence action because he was an employee of Sea Home and workers' compensation provided his sole remedy. Sea Home argued that "plaintiff's own theories" were that "all of the things that caused this accident" were done by Bob acting for Frizell, Inc.

Plaintiff argued that a jury could find the Frizells' testimony was "inaccurate" and "incredible" because photographs showed Sea Home trucks on the site, plaintiff said he called 1-800-SEA-HOME to reach Bob's office, and the certificate of insurance showed that a workers' compensation policy had been issued for Frizell, Inc. and a general liability and auto policy for Sea Home. Plaintiff informed the judge, incorrectly, that the certificate showed "two different employer ID numbers for Robert Frizell, Inc. and for Sea-Home . . . [s]o clearly [Sea Home] had involvement . . . on this job." In fact, the certificate shows only two different policy numbers, one for liability and one for workers' compensation. There is no indication that the two entities had separate policies.

Regarding the issue of the workers' compensation bar, plaintiff asserted that there were "indicia of dual employment."

The judge found there was

a fact issue between Robert Frizell, Inc. versus Sea Home. Whether it's by inference a contract or a relationship, albeit never memorialized in a formal contract where Sea Home is a general contractor, that's clear there's nothing before me that says they were. The only argument of the plaintiff is somehow their being on the site establishes them or at least a fact issue that they're somehow a contractor on this site and bear some responsibility to what the plaintiff's expert alleges to be OSHA violations.

The judge said that plaintiff's argument was "a stretch" but the issue "depend[ed] on the credibility of the Frizells or lack thereof and their unresponsive answers . . . or at least inconsistent answers." Linda's deposition testimony showed "glaring inconsistencies in numerous instances," although they were "not necessarily . . . associated with the nature of this job." The judge concluded that there was an issue of "whether there was a contract with Sea Home" and "if, so, what was the nature of that arrangement and contract."

The judge further concluded that the presence of the Sea Home truck and "having the 1-800 number where the injured party calls and it's Sea Home's number" made it "clear that the entity was in existence at the time, contrary directly to what [Linda] said." In addition, the report from plaintiff's expert "establishe[d] various entities with liability based on the overall contract." The judge did not explain this conclusion, especially in view of his previous decision that rejected Nolte's assertions that King had been the general contractor on the project. The judge also made no findings or conclusions regarding Sea Home's alternative argument that plaintiff's complaint was barred because, if Sea Home was on the site, then it was there as plaintiff's employer, and his claim was barred by the workers' compensation rule.

On a motion for reconsideration, the judge commented on plaintiff's cause of action against Sea Home, stating that "plaintiff's cause of action, for want of a better word, against the Sea Home Construction, Inc. on the fact with the record close to being closed is indeed a weak case -- farce, I've used the term . . . ." He asked how plaintiff would prove his negligence claim against Sea Home. Counsel responded that she would rely on Linda's lack of credibility, plaintiff's testimony that a Sea Home truck was on the site, and Nolte's opinion "that Sea Home had responsibility on this job according to" plaintiff's testimony.

Sea Home moved to preclude the opinion of plaintiff's expert Wayne Nolte that Sea Home was a subcontractor on the site, and that it was responsible for ensuring compliance with OSHA regulations.5 The motion was denied.

Trial proceeded against Sea Home as plaintiff's claim against Frizell, Inc. was limited to the workers' compensation remedy. The jury found in plaintiff's favor and awarded him $450,000 for pain and suffering, $472,285.75 for past medical expenses, and $97,085 in lost wages. It awarded nothing to Deborah on her per quod claim.

Sea Home's motions for judgment notwithstanding the verdict and a new trial were denied. The judge molded the verdict and entered judgment against Sea Home in the amount of $880,127.88, including pre-judgment interest of $93,308.17.

III.

Sea Home appealed the jury verdict, and plaintiff appealed from the decision to dismiss the claims against Frizell, Inc.

On his appeal, plaintiff asserts that the judge erred in granting summary judgment to Frizell, Inc. and limiting plaintiff's remedy to recovery under the Workers' Compensation Act. We address first that issue.

Plaintiff argues that the court's initial decision properly found that the context of this accident was "plainly beyond" the type of accident contemplated by the Legislature such that it fell within the intentional wrongdoing exception of the Worker's Compensation Act.

Frizell, Inc. responds that the trial court's decision regarding the context of the accident was correct but that, even if we find it was not, the decision should be affirmed for an alternative reason. Frizell, Inc. argues that plaintiff still could not establish the other prong (the conduct prong) of the test necessary to proceed with his negligence claim, because the trial judge erred when he found that there was a jury question regarding whether Frizell, Inc. had acted with the substantial certainty that plaintiff would be injured.

The Act affords statutorily scheduled compensation to an employee who is injured by an accident that arises out of and in the course of his or her employment, when the employer's actual or imputed negligence is the proximate cause of the accident. N.J.S.A. 34:15-1; N.J.S.A. 34:15-12; Outland v. Monmouth-Ocean Educ. Serv. Comm'n, 154 N.J. 531, 545 (1998) (Handler, J., dissenting). The Act provides covered employees with an exclusive remedy against an employer's negligence, unless the employee can establish the injury was caused by intentional wrongdoing on the part of the employer. N.J.S.A.34:15-8; Millison v. E. I. Du Pont de Nemours & Co., 101 N.J.161, 169 (1985). In its "intentional wrong" exception to the exclusivity rule, the Act provides:

If an injury or death is compensable under this article, a person shall not be liable to anyone at common law or otherwise on account of such injury or death for any act or omission occurring while such person was in the same employ as the person injured or killed, except for intentional wrong.

[N.J.S.A. 34:15-8.]

Because the Act contemplates that as many work-related injury claims as possible should be administered within its statutory scheme, and because virtually all instances of employee injury result from an intentional act by the employer, the "intentional wrong" exception has been circumscribed so as not to entirely consume the exclusivity goal of the Act. Millison, supra, 101 N.J. at 177-78. Negligent, reckless, or even wanton conduct will not suffice to overcome the exclusivity bar. Id. at 177. Nor is "'mere knowledge and appreciation'" of a risk to be equated with "'intent.'" Ibid. (quoting W. Prosser and W. Keeton, The Law of Torts, 8 at 36 (5th ed. 1984)). The Act's statutory framework "is not circumvented simply because a known risk later blossoms into reality." Id. at 178. Instead, the law "must demand a virtual certainty." Ibid.

The exception recognizes that certain intentional conduct is neither a natural risk of the employment nor does it arise out of it, and so is not encompassed within the statutory workers' compensation "bargain." Laidlow, supra, 170 N.J. at 606. An employer will lose the cloak of immunity afforded by N.J.S.A. 34:15-8 if two conditions are satisfied:

(1) the employer must know that his actions are substantially certain to result in injury or death to the employee, and (2) the resulting injury and the circumstances of its infliction on the worker must be (a) more than a fact of life of industrial employment and (b) plainly beyond anything the Legislature intended the Workers' Compensation Act to immunize.

[Id. at 617.]

The first prong is known as the "substantial certainty," or "conduct," prong. Id. at 622; Mull v. Zeta Consumer Prods., 176 N.J. 385, 391 (2003). The second is generally called the "context" prong. Ibid. Both prongs must be satisfied for a plaintiff to proceed with a common law claim against an otherwise immune employer. Laidlow, supra, 170 N.J. at 622.

When an employer seeks, on summary judgment, to preclude an employee's common law claim under the intentional wrong exception, a trial court's first inquiry

is whether, when viewed in a light most favorable to the employee, the evidence could lead a jury to conclude that the employer acted with knowledge that it was substantially certain that a worker would suffer injury. If that question is answered affirmatively, the trial court must then determine whether, if the employee's allegations are proved, they constitute a simple fact of industrial life or are outside the purview of the conditions the Legislature could have intended to immunize under the Workers' Compensation bar.

 

[Id. at 623.]

The determination of whether the second, or context, prong, has been met "is solely a judicial function." Ibid. If the trial court has determined that there is a jury question on the first prong regarding the "substantial certainty" of the employer's conduct, and if it also has concluded that the employee's allegations, if proved, would meet the context prong, then the court should deny the employer's motion for summary judgment. Ibid.

Here, the trial judge determined there was a jury question on the conduct prong. However, on reconsideration, he concluded that the circumstances of this accident were not "plainly beyond" anything the Legislature intended to immunize.

The context prong examines whether the employer's conduct "violates the social contract so thoroughly . . . the Legislature would never expect it to fall within the Worker's Compensation bar." Id. at 622. Each case must be determined upon "the totality of the facts contained in the record . . . ." Id. at 623.

Plaintiff contends that the court applied an incorrect legal standard when it granted Frizell, Inc.'s motion for summary judgment. He argues that the trial judge properly applied the "plainly beyond" standard for the context prong when it first denied Frizell, Inc.'s motion, and his use of the terminology "arguably beyond" was merely a matter of semantics that did not vitiate that decision. Plaintiff asserts that "[t]he use of old, poorly constructed 40-foot vertical poles and the refusal to provide a proper safety harness or safety rail is not conduct the Legislature intended to constitute a part of everyday construction life," and demonstrated that Frizell Inc.'s actions "violated the social contract so thoroughly that the Legislature would never expect it to fall with [sic] the Workers' Compensation bar."

Plaintiff's argument misstates the facts as he submitted them on the summary judgment motion. First, Nolte's report said that OSHA regulations require that wood poles used for a pump jack system must not exceed 30 feet in height. Plaintiff estimated in his deposition that the system they constructed was 25 to 30 feet height, not the impermissible 40 feet that he asserts in his brief. Second, plaintiff never indicated that Bob refused to provide a safety rail or refused to allow him to install one. Third, plaintiff relies in part on the use of "old" wooden poles as evidence that the method of construction violated the social contract, but no part of Nolte's report found that the age of the wood was a factor in the collapse.

In addition, contrary to plaintiff's assertion that the judge's initial use of the term "arguably beyond" was an issue of "semantics," the language in the court's original decision with respect to the context prong evidenced actual confusion regarding the proper standard. The court relied on the "common sense" notion that anyone working that high off the ground would want to take precautions, and focused on the fact that the absence of a prior OSHA violation could not "in and of itself" defeat plaintiff's claim.

That analysis, which focused on why the claim should not be excluded rather than why it should proceed, employed a standard opposite to the Act's intent to treat the intentional wrong concept as an exception and to encompass as many claims as possible within the Act. Moreover, as the judge later correctly found, the context of this accident did not rise to the level that courts have found to be "plainly beyond" the social contract.

A number of cases demonstrate the circumstances and resulting injury necessary to establish the exception rather than the Legislature intent to immunize under the Act's compensation provisions. All are distinguishable.

First, to repeat plaintiff's contentions, plaintiff indicated that, when the poles snapped as they attempted to construct the scaffold, he had complained that the wood was old and brittle, but that Bob told him to use it anyway, rather than buy new wood. He also said that Bob refused his request for a safety harness. Plaintiff's expert said the scaffold had not been constructed in accordance with OSHA standards.

Without more, neither the removal of a safety device from equipment or machinery, nor the commitment of any other violation of OSHA regulations, will establish a prima facie case that an employer's conduct meets the standard for an intentional wrong within the meaning of N.J.S.A. 34:15-8. Laidlow, supra, 170 N.J. at 622-23; Fisher v. Sears, Roebuck & Co., 363 N.J. Super. 457, 470 (App. Div. 2003), certif. denied, 179 N.J. 310 (2004); Mabee v. Borden, Inc., 316 N.J. Super. 218, 230-31 (App. Div. 1998); Marinelli v. Mitts & Merrill, 303 N.J. Super. 61, 71-73 (App. Div. 1997).

The context prong may be satisfied when the employer's removal of a safety device for purposes of profit and production created the substantial certainty of injury, and the employer also "deliberately and systematically deceive[d] OSHA into believing that the machine [wa]s guarded . . . ." Laidlow, supra, 170 N.J. at 622. In Laidlow, an employee's hand was crushed and de-gloved when it became caught against a mill's rollers at his workplace. Id. at 606-07. Although the device had a safety guard, it was always "tied up." Id. at 608. The device was engaged into its proper position only when OSHA inspectors visited the plant. Ibid.

In Millison, supra, 101 N.J. at 178-83, the Court also distinguished an employer's knowledge of risk and the resulting harm from its active deception that aggravated the harm. The plaintiffs were employees who became ill as a result of exposure to asbestos at the plants in which they worked. Id. at 166. They alleged that their employer and its physicians intentionally concealed from them their knowledge of the dangers of asbestos exposure, and that their company's physical examinations had revealed abnormalities that evidenced the existence of asbestos-related diseases. Id. at 168-69.

With respect to the context prong, the Court found that the plaintiffs' occupational diseases "must be considered the type of hazard of employment that the legislature anticipated would be compensable" within the normal framework of the Act. Id. at 179. However, an employer's intentionally deceitful concealment of diseases that an employee has already developed "is not one of the risks an employee should have to assume." Id. at 182.

In Crippen v. Central Jersey Concrete Pipe Co., 176 N.J. 397, 411 (2003), the Court also cited the employer's deception as a basis for its finding that the plaintiff had established the context prong. The employee suffocated when he fell into a sand hopper. Id. at 400. In January 1997, OSHA had cited the employer for violations that it categorized as "serious," which meant the conditions created a "substantial probability" of death or serious harm. Id. at 401-03. The employer's safety manager submitted a compliance-abatement plan to OSHA that represented the plan would be implemented by March 1997, over a year before the plaintiff's accident. Id. at 412. However, the plan was never implemented, and the employer failed to abate many of the hazardous conditions cited by OSHA. Id. at 403.

In a case decided the same day as Crippen, the Court rejected the principle that deception on an employer's part is required to establish an intentional wrong, or that a lack of deception compels the conclusion that no intentional wrong occurred. Mull, supra, 176 N.J. at 392-93. There the plaintiff was injured when a winding machine she was working on suddenly restarted after she had shut it off to clear a jam of the plastic bags that were being wound onto a spool. Id. at 387-88.

OSHA had cited the employer several months before for failing to provide its employees with "lockout/tagout" procedures that could control the release of energy from a machine that was being serviced or repaired. Id. at 388. Another employee had been injured on the same machine, and employees' expressions of concern regarding the machine's safety had been ignored. Id. at 389. In addition, a report by the plaintiff's expert offered that the employer had altered the machine's original design to enhance productivity, including the removal of a safety interlock switch and modification of the controls to allow the winder to start automatically without operator intervention, and that the resulting "'hazardous operating conditions' created a 'virtual certainty' of injury to the machine's operators." Id. at 388-89.

The Court found that the context prong had been satisfied by the totality of factors. Id. at 392-93. "The Legislature would not have considered the removal of the winder's safety devices, coupled with the employer's alleged knowledge of the machine's dangerous condition due to prior accidents and employee complaints, in addition to OSHA's prior violation notices, 'to constitute simple facts of industrial life.'" Ibid. (quoting Laidlow, supra, 170 N.J. at 622).

However, courts generally have been reluctant, outside the industrial manufacturing setting, to find circumstances that satisfied the intentional wrong standard. Fisher, supra, 363 N.J. Super. at 470. As we observed, such cases "lack[] the 'exclusive control' element inherent in the use of industrial production machinery." Id. at 471.

For example, in a case decided concurrently with Crippen and Mull, the Court affirmed our decision that an employee, injured when using a snow blowing machine, was unable to assert a common law claim against his employer based on the allegation that the employer's disabling of machine's safety lever to remove snow more quickly constituted an intentional wrong. Tomeo v. Thomas Whitesell Constr. Co., 176 N.J. 366, 367 (2003). The Court cited our holding that "there was no evidence suggesting defendant acted in a manner inconsistent with what is part and parcel of the workplace" and, furthermore, the facts contained no evidence of "the deception and blatant disregard for the plaintiff's well-being" present in cases where the intentional wrong standard had been met. Id. at 374. There was no expert testimony that the employer knew with virtual certainty that an employee would be injured when using the snow blower with the device disabled. Ibid.

Two cases, Fisher, supra, 363 N.J. Super. at 462-72, and McGovern v. Resorts Int'l Hotel, Inc., 306 N.J. Super. 174, 176-81 (App. Div. 1997), found no intentional wrong when two employees were shot, one fatally, when transporting the employer's cash, even though the employers had not implemented their own recommended safety policies for such situations. In Kibler v. Roxbury Board of Education, 392 N.J. Super. 45, 55-57 (App. Div.), certif. denied, 192 N.J. 292 (2007), we found that a schoolteacher's claim based on her injuries by a student involved in an altercation failed to establish the context prong, even though the school was aware of the boy's behavioral problems. Teachers' supervision of students often involves non-pedagogical aspects and the invariable prospect that student-on-student altercations will develop. Id. at 55.

More recently in Van Dunk, Sr. v. Reckson Associates Realty Corp., 415 N.J. Super. 490 (App. Div. 2010), certif. granted, 205 N.J. 81 (2011), we reversed a trial court's decision to grant summary judgment to the employer on the conduct and context prongs. The employee was injured when a trench in which he was working caved in and buried him to his chest. Id. at 495. A subsequent OSHA investigation resulted in a $49,000 fine to the employer for a "willful" violation of OSHA regulations. Ibid.

The project required the excavation and construction of an 18 to 20-foot-deep trench so that a sump could be moved, before the rest of the project could advance. Id. at 494. But the site had experienced "torrential rain" that impeded construction of the trench. Id. at 493. Glenn Key, the project's superintendent, had initially rebuffed plaintiff's offer to enter the trench to assist in its construction, because Key could see water seepage and cracking, and he was concerned the trench could fail. After a continued lack of success, Key directed the plaintiff to enter the trench, which collapsed around him less than five minutes later. Id. 494-95.

Key had had formal training in OSHA's requirements for trench conditions. But he had not utilized a "trench box" or "sloping" that could have made the trench more stable. Id. at 495.

Regarding the conduct prong, we recognized that the case was a "close" one. Id. at 503. No safety device had been removed, but we found the "non-use of the 'trench box'" to be "somewhat analogous." Ibid. There was no deception of OSHA and no prior events that involved similar risks. Ibid. Key's initial efforts to prevent the plaintiff from entering the trench, because he understood the risks, "perhaps . . . made his ultimate decision more 'knowing' and 'willful'" than other precedential cases. Ibid. It rendered his decision "certainly one which could be viewed by a reasonable jury as involving a 'substantial certainty' of death or injury." Ibid. Moreover, because of pressure to move the trench before it rained again, plaintiff's safety was disregarded for the employer's profit and productivity, similar to Laidlow, Crippen and Mull. Ibid.

We acknowledged the "dangerous nature" of construction sites, but we noted that the Legislature would not have "sanctioned" the context of this accident, where an employee was allowed "to enter an unstable trench" with no protective device, "coupled with the employer's knowledge that the trench was unstable and could fail at any moment." Id. at 504-05. The trial court's decision had failed to "give significant credit to the OSHA violation or the fact that defendant could have made the trench more stable if it had used protective devices." Ibid.

Here, the trial court correctly found that the context of the accident was not beyond the contemplation of the Legislature when it enacted the Act. There was no deception involved, either of OSHA or plaintiff. Although OSHA was notified, it declined to investigate and issued no penalty to defendant, which contrasts with the $49,000 fine it imposed on the employer in Van Dunk.

In contrast to those cases where the employee's injury was caused by the employer's affirmative action in dismantling safety devices that would have prevented the machine's harmful action, Bob's denial of plaintiff's request for a safety harness did not cause the accident. Nor did Bob preclude plaintiff from using a rope as a harness or from installing a guardrail, which Bob said was the responsibility of the person working on the scaffold.

Although plaintiff complained about the age of the wood, and Bob told him to use it anyway, nothing presented suggested that the scaffold collapsed because the wood was too old. The use of the wood poles clearly violated OSHA regulations for scaffold construction. Plaintiff's expert said the scaffold collapsed because its poor construction allowed "too much dynamic movement that ultimately caused the components to separate and to fail."

Furthermore, unlike the supervisor in Van Dunk, who was fully aware of the treacherous conditions, there is no indication that Bob believed that the scaffold was constructed improperly or that it "could fail at any moment" like the trench. According to plaintiff, Bob had worked on the same scaffold himself for a week, and Bob had constructed scaffolds many times using the same methods.

As Frizell, Inc. noted, scaffolds are basic construction equipment that have been used for hundreds, if not thousands of years. Certainly the possibility of a scaffold collapse was within the contemplation of the Legislature when it enacted the Act to ensure that workers received timely and certain compensation in exchange for relinquishment of their common law rights to sue. The trial court correctly determined that an injury caused from a poorly constructed scaffold cannot be said to have "violate[d] the social contract so thoroughly . . . that the Legislature would never expect it to fall within the Worker's Compensation bar." Laidlow, supra, 170 N.J. at 622.

In determining a motion for summary judgment, the judge must determine whether, when the evidence is viewed in the light most favorable to the non-moving party, a rational factfinder could resolve an alleged disputed issue of fact in that party's favor. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). We apply the same standard on review. Shaler v. Toms River Obstetrics & Gynecology Assocs., 383 N.J. Super. 650, 656 (App. Div.), certif. denied, 187 N.J. 82 (2006).

Even accepting plaintiff's version of the facts as true, there was nothing to suggest that Bob was substantially certain that the scaffold would collapse and one of his employees would be injured. This was the same scaffolding system that was utilized by Bob and Villa when plaintiff was on vacation. In contrast to employers who disengaged safety devices on machines used by their employees, required their employees to perform dangerous tasks, or hid the workers' risks from them, Bob had worked on the scaffold in the same condition and under the same circumstances as plaintiff.

The undisputed fact that Bob had worked on the scaffold himself negates any finding that he knew that his method of constructing it was substantially certain to result in death or injury. Moreover, unlike other cases where the experts found the conditions created a virtual certainty of injury, plaintiff's expert offered no such opinion.

The trial court's decision on the conduct prong was based, in part, on its finding that plaintiff was a laborer with limited or no experience in the "particular type of job site and job." That finding was contrary to plaintiff's testimony that he knew from previous jobs how to do the many different tasks involved in the barn restoration, and he regularly engaged in a wide variety of tasks that were skilled or semi-skilled, in addition to basic labor.

We reject plaintiff's argument that the trial judge erred when determining that the circumstances of his accident were not plainly beyond anything the Legislature contemplated when it instituted the workers' compensation bar. The judge properly found that plaintiff had failed to establish the context prong

of the intentional wrongdoing exception. We conclude that plaintiff failed to establish a jury question regarding the conduct prong and whether Frizell, Inc. knew that its actions were substantially certain to result in injury or death to one of its employees.

IV.

We now address the issues raised on Sea Home's appeal of the denial of its motion for summary judgment.

Sea Home asserts that the trial judge's denial of its motion for summary judgment was erroneous because: there was no genuine issue of material fact to suggest that Sea Home was involved with the King barn renovation and owed a duty to plaintiff; the trial judge improperly relied on Nolte's opinion regarding Sea Home's status, which was a net opinion; and, even if Sea Home was involved in the project, plaintiff's claim was barred by the Act because, at best, the only evidence was that plaintiff was jointly employed by Sea Home and Frizell Inc.

To establish a claim of negligence, a plaintiff must prove a duty of care was owed by the defendant, the defendant breached that duty, and that the breach proximately caused damage to the plaintiff. Polzo v. Cnty. of Essex, 196 N.J. 569, 584 (2008). The issue of whether a defendant owed a duty of care to the plaintiff is a question of fairness and policy that rests on many factors. Carvalho v. Toll Bros. & Developers, 143 N.J. 565, 572 (1996). The factors include "the relationship between the parties, the nature of the attendant risk, a defendant's ability and opportunity to exercise reasonable care, and the public interest . . . ." Jerkins v. Anderson, 191 N.J. 285, 293 (2007).

Sea Home argues that plaintiff failed to establish that it owed any duty to plaintiff, because there was no evidence that Sea Home or its employees had any involvement with the King project. The determination of whether a duty exists is a question of law that must be decided by a court, not a jury. Id. at 294; Carvalho, supra, 143 N.J. at 572; Wang v. Allstate Ins. Co., 125 N.J. 2, 15 (1991).

The judge never rendered a legal determination on the issue of whether the parties had any relationship that gave rise to a duty of care. Instead, he focused solely on whether there were any factual disputes regarding the nature of that relationship. Sea Home is correct that, in doing so, the judge misapplied the summary judgment standard, and he erred when he found material issues of fact.

As the New Jersey Supreme Court explained in Brill, supra, 142 N.J. at 530 (quoting Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 75 (1954)), genuine issues of material fact preclude a grant of summary judgment, while issues of fact that are "'of an insubstantial nature' do not." Here, the credibility issues that the judge found had created an issue of fact for the jury were insubstantial and irrelevant.

First, there is no support for the judge's conclusion that the issue of whether a duty existed depended on the Frizells' credibility. There was ample documentary evidence available to plaintiff on the issues of whether Sea Home existed as a viable corporation at the time of plaintiff's accident and its role in the King barn restoration, including the parties' contract, the existence or absence of tax returns, bank accounts, W-2 records, quarterly wage reports to the Division of Revenue, vehicle registrations and annual reports.

The existence of the corporation was an objectively verifiable fact, unrelated to the Frizells' credibility. Plaintiff made no claim that the Frizells had refused to disclose bank records, quarterly wage reports or vehicle registrations that plaintiff had requested in discovery. That plaintiff chose not to pursue discovery of the documents that might have contradicted his own claims did not render the documentary unavailable or irrelevant. Nor did it render the Frizells' testimony the critical evidence on the issue, where there was no suggestion that the Frizells concealed or obstructed plaintiff's efforts to obtain the documentary evidence that would support his claim of Sea Home's existence and involvement in the project. The Frizells could not produce evidence that did not exist.

Second, the record does not support the characterization of the Frizells, asserted by plaintiff, as obstructive and incredible in their depositions. Bob was not the office manager, and there was nothing obstructive about his deferring to Linda, who fulfilled that role. Moreover, the only obvious inconsistency in Linda's deposition testimony was her statement that they had stopped using the 1-800-SEA-HOME, when it clearly appeared in photos of the dump truck.

A telephone number's alphabetical configuration is scant proof of a corporate entity's actual existence, or its legal responsibility on a particular project. Contrary to the judge's finding, the mere configuration of telephone numbers that spelled the name "Sea Home" did not make it "clear that the entity was in existence at the time." As the trial judge observed, those inconsistencies were "not necessarily . . . associated with the nature of this job" and the issue of "whether there was a contract with Sea-Home," and "if, so, what was the nature of that arrangement and contract."

Linda's response regarding the insurance was neither obstructive nor incredible. She described the certificate of insurance as a routine task to which she gave little thought. Her testimony that her husband negotiated the insurance, while she paid the bills and obtained the certificates at his direction, was consistent with her role as office manager. There was nothing remarkable in any of these assertions and no indication that she was intentionally misleading or withholding information. There was no basis for the judge's finding that they created a credibility issue. Moreover, absent any indication that the truck continued to be registered to Sea Home or that Sea Home paid the insurance bills, there was nothing incredible in Linda's assertion that she had ignored the continued presence of the Sea Home name on the certificate after she requested its removal.

Furthermore, when Linda told plaintiff's counsel at her deposition that she had filed taxes for Sea Home only in 1996 and 1997, plaintiff's counsel never asked Linda to produce Sea Home's tax returns or to authorize their release. At no point in the litigation did plaintiff produce any documents that contradicted Linda's claim that those were the only two years in which Sea Home filed taxes, or that established that Sea Home had generated revenue the year plaintiff was injured or any other years. To the extent that the Frizells' testimony contradicted each other, those contradictions were minor and irrelevant to the question of whether Sea Home existed and, more importantly, whether it participated in this project and owed a duty to plaintiff.

Third, although Sea Home's name was on the insurance documents, the certificate did not show that Sea Home and Frizell, Inc. existed at the time as separate legal entities. The certificate shows different policy numbers, not different employer IDs.

Plaintiff presented no other evidence that Sea Home existed as a viable corporation at the time of plaintiff's accident or that, if it did, it had any role in the project. The documents from the State pertained only to prior years. There was no dispute that all of plaintiff's wages were paid by Frizell, Inc. and not Sea Home. Plaintiff submitted no tax returns of Sea Home, no evidence that Sea Home maintained any bank account, no social security wage reports, no W-2s for other employees, and no evidence from the Department of Motor Vehicles that the dump truck with the 1-800-SEA-HOME number was registered to Sea Home.

Plaintiff's unsupported personal belief that the King project must have been under Sea Home, rather than Frizell, Inc., provided no basis for a legal conclusion that Sea Home participated in the project and that it owed a duty to plaintiff. King said he had never heard of the company, and it was not a party to the contract, which placed the sole responsibility for safety and employee supervision with Frizell, Inc.

Plaintiff claimed Bob picked up materials in what plaintiff called "the Sea Home dump truck" and that he drove it for short intervals when Bob was paving the King's driveway. That was plaintiff's characterization of the truck based on the telephone number painted on it and plaintiff's prior experience as a Sea Home employee before he went to work elsewhere. Plaintiff's testimony that Bob bought new trucks some time between 1997 to 2000 and that he did not put Sea Home stickers on those trucks supported Bob and Linda's claims that they had disbanded the company at approximately that time.

The only evidence that contradicted the Frizells' claim that they disbanded the company in 1997 or 1998 were: the New Jersey Division of Revenue report that showed that 2002 was the last year that Sea Home had filed an annual report, Sea Home's name on the insurance certificate, and the telephone number on the dump truck. In the absence of any other evidence that Sea Home existed at the time of plaintiff's accident, that it obtained any revenue from the King project, or that there was a contract between King and Sea Home, this evidence was insufficient to allow the judge to conclude that Sea Home was a subcontractor of the project or that it owed any duty to plaintiff.

Fourth, Sea Home also is correct that the court erred when it determined that there were genuine issues of material fact based in part on Nolte's conclusions that Sea Home was a viable corporation that had a duty to plaintiff. We conclude that this portion of Nolte's report was a net opinion. Sea Home did not move to exclude Nolte's report as a net opinion until after the summary judgment motion was decided. However, it raised the argument during its motion for reconsideration. A judge reviewing a summary judgment motion may properly consider whether the expert opinion on which a party relies to defeat summary judgment is a net opinion, because that determination delineates the weight the report is to be afforded. Polzo, supra, 196 N.J. at 584 n.5.

As Sea Home correctly argues, Nolte's conclusions regarding Sea Home's status and its involvement in the project had no factual basis. We adhere to the basic principle that "an expert's opinion is only as strong as the facts on which it rests." State v. M.J.K., 369 N.J. Super. 532, 550 (App. Div.), certif. granted, 181 N.J. 549 (2004), dismissed, 187 N.J. 74 (2005). Nolte's report states that plaintiff was employed by Frizell Inc. at the time of the accident, and he provided no factual basis for his conclusion that Sea Home had any liability. He never examined the parties' contract, Bob's deposition, or any documents regarding Sea Home's status. Nolte's conclusion that King retained Sea Home to perform the work is contradicted by King's testimony and the terms of his contract and is contrary to Nolte's acknowledgment that plaintiff was employed by Frizell, Inc.

Moreover, although Nolte relies on the business status report's statement that the business was not suspended until 2006, the report also states that the company was suspended precisely because it had failed to file a report for over two years, and 2002 was the last year it did so.

A trial court's decision on a summary judgment motion must be based on competent evidence. Brill, supra, 142 N.J. at 540. Nolte offered no competent evidence to support his conclusions on Sea Home's status or its liability. Nolte had no qualifications to offer an opinion on Sea Home's business status or its liability. A predicate for the admission of expert testimony is that the witness have sufficient expertise in the field. DeHanes v. Rothman, 158 N.J. 90, 100 (1999). The expert must possess more than the minimal knowledge of the field in which he or she purports to offer an expert opinion. M.J.K., supra, 369 N.J. Super. at 550.

An expert's "role is to contribute the insight of his specialty." In re Hyett, 61 N.J. 518, 531 (1972). An opinion offered by an expert in an area beyond his or her expertise is admissible only as a lay opinion. State v. Jamerson, 153 N.J. 318, 336-41 (1998). Moreover, even when offered by an expert, any such lay opinion is restricted to conclusions rationally based on the witness's actual perceptions. N.J.R.E. 701; Jamerson, supra, 153 N.J. at 340.

Nolte was an engineer. The focus of his report was to determine why the scaffold collapsed. Nothing in the record suggests he had any experience or expertise in corporate structures or business affairs of any kind. He was unqualified to offer an expert opinion on whether Sea Home was a viable entity that had any liability to plaintiff. Nor was he qualified to offer a lay opinion here, because his conclusions clearly were not based on his perceptions. Instead, they were based on limited evidence from which he drew unsupported factual conclusions.

Finally, the trial judge's own characterization of plaintiff's claim against Sea Home as "a farce" contradicted his holding that plaintiff had presented a prima facie case of negligence against Sea Home. Courts must take care that a summary judgment ruling does not preclude a deserving litigant from the opportunity to have his or her case fully considered by a factfinder. Brill, supra, 142 N.J. at 540. However, at the same time, causes of action should not be allowed to survive merely because there is any disputed issue of fact. Id. at 541.

The trial judge erred when he found there were material issues of fact regarding whether Sea Home owed a duty to plaintiff. As a matter of law, Sea Home owed no duty to plaintiff because it had no involvement in the King barn renovation.

Sea Home was entitled to summary judgment since it owed no duty to plaintiff. Therefore, we need not address the issue of plaintiff's alleged dual employer with Frizell, Inc. and Sea Home and whether any claim would be precluded by the Act.

We conclude that the judge correctly held that the action against Frizell, Inc. was barred by the Act. We also conclude that the judge erred by concluding that Sea Home had a duty to plaintiff.

As to the appeal in A-3884-08T3, we affirm; as to the appeal in A-3848-08T3, we reverse the denial of the motion for summary judgment as to Sea Home and remand for further proceedings consistent with this opinion. We do not retain jurisdiction.

 

1 Plaintiff's wife, Deborah Wilkinson asserted a per quod claim. All references to plaintiff shall refer to Arthur Wilkinson.

2 Different judges ruled on the motions under review. In addition, since the appeals address issues raised before trial, we do not relate facts that were adduced at trial except where noted. We do not distinguish between the judges.

3 Robert Frizell was known as "Bob," and he is referred by that name to distinguish him from his namesake corporation. In addition, for ease of reference, we refer to Linda Frizell as Linda.

4 Plaintiff's cousin Mike Klein had been Frizell's foreman but left in 2002.

5 Sea Home never challenged the admissibility of Nolte's opinion regarding the engineering basis for the scaffold collapse. The only issue was whether the court should have relied on his conclusions regarding Sea Home's status and its liability.