LIBERIO NANGUELU v. EDISON W. NAZARIO RODRIGUEZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

LIBERIO NANGUELU and MANUEL JUAREZ

LOPEZ and CONCEPCION FERNANDES,

his wife, per quod,

Plaintiffs-Appellants,

v.

EDISON W. NAZARIO RODRIGUEZ and

MARK LUEBCKE,

Defendants,

and

PRO BUILT CONSTRUCTION, LLC, and

COUNTRY CLASSICS,

Defendants-Respondents.

May 7, 2014

Argued February 25, 2014 Decided

Before Judges Reisner and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-1085-11.

Gary A. Cavalli argued the cause for appellants (Garces & Grabler, P.C., attorneys; David M. Wasserman and Mr. Cavalli, on the briefs).

David J. Bloch argued the cause for respondents (Farber Brocks & Zane, LLP, attorneys; Mr. Bloch, on the brief).

PER CURIAM

Plaintiffs Liberio Nanguelu, Manuel Juarez Lopez, and Concepcion Fernandez, Lopez's wife, appeal the February 8, 2013 grant of summary judgment dismissing their personal injury complaint against defendant Pro Built Construction, LLC.1 Plaintiffs also appeal the May 3, 2013 grant of summary judgment to defendant Country Classics. We affirm.

We summarize the circumstances as set forth in the statement of material facts relied upon by Assignment Judge Yolanda Ciccone, including plaintiffs'2 and Luebcke's depositions. Country Classics, the owner and general contractor for a residential project, hired Pro Built to complete the framing and related work. Pro Built in turn contracted with plaintiffs' employer, Edison Nazario Rodriguez. The agreement between Country Classics and Pro Built required compliance with OSHA standards, as did the contract between Pro Built and Rodriguez.

On April 6, 2010, in approximately ten to twenty-five minutes, plaintiffs constructed a scaffold in order to access an unfinished balcony. At some point within half an hour to an hour-and-a-half after plaintiffs had been working from the scaffold, it collapsed, causing them injuries. Lopez had previously built a scaffold to work on a balcony on a similar house further down the street; Nanguelu had not.

When deposed, Luebcke stated that the morning of the accident he went to the job site because Lopez had asked him to check the alignment of a roof with an adjourning wall. Luebcke parked his truck, removing a ladder so he could verify the roof projection. Although conscious that the "scaffolding was up" and that the balcony was almost complete, he noticed neither the men on the scaffolding or anything at all about it as he was focused on the task he needed to complete. After checking the roof line, he went back to the truck. As he was retrieving tools, he looked up as a man ran across the street towards the site. Luebcke turned and saw plaintiffs on the ground. He paid no attention to the condition of the scaffolding at that moment because he was concerned about the men. Luebcke also said that, "after the fact," he observed that the scaffold had been built without a vertical element, which he believed caused the collapse. He later spoke to plaintiffs, and Lopez insisted that he had built this scaffold in the same manner as the scaffolding on the house down the street, which had not collapsed as the men worked on the balcony. Luebcke speculated that Lopez "just forgot to put the uprights on."

Neither defendant supervised plaintiffs' on-the-job performance, provided them with tools or equipment, or had any knowledge of either the construction or design of the scaffold. Relying upon Alloway v. Bradlees, Inc., 157 N.J. 221 (1999), Judge Ciccone granted the motion as to Pro Built because the injuries were not foreseeable, as Pro Built had no involvement in the scaffold construction. Plaintiffs built the scaffold shortly before their fall. "In contrast, in Alloway," the general contractor had personal knowledge of the dangerous condition. Additionally, Pro Built and the subcontractor had a written contract, however, Pro Built did not direct the use of the scaffolding. Pro Built had no actual or constructive notice of any risk of harm. As the judge said, "the scaffold was constructed quickly and the accident followed thereafter very quickly." In Judge Ciccone's opinion, the alleged OSHA violations were irrelevant to her determination of whether there was a duty of care. She denied the motion as to Country Classics without prejudice, however, extending discovery for an additional thirty days.

While rendering her decision on Country Classics' second motion for summary judgment, again in reliance on Alloway, Judge Ciccone reiterated that "[p]laintiffs were the ones who constructed the scaffold from which they fell." Country Classics had no involvement in the construction of the scaffold or actual or constructive notice of the dangerous condition; therefore, it could not be held responsible for the ensuing harm. Country Classics and Rodriguez did not have a written contract.

In order to prevail on an application for summary judgment, a "movant must show that there does not exist a genuine issue as to a material fact and not simply one of an insubstantial nature; a non-movant will be unsuccessful merely by pointing to any fact in dispute." Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.) (internal quotation marks omitted), certif. denied, 154 N.J. 608 (1998). Our review is de novo, "employ[ing] the same standard that governs the trial court." Busciglio v. Dellafave, 366 N.J. Super. 135, 139 (App. Div. 2004). If the undisputed material facts, viewed in the light most favorable to the nonmoving party nonetheless entitle the moving party to the relief it seeks as a matter of law, summary judgment will be affirmed. See Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

Plaintiffs raise the following points for our consideration on appeal:

POINT I: STANDARD OF REVIEW

POINT II: Summary judgment should be reversed because the trial court incorrectly decided that the Respondents did not owe a duty of care to the Appellants

A. N.J. Ct. R. 4:46-2(c) requires the moving party to prove that it is entitled to judgment as a matter of law

B. The risk of injury to Nanguelu and Juarez could have been foreseen by the Respondents

C. The Respondents, as the general contractor, had a non-delegable duty towards Nanguelu and Juarez because they were workers at the construction site overseen by the Respondents

1. OSHA regulations require scaffolds to be built in a safe way that minimizes the risk of injury

2. OSHA's regulations on scaffolds were not observed at the Respondents' construction site

3. The contract between Country Classics and Probuilt Construction, LLC also established a duty to protect the safety of all workers at the construction site

D. The Respondents had the ideal opportunity and capacity to have prevented the risk of harm to Nanguelu and Juarez

E. It is fair, equitable, and consistent with public policy goals to impose a duty of care upon the Respondents for the employees of their subcontractors

"In New Jersey, as elsewhere, it is widely accepted that a negligence cause of action requires the establishment of four elements: (1) a duty of care, (2) a breach of that duty, (3) actual and proximate causation, and (4) damages." Jersey Cent. Power & Light Co. v. Melcar Util. Co., 212 N.J. 576, 594 (2013). "[T]he question of whether a duty exists is a matter of law properly decided by the court . . . ." Strachan v. John F. Kennedy Mem'l Hosp., 109 N.J. 523, 529 (1988).

"Ultimately, whether a duty exists is a matter of fairness." Dunphy v. Gregor, 136 N.J. 99, 108 (1994). "Although a foreseeable risk is the indispensable cornerstone of any formulation of a duty of care, not all foreseeable risks give rise to duties." Ibid. In addition to considering foreseeability, "the determination of [the existence of] a duty involves identifying, weighing, and balancing several factors," which are "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." Alloway, supra, 157 N.J. at 230 (internal quotation marks omitted). "The analysis leading to the imposition of a duty of reasonable care is both fact-specific and principled . . . ." Ibid. (internal quotation marks omitted).

Turning to plaintiffs' points of error, although we agree that the Court in Alloway found OSHA regulations to be "highly relevant," id. at 234, we do not agree that the judge here improperly weighed the significance of the alleged OSHA violations. In Alloway, the plaintiff was a truck driver for a subcontractor, and she was severely injured by a malfunction in one of the subcontractor's trucks on the defendant's worksite. Id. at 227-28. Several of the defendant's employees were on notice that the truck was malfunctioning, as the day before, they had attempted to fix the vehicle. Id. at 227. The injury was foreseeable; the defendant had actual knowledge that the truck was defective. Id. at 232. Furthermore, there was a substantial and close relationship between the defendant and the plaintiff because the subcontractor's principal worked directly for the defendant as an employee. See ibid. Additionally, the defendant could exercise authority and control over the subcontractor and the trucks. Ibid. Therefore, the defendant was found to owe a duty of reasonable care to the plaintiff. Id. at 233-34.

We find this case to be similar to Tarabokia v. Structure Tone, 429 N.J. Super. 103 (App. Div. 2012), certif. denied, 213 N.J. 534 (2013), not Alloway. In Tarabokia, the defendant was the general contractor for an office building project, and the plaintiff's employer was the electrical subcontractor. Id. at 107. The contract between the building developer and the defendant actually required defendant to designate a safety supervisor, and implement safety programs. Id. at 108. Defendant promulgated a safety plan, and even implemented weekly meetings regarding safety. Id. at 108-10. The plaintiff sustained serious injuries as a result of his repetitive use, without safety gloves, of a device that installed bolts in a ceiling. Id. at 107-08. We said, regarding OSHA:

[W]e need not decide the applicability of OSHA to resolve this matter because "non-compliance with [OSHA] standards does not alone create a viable cause of action, nor does it necessarily place a tort duty of care on the general contractor." Costa[ v. Gaccione], 408 N.J. Super. [362,] 372-73[ (App. Div. 2009). Of course, "violations of OSHA are to be considered with other fairness factors in determining the existence of a duty and the duty's scope." Ibid. (internal quotation marks omitted).

. . . We are satisfied that under these circumstances, assuring compliance with OSHA regulations simply does not amount to the kind of control over the subcontractor's work sufficient to implicate any duty on [the] defendant's part to protect [the subcontractor]'s employees.

[Tarabokia, supra, 429 N.J. Super. at 120 (second alteration in original).]

Just like in Tarabokia, that these defendants had undertaken to comply with OSHA did not necessarily create a duty to the plaintiffs, even if that contractual provision was violated. The contractual commitment did not, per se, create a separate duty of care.

There was neither constructive nor actual knowledge of the risks to plaintiffs. There was no on-the-job oversight of the construction of the scaffold and neither defendant exercised direct authority over Rodriguez's employees. Neither defendant had a special relationship with plaintiffs or their employer such that they were the cause of or contributed to the dangerous condition.

In Carvalho v. Toll Bros. & Developers, 143 N.J. 565, 578 (1996), knowledge and a duty resulted in liability in different circumstances than this case. The defendant's engineers were supervising a project during the course of which pipe was laid in trenches. Id. at 570, 575. One trench collapsed, killing the plaintiff. Id. at 572. The defendant's engineer learned of the dangerous condition because on the days prior, other trenches had collapsed. Id. at 574. The defendant's engineer, who was on site and could have addressed the problem, did not take adequate safety measures to negate risks of injury or death to workers on the site. See id. at 577-78. The defendants had actual knowledge of the risk of harm.

Finally, we see no gain in "the public interest in the proposed solution." See Alloway, supra, 157 N.J. at 230 (internal quotation marks omitted). Nowhere in this record is there an indication that either defendant had a reasonable opportunity to prevent plaintiffs' injuries. They simply were not "in a position to foresee and discover the risk of harm and to exercise reasonable care to avert any harm." See Carvalho, supra, 143 N.J. at 578. It would not be equitable to impose a duty given the remove between defendants and the activities that plaintiffs performed that resulted in their injuries.

Affirmed.

1 Mark Luebcke, defendant Pro Built's principal, was dismissed voluntarily from the proceedings by consent.

2 As used hereafter, "plaintiffs" refers to the two injured individuals, Nanguelu and Lopez.