NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0761-18T4
ESTATE OF KATHLEEN CHETWYND by FREDERICK E. CHETWYND, JR., the Executor of the Estate of Kathleen Chetwynd, FREDERICK E. CHETWYND, JR., her husband, individually, and PETER CHETWYND,
Plaintiffs-Appellants,
v.
DIVERSIFIED RACK & SHELVING, INC., J.C. RACK & SHELVING, INC., JUAN CARLOS RODRIGUEZ, JOSE AVALOS, SCHREIBER FOODS INTERNATIONAL, INC., ALL SEASONS FOODS, INC. d/b/a EVILY ATLANTIC WAREHOUSE, LTD., EVILY DISTRIBUTION, and HARLEYSVILLE INSURANCE COMPANY,
Defendants-Respondents. ____________________________________
Submitted December 2, 2019 – Decided December 16, 2019
Before Judges Fasciale and Moynihan. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-0232-16.
Pezzano Mickey & Bornstein LLP, attorneys for appellants (Wendy S. Bornstein, on the briefs).
Law Office of Gerald F. Strachan, attorneys for respondent Diversified Rack & Shelving, Inc. (Matthew Raymond Panas, on the brief).
Barry, McTiernan & Wedinger, PC, attorneys for respondents Schreiber Foods International, Inc. and All Seasons Foods, Inc. d/b/a Evily Atlantic Warehouse, Ltd. a/k/a Evily Distribution (Laurel A. Wedinger and Richard W. Wedinger, on the brief).
PER CURIAM
In this personal injury case, plaintiffs appeal two April 2, 2018 orders,
barring plaintiffs' liability expert report and granting summary judgment to
defendants Diversified Rack & Shelving, Inc. (Diversified) and Schreiber Foods
International, Inc.; All Seasons Foods, Inc. d/b/a Evily Atlantic Warehouse, Ltd.
a/k/a Evily Distribution (collectively Schreiber). Kathleen Chetwynd (plaintiff)
died during the unloading of heavy metal shelving from her truck. We affirm.
Schreiber owned the premises where the accident occurred. Schreiber
hired Diversified to dismantle, transport and re-install storage racks. Diversified
then hired plaintiff's company, Kat'z Transportation LLC, to transport the
shelving, and hired J.C. Rack & Shelving, Inc. (J.C. Rack), which was owned
A-0761-18T4 2 by Juan Carlos Rodriguez (Rodriguez), to load and unload plaintiff's truck. The
accident occurred when Jose Avalos (Avalos)—a J.C. Rack employee—
unloaded plaintiff's truck using a forklift. Plaintiffs argued that Avalos operated
the forklift without taking the necessary steps to ensure that no one was within
the truck's vicinity. 1
I.
We begin by addressing the order barring plaintiffs' expert report as a net
opinion. The admission or exclusion of expert testimony is within the trial
judge's sound discretion. State v. Berry, 140 N.J. 280, 293 (1995). "Absent a
clear abuse of discretion, an appellate court will not interfere with the exercise
of that discretion." Innes v. Marzano-Lesnevich, 435 N.J. Super. 198, 247 (App.
Div. 2014) (internal quotation marks omitted) (quoting Carey v. Lovett, 132 N.J.
44, 64 (1993)). An abuse of discretion occurs when a decision is "made without
a rational explanation, inexplicably departed from established policies, or rested
on an impermissible basis." Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571
(2002) (citation omitted).
1 Plaintiffs obtained a default judgment against J.C. Rack and Rodriguez, and Avalos was dismissed from the case. A-0761-18T4 3 The net opinion rule "forbids the admission into evidence of an expert's
conclusions that are not supported by factual evidence or other data."
State v. Townsend, 186 N.J. 473, 494 (2006). It mandates that an expert provide
"the why and wherefore that supports the opinion, rather than a mere
conclusion." Borough of Saddle River v. 66 E. Allendale, LLC, 216 N.J. 115,
144 (2013) (internal quotation marks and citations omitted). "The failure of an
expert to give weight to a factor thought important by an adverse party does not
reduce his testimony to an inadmissible net opinion if he otherwise offers
sufficient reasons which logically support his opinion." Rosenberg v. Tavorath,
352 N.J. Super. 385, 402 (App. Div. 2002). "[A]n expert witness is always
subject to searching cross-examination as to the basis of his opinion[.]"
Glenpointe Assocs. v. Twp. of Teaneck, 241 N.J. Super. 37, 54 (App. Div. 1990)
(citation omitted).
The Occupational Safety and Health Administration Agency (OSHA)
classifies all worksite employers into one or more categories. Plaintiffs' expert,
Brooks Rugemer (Rugemer), classified Diversified as: (1) a creating employer
(one that "caused a hazardous condition that violates an OSHA standard"); (2)
an exposing employer (one "whose own employees are exposed to a hazard");
(3) a correcting employer (one "who is engaged in a common undertaking, on
A-0761-18T4 4 the same worksite, as the exposing employer and is responsible for correcting a
hazard"); and (4) a controlling employer (one "who has general supervisory
authority over the worksite, including the power to correct safety and health
violations itself or require others to correct them"). He classified Schreiber as
an exposing employer, a correcting employer, and a controlling employer.
Diversified and Schreiber contend that Rugemer provided mere conclusions,
rather than "the why and wherefore that supports [his] opinion[.]" Saddle River,
216 N.J. at 144 (internal quotation marks and citations omitted).
N.J.R.E. 702 governs the admissibility of expert testimony: "[i]f
scientific, technical, or other specialized knowledge will assist the trier of fact
to understand the evidence or to determine a fact in issue, a witness qualified as
an expert by knowledge, skill, experience, training, or education may testify
thereto in the form of an opinion or otherwise." N.J.R.E. 702 imposes three
basic requirements:
(1) the intended testimony must concern a subject matter that is beyond the ken of the average juror; (2) the field testified to must be at a state of the art such that an expert's testimony could be sufficiently reliable; and (3) the witness must have sufficient expertise to offer the intended testimony.
[Creanga v. Jardal, 185 N.J. 345, 355 (2005) (internal quotation marks and citations omitted).]
A-0761-18T4 5 N.J.R.E. 703 governs the underlying bases of expert opinion testimony:
The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.
Rugemer did not provide "sufficient reasons which logically support his
opinion" as to the cause of plaintiff's death nor who bore responsibility for the
accident. Rosenberg, 352 N.J. Super. at 402. As the judge noted, the report
does not contain an explanation as to how a possible classification alone creates
liability. There must be evidentiary support for an expert's conclusion, and the
expert must base his opinion on facts or data. See Bahrle v. Exxon Corp., 279
N.J. Super. 5, 30 (App. Div. 1995). Rugemer's report did not provide sufficient
detail, and it did not sufficiently indicate that his opinion and conclusions were
based on factual evidence. Thus, the motion judge properly barred the report
from evidence.
II.
Plaintiffs contend the judge improperly determined that Diversified did
not or could not have had knowledge that it hired an incompetent subcontractor.
In his written decision, the motion judge stated that:
A-0761-18T4 6 No evidence has been provided to this court's satisfaction that [d]efendant Diversified had any indication that anyone working for J[.]C[.] Rack, including Mr. Jose Avalos[,] who operated the forklift on the date in question, was anything but competent to do the job requested. Even if this court were to find that J[.]C[.] Rack was incompetent by means of any liability associated with the actions of Mr. Avalos, and that such incompetence is what led to the death of plaintiff, plaintiff cannot prove that [d]efendant Diversified knew or should have know[n] of said incompetence.
Principals are not liable for the actions of independent contractors, absent
one of three exceptions: (1) the principal retains control of the manner and
means of the performance of the contracted work; (2) the principal retains an
"incompetent contractor"; and (3) the activity is a nuisance per se. Majestic
Realty Assocs., Inc. v. Toti Contracting Co., 30 N.J. 425, 431 (1959). In this
case, the issue is whether Diversified hired an "incompetent contractor."
[T]o prevail against the principal for hiring an incompetent contractor, a plaintiff must show that the contractor was, in fact, incompetent or unskilled to perform the job for which he/she was hired, that the harm that resulted arose out of that incompetence, and that the principal knew or should have known of the incompetence.
[Puckrein v. ATI Transp., Inc., 186 N.J. 563, 576 (2006).]
A-0761-18T4 7 In Puckrein, plaintiff-decedents were killed when their automobile was
struck by an unregistered and uninsured tractor-trailer with defective brakes. Id.
at 567. The tractor-trailer was owned by ATI Transport, Inc. (ATI) and was
transporting material for Browning-Ferries Industries of New York, Inc. (BFI)
at the time of the accident. Ibid. The judge granted summary judgment to BFI,
and we affirmed. Ibid. However, our Supreme Court reversed, explaining that,
"when a person engages an independent contractor to do work that is not itself
a nuisance, he is not vicariously liable for the negligent acts of the contractor in
the performance of the contract." Id. at 574. "Generally . . . the principal is not
vicariously liable for the torts of the independent contractor if the principal did
not direct or participate in them." Ibid. (alteration in original) (quoting
Baldasarre v. Butler, 132 N.J. 278, 291 (1993)).
In Mavrikidis v. Petullo, the owner of a company hired an independent
contractor to repave the asphalt at his premises. 153 N.J. 117, 125 (1998). The
contractor's dump truck collided with the plaintiff's car, causing her injuries. Id.
at 124-25. The plaintiff sued the contractor and the owner. Id. at 129. A jury
found that the owner was "negligent in engaging a careless, reckless or
incompetent contractor," and that the negligence was the proximate cause of the
plaintiff's injuries. Id. at 130. But we reversed, concluding there was
A-0761-18T4 8 insufficient evidence to support a finding that the owner was negligent in hiring
the contractor. Id. at 131. The Court affirmed, explaining that there was no
evidence that the contractor was incompetent to perform the work it was hired
to do. Id. at 137. The Court held that even if the contractor was incompetent,
the owner had no knowledge of that. Id. at 138. As the Court opined, the poor
condition of the contractor's trucks did not evince its incompetency to replace
asphalt—the job it was hired to perform. Id. at 138-42.
Thus, in Mavrikidis, the plaintiff's injury occurred not as part of the
paving job, but rather during the hauling of equipment to the job site. Id. at 125.
This is a vastly different case than that presented in Puckrein, in which the
plaintiffs were injured while ATI transported material for BFI—the job that ATI
was hired to do. 186 N.J. at 567. In Puckrein, transportation was not peripheral
to the contract—like it was in Mavrikidis—but rather it was the essence of
contract. Id. at 578. The Court explained that, "the hauler's basic competency
included, at a minimum, a valid driver's license, a valid registration certificate,
and a valid liability insurance identification card," and that without those, the
hauler "ha[d] no right to be on the road at all." Ibid. "[A]n employer may be
charged with negligence in hiring an independent contractor where it is
demonstrated that he should have known, or might by the exercise of reasonable
A-0761-18T4 9 care have ascertained, that the contractor was not competent." Id. at 579
(citation omitted). "The extent of the inquiry obviously depends on the status
of the principal and the nature of the task that the contract covers." Ibid.
David Longo (David), Diversified's warehouse manager, oversaw the
Schreiber job performed by J.C. Rack, and was responsible for ensuring that the
subcontractors were doing the correct job. When asked if he ever made a
determination as to whether the person operating the forklift at the time of the
incident was licensed, David testified that it was "up to [Rodriguez] to make
sure his crew[] . . . members have licenses." He said that Diversified ensured
that Rodriguez was licensed, but that it was Rodriguez's responsibility to make
sure that an employee operating a forklift was licensed.
David knew that not all of J.C. Rack's crew members were licensed. But
he testified that whoever operates a forklift has to be licensed and that the
subcontractor has the ability to decide to which crew members to assign
responsibilities. David said that he asked Rodriguez if the forklift driver was
licensed approximately one month after the accident, and Rodriguez replied that
he was. Though aware that forklift operators must be licensed or certified,
Stephen Longo (Stephen), Diversified's logistics coordinator/in-house project
manager, stated that he was "not sure if [J.C. Rack] had [its] forklift license or
A-0761-18T4 10 not, but we require [it] to have a forklift license," and that Diversified does not
"track" a subcontractor's forklift license. Additionally, Diversified contends that
it "did not load or unload the truck," "did not dismantle and/or bundle the racking
systems," and "did not reinstall the racking systems." Diversified's project
manager visited the job site for approximately thirty minutes each day but was
not on-site when the accident occurred.
At the time of the accident, Rodriguez believed Avalos was certified to
operate a forklift, but thereafter learned that Avalos's prior certification had
expired. Diversified also states that Avalos only worked "on and off" for J.C.
Rack for a few months and operated a forklift for J.C. Rack "a few times prior
to the accident." Diversified did not know which J.C. Rack crew members
would be working at the time of the accident. Diversified also cites to
Mavrikidis, in which our Court stated that, "[i]mposing a duty on a contractee
to check the driving record and credentials of the contractor's employees or to
inspect the contractor's equipment would impose a very onerous burden on the
contractee." 153 N.J. at 142.
Here, Diversified hired J.C. Rack to unload trucks, which was merely
"part of the overall process" because J.C. Rack was hired to "complete multiple
tasks," such as disassembling the racking system, bundling and packing it,
A-0761-18T4 11 loading it onto a truck, unloading it at a second location, unbundling and
unpacking it at this second location, and then reassembling it. As such, it claims
that the use of the forklift "was only part of the tasks required by the contract"
between Diversified and J.C. Rack. The issue however still hinges on whether
J.C. Rack's employee was properly certified to operate a forklift or if he was an
incompetent contractor. As this was crucial to the contract between Diversified
and J.C. Rack—and not merely peripheral—Diversified could potentially be
liable for hiring an incompetent independent contractor.
But to prevail against Diversified, plaintiffs must show that: (1) J.C. Rack
was incompetent or unskilled to perform the job for which it was hired; (2) J.C.
Rack's incompetence caused plaintiff's death; and (3) Diversified knew or
should have known of the incompetence. Puckrein, 186 N.J. at 576. Diversified
inquired into whether Rodriguez—as J.C. Rack's owner—was licensed. The fact
that J.C. Rack employed individuals who were not certified forklift drivers does
not necessarily mean that Diversified retained an incompetent contractor
because J.C. Rack performed other tasks on the job, like disassembling racking
systems, bundling and packing them, and then unbundling and reassembling
them. Diversified essentially concedes it had a duty to inquire about
certifications, and it did so by ensuring that Rodriguez himself was certified to
A-0761-18T4 12 operate forklifts. However, in accordance with Mavrikidis, Diversified did not
have a duty to check every J.C. Rack employees' credentials. 153 N.J. at 142.
III.
Plaintiffs argue that Diversified is liable under general negligence
principles for J.C. Rack's and Avalos's conduct. "[O]rdinarily[,] negligence
must be proved and will never be presumed, . . . indeed there is a presumption
against it, and . . . the burden of proving negligence is on the plaintiff."
Buckelew v. Grossbard, 87 N.J. 512, 525 (1981). "[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).
Whether one owes a duty is a question of law to be decided by the trial judge.
Carvalho v. Toll Bros. & Developers, 143 N.J. 565, 572 (1996). "[N]o bright
line rule . . . determines when one owes a legal duty to prevent a risk of harm to
another." Wlasiuk v. McElwee, 334 N.J. Super. 661, 666 (App. Div. 2000).
The imposition of a duty depends on several factors, including: (1) "the
relationship of the parties"; (2) "the nature of the attendant risk"; (3) "the
opportunity and ability to exercise care"; and (4) "the public interest in the
proposed solution." Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439 (1993).
A-0761-18T4 13 "Ultimately, . . . the question of whether a duty exists is one of 'fairness' and
'public policy.'" Wlasiuk, 334 N.J. Super. at 666-67 (citations omitted). Our
Supreme Court "[c]ombin[es] and weigh[s] all relevant factors" such as,
the foreseeability of the nature and severity of the risk of injury based on the defendant's actual knowledge of dangerous conditions, the relationship of the parties and the connection between the defendant's responsibility for work progress and safety concerns, and the defendant's ability to take corrective measures to rectify the dangerous conditions[.]
[Alloway v. Bradlees, Inc., 157 N.J. 221, 231-32 (1999).]
"[G]eneral and subcontractors have a joint, non-delegable duty to maintain a
safe workplace that includes ensur[ing] prospective and continuing compliance
with the legislatively imposed non-delegable obligation to all employees on the
job site, without regard to contractual or employer obligations." Id. at 237
(second alteration in original) (internal quotation marks and citation omitted).
[T]he State's statutory imposition of a duty on the general contractor expressed a clear legislative intention "to ensure the protection of all of the workers on a construction project, irrespective of the identity and status of their various and several employers, by requiring, either by agreement or by operation of law, the designation of a single repository of the responsibility for the safety of them all."
[Id. at 238 (quoting Bortz v. Rammel, 151 N.J. Super. 312, 321 (App. Div. 1977)).]
A-0761-18T4 14 In Carvalho, a town retained an engineer to prepare plans for the
construction of a sewer service. 143 N.J. at 569. A general contractor was hired
for the project, who hired a subcontractor. Ibid. Later, the engineer hired an
inspector as the site representative. Id. at 570. A trench collapsed at the site,
killing an employee of the subcontractor. Id. at 571-72. The employee settled
with the general and subcontractors, id. at 572, but the Court analyzed the
connected foreseeability of the harm and considerations of fairness and public
policy to determine whether to hold the engineer liable. Id. at 573.
The Court recognized that, "[w]hereas the magnitude and likelihood of
potential harm are objectively determinable, the propriety of imposing a duty of
care is not." Ibid. (quoting Weinberg v. Dinger, 106 N.J. 469, 485 (1987)).
Although in many cases a duty of care can arise simply from the determination of the foreseeability of harm, usually more is needed to find such a duty, that more being the value judgment, based on an analysis of public policy, that the actor owed the injured party a duty of reasonable care.
[Ibid. (internal quotation marks and citations omitted).]
Here, we consider "fairness and policy," by weighing foreseeability based
on: (1) Diversified's actual knowledge of dangerous conditions; (2) the
relationship between Diversified and plaintiff; and (3) the connection between
Diversified's responsibility for work progress and safety concerns, including its
A-0761-18T4 15 ability to take corrective measures to rectify dangerous conditions. Alloway,
157 N.J. at 231-32.
It is reasonably foreseeable that a subcontractor could be injured because
of dangerous conditions on one of Diversified's jobs. Plaintiff was one of
Diversified's subcontractors. Diversified however did not have direct contact
with plaintiff on-site, rather plaintiff worked directly with J.C. Rack⸻another
Diversified subcontractor. The relationship between the parties is still
contractual, though a little more attenuated, as there was no direct contact
between the two on-site.
In Carvalho, the issue was the relationship between a subcontractor's
employee and an engineer hired by the town in which the construction was
taking place. 143 N.J. at 569, 571-72. But this case is distinguishable, even
though plaintiff is akin to the subcontractor's employee, because Diversified is
not akin to the engineer, but instead, the general contractor. Nevertheless,
Diversified—who did not supervise nor was it required to supervise the work of
J.C. Rack—took corrective measures to ensure that forklift drivers be certified
to operate forklifts.
IV.
A-0761-18T4 16 Plaintiffs argue that OSHA regulations should be considered in
determining Diversified's and Schreiber's liability. The purpose of the
Occupational Safety and Health Act (the Act), 29 U.S.C. §§ 651 to 678, is "to
provide for the general welfare, to assure so far as possible every working man
and woman in the Nation safe and healthful working conditions and to preserve
our human resources[.]" 29 U.S.C. § 651(b). The Act requires "employers to
comply with specific OSHA standards and also imposes a general duty on
employers to provide a workplace 'free from recognized hazards that are
causing or are likely to cause death or serious physical harm.'" Gonzalez v. Ideal
Tile Importing Co., Inc., 371 N.J. Super. 349, 359-60 (App. Div. 2004)
(emphasis omitted) (quoting 29 U.S.C. § 654(a)).
But, "the finding of an OSHA violation does not ipso facto constitute a
basis for assigning negligence as a matter of law; that is, it does not constitute
negligence per se." Kane v. Hartz Mountain Indus., Inc., 278 N.J. Super. 129,
144 (App. Div. 1994). Thus, while the existence of an OSHA violation may be
evidence that a company did not follow the OSHA regulations, it is not evidence
that a company was liable as either a property owner or a general contractor. As
a result, OSHA regulations may be considered in determining Diversified's and
Schreiber's liability, but such regulations are not determinative.
A-0761-18T4 17 V.
Finally, plaintiffs contend that there exists a genuine issue of material fact
to preclude summary judgment. When reviewing an order granting summary
judgment, we apply "the same standard governing the trial court[.]" Oyola v.
Xing Lan Liu, 431 N.J. Super. 493, 497 (App. Div. 2013). A court should grant
summary judgment when the record reveals "no genuine issue as to any material
fact" and "the moving party is entitled to a judgment or order as a matter of law."
R. 4:46-2(c). We owe no special deference to the motion judge's conclusions
on issues of law. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140
N.J. 366, 378 (1995). We consider the facts in a light most favorable to the non-
moving party. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995).
"An issue of fact is genuine only if, considering the burden of persuasion at trial,
the evidence submitted by the parties on the motion, together with all legitimate
inferences therefrom favoring the non-moving party, would require submission
of the issue to the trier of fact." R. 4:46-2(c).
Here, plaintiffs argue that there is a fact issue about whether Diversified
was aware of the training, supervision, and certification of the forklift operator
unloading plaintiff's truck. But we see no genuine issues of material fact. As
to Diversified, summary judgment was appropriate for reasons previously
A-0761-18T4 18 explained. And as to Schreiber, summary judgment was appropriate because
Schreiber had no control over the methods or means of unloading the truck, and
did not have knowledge that Diversified hired J.C. Rack to aid in dismantling
and reassembling the shelving units.
Affirmed.
A-0761-18T4 19