NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1679-22
ESTATE OF WILLIAMS SARAVIA, by his duly appointed Administrator Ad Prosequendum, GUILLERMO E. GINARTE,
Plaintiff-Appellant,
v.
BAYONNE DRY DOCK & REPAIR CORP.,
Defendant/Third-Party Plaintiff-Respondent,
and
PATRIOT CONTRACT SERVICES, LLC,
Defendant. _______________________________
Third-Party Plaintiff/ Respondent, v.
5 SEASONS LSB CORPORATION,
Third-Party Defendant- Respondent. _______________________________
Submitted March 12, 2024 – Decided August 13, 2024
Before Judges Sumners and Smith.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-1997- 20.
Ginarte Gonzalez & Winograd, LLP, attorneys for appellant (Sean T. Payne and Richard M. Winograd, on the briefs).
Michael E. Stern (Rubin, Fiorella, Friedman & Mercante LLP) and James E. Mercante (Rubin, Fiorella, Friedman & Mercante LLP), attorneys for respondent Bayonne Dry Dock & Repair Corp.
PER CURIAM
On April 19, 2020, laborer/painter Williams Saravia was working for 5
Seasons LSB Corporation, which was sub-contracted by Bayonne Dry Dock &
Repair Corp., to provide maintenance services aboard the USNS Red Cloud, a
United States Naval Vessel. While working without safety equipment, Saravia
fell to his death. Plaintiff Estate of Williams Saravia by his duly appointed
Administrator Ad Prosequendum, Guillermo E. Ginarte, sued Bayonne Dry
A-1679-22 2 Dock and Patriot Contract Services, LLC, the prime contractor for the
maintenance project alleging their negligence caused Saravia's death.
Plaintiff appeals the summary judgment dismissal of his negligence
complaint against Bayonne Dry Dock. We affirm substantially for the same
cogent reasons expressed by Judge Veronica Allende that Bayonne Dry Dock
owed no duty of care to Saravia.
I.
We glean the following facts from the summary judgment record,
viewing them in the light most favorable to plaintiff as the non-moving party.
Statewide Ins. Fund v. Star Ins. Co., 253 N.J. 119, 125 (2023). Bayonne Dry
Dock, a general contractor, subcontracted with 5 Seasons to assist it in
performing maintenance on the USNS Red Cloud. Bayonne Dry Dock had
hired 5 Seasons on four prior occasions to perform similar work with nothing
in the record indicating that 5 Seasons failed to perform its tasks in accordance
with the required safety guidelines. Under its sub-contract agreement, 5
Seasons was obligated to observe all Occupational Safety and Health
Administration (OSHA) regulations and other applicable state and federal
safety laws and regulations in performing its work.
A-1679-22 3 Saravia, along with his supervisor and four 5 Seasons co-workers, were
directed to paint the inside of the USNS Red Cloud's anchor chain locker—a
compartment where the ship's anchor chain is stored during travel. The
compartment is approximately thirty feet deep, accessible by one of two
manholes covered by access hatches. Prior to painting, the workers had to
build scaffolding. A notice, based on an inspection of atmospheric testing by
Bayonne Dry Dock, indicated entry into anchor chain locker "was permitted
and safe."
Before Saravia and the others entered the anchor chain locker, the
supervisor, using hand signals, informed them "to wait . . . to take a rest" until
he returned with "fall protection" such as "safety harnesses." The supervisor,
whose first language is Korean, "pointed to the hatch and then represented not
to go in the hatch and then take a rest, using [his] hands." Saravia's first
language was Spanish, though he spoke some basic English. Saravia's co-
worker did not wait for the safety equipment and descended into the anchor
chain locker. Saravia followed, using only a rope secured to a pipe to descend.
When the co-worker had reached the bottom of the anchor chain locker, he
A-1679-22 4 heard Saravia shout "I cannot hold on any longer. I'm losing my grip." 1
Saravia fell to the bottom of the anchor chain locker, suffering multiple
traumas. He was pronounced dead at the scene. There was no Bayonne Dry
Dock employee in the anchor chain locker hatch area when Saravia and his co-
worker entered the anchor chain locker without safety equipment.
II.
Plaintiff filed a negligence action against defendants, seeking damages
for Saravia's injuries and death. Following discovery, plaintiff dismissed its
claims against Patriot Contract Services with prejudice and Bayonne Dry Dock
moved for summary judgment dismissal of the complaint.
Summary Judgment Motion
Judge Allende granted Bayonne Dry Dock's summary judgment motion.
Her written decision stated that "[u]pon viewing all the evidence . . . no
genuine dispute of material fact exists regarding whether [Bayonne Dry Dock]
owed a duty of care" to Saravia. The judge cited Muhammad v. N.J. Transit,
which held that "a general contractor typically enjoy[s] broad immunity from
liability for injuries to an employee of a subcontractor resulting from either the
condition of the premises or the manner in which the hired work was
1 The record is unclear what language Saravia was speaking.
A-1679-22 5 performed." 176 N.J. 185, 198-99 (2003). The judge noted plaintiff failed to
cite exceptions to this general rule, as recognized in Tarabokia v. Structure
Tone, where we ruled liability may be found when a general contractor
controls the manner and means of the work the subcontractor was contracted
for; where an incompetent subcontractor is knowingly hired; or where the
contracted work constitutes a nuisance per se. 429 N.J. Super. 103, 113 (App.
Div. 2012). She also relied upon Accardi v. Enviro-Pak Systems Co., 317 N.J.
Super. 457, 463 (App. Div. 1999), where we ruled a general contractor "may
assume that the independent [sub]contractor and [its] employees are
sufficiently skilled to recognize the dangers associated with their task and
adjust their methods accordingly to ensure their own safety."
The judge found the undisputed record showed that Bayonne Dry Dock
"did not exercise control over the means and manner of the work" 5 Seasons
was contracted to perform, and 5 Seasons was solely obligated under its sub-
contract to provide its workers' safety equipment. The judge thus determined
that Saravia died from injuries sustained while performing a task controlled
exclusively by 5 Seasons.
Finally, the judge rejected plaintiff's contention that OSHA regulations
imposed on Bayonne Dry Dock extended to protect Saravia, finding Bayonne
A-1679-22 6 Dry Dock fulfilled its duty by performing atmospheric testing of the anchor
chain locker. The judge instead relied on OSHA's determination that 5
Seasons, not Bayonne Dry Dock, had violated applicable laws and regulations
in allowing its employees to descend into the anchor chain locker without
proper safety measures.
Reconsideration Motion
Judge Allende denied plaintiff's reconsideration motion, setting forth her
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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-1679-22
ESTATE OF WILLIAMS SARAVIA, by his duly appointed Administrator Ad Prosequendum, GUILLERMO E. GINARTE,
Plaintiff-Appellant,
v.
BAYONNE DRY DOCK & REPAIR CORP.,
Defendant/Third-Party Plaintiff-Respondent,
and
PATRIOT CONTRACT SERVICES, LLC,
Defendant. _______________________________
Third-Party Plaintiff/ Respondent, v.
5 SEASONS LSB CORPORATION,
Third-Party Defendant- Respondent. _______________________________
Submitted March 12, 2024 – Decided August 13, 2024
Before Judges Sumners and Smith.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-1997- 20.
Ginarte Gonzalez & Winograd, LLP, attorneys for appellant (Sean T. Payne and Richard M. Winograd, on the briefs).
Michael E. Stern (Rubin, Fiorella, Friedman & Mercante LLP) and James E. Mercante (Rubin, Fiorella, Friedman & Mercante LLP), attorneys for respondent Bayonne Dry Dock & Repair Corp.
PER CURIAM
On April 19, 2020, laborer/painter Williams Saravia was working for 5
Seasons LSB Corporation, which was sub-contracted by Bayonne Dry Dock &
Repair Corp., to provide maintenance services aboard the USNS Red Cloud, a
United States Naval Vessel. While working without safety equipment, Saravia
fell to his death. Plaintiff Estate of Williams Saravia by his duly appointed
Administrator Ad Prosequendum, Guillermo E. Ginarte, sued Bayonne Dry
A-1679-22 2 Dock and Patriot Contract Services, LLC, the prime contractor for the
maintenance project alleging their negligence caused Saravia's death.
Plaintiff appeals the summary judgment dismissal of his negligence
complaint against Bayonne Dry Dock. We affirm substantially for the same
cogent reasons expressed by Judge Veronica Allende that Bayonne Dry Dock
owed no duty of care to Saravia.
I.
We glean the following facts from the summary judgment record,
viewing them in the light most favorable to plaintiff as the non-moving party.
Statewide Ins. Fund v. Star Ins. Co., 253 N.J. 119, 125 (2023). Bayonne Dry
Dock, a general contractor, subcontracted with 5 Seasons to assist it in
performing maintenance on the USNS Red Cloud. Bayonne Dry Dock had
hired 5 Seasons on four prior occasions to perform similar work with nothing
in the record indicating that 5 Seasons failed to perform its tasks in accordance
with the required safety guidelines. Under its sub-contract agreement, 5
Seasons was obligated to observe all Occupational Safety and Health
Administration (OSHA) regulations and other applicable state and federal
safety laws and regulations in performing its work.
A-1679-22 3 Saravia, along with his supervisor and four 5 Seasons co-workers, were
directed to paint the inside of the USNS Red Cloud's anchor chain locker—a
compartment where the ship's anchor chain is stored during travel. The
compartment is approximately thirty feet deep, accessible by one of two
manholes covered by access hatches. Prior to painting, the workers had to
build scaffolding. A notice, based on an inspection of atmospheric testing by
Bayonne Dry Dock, indicated entry into anchor chain locker "was permitted
and safe."
Before Saravia and the others entered the anchor chain locker, the
supervisor, using hand signals, informed them "to wait . . . to take a rest" until
he returned with "fall protection" such as "safety harnesses." The supervisor,
whose first language is Korean, "pointed to the hatch and then represented not
to go in the hatch and then take a rest, using [his] hands." Saravia's first
language was Spanish, though he spoke some basic English. Saravia's co-
worker did not wait for the safety equipment and descended into the anchor
chain locker. Saravia followed, using only a rope secured to a pipe to descend.
When the co-worker had reached the bottom of the anchor chain locker, he
A-1679-22 4 heard Saravia shout "I cannot hold on any longer. I'm losing my grip." 1
Saravia fell to the bottom of the anchor chain locker, suffering multiple
traumas. He was pronounced dead at the scene. There was no Bayonne Dry
Dock employee in the anchor chain locker hatch area when Saravia and his co-
worker entered the anchor chain locker without safety equipment.
II.
Plaintiff filed a negligence action against defendants, seeking damages
for Saravia's injuries and death. Following discovery, plaintiff dismissed its
claims against Patriot Contract Services with prejudice and Bayonne Dry Dock
moved for summary judgment dismissal of the complaint.
Summary Judgment Motion
Judge Allende granted Bayonne Dry Dock's summary judgment motion.
Her written decision stated that "[u]pon viewing all the evidence . . . no
genuine dispute of material fact exists regarding whether [Bayonne Dry Dock]
owed a duty of care" to Saravia. The judge cited Muhammad v. N.J. Transit,
which held that "a general contractor typically enjoy[s] broad immunity from
liability for injuries to an employee of a subcontractor resulting from either the
condition of the premises or the manner in which the hired work was
1 The record is unclear what language Saravia was speaking.
A-1679-22 5 performed." 176 N.J. 185, 198-99 (2003). The judge noted plaintiff failed to
cite exceptions to this general rule, as recognized in Tarabokia v. Structure
Tone, where we ruled liability may be found when a general contractor
controls the manner and means of the work the subcontractor was contracted
for; where an incompetent subcontractor is knowingly hired; or where the
contracted work constitutes a nuisance per se. 429 N.J. Super. 103, 113 (App.
Div. 2012). She also relied upon Accardi v. Enviro-Pak Systems Co., 317 N.J.
Super. 457, 463 (App. Div. 1999), where we ruled a general contractor "may
assume that the independent [sub]contractor and [its] employees are
sufficiently skilled to recognize the dangers associated with their task and
adjust their methods accordingly to ensure their own safety."
The judge found the undisputed record showed that Bayonne Dry Dock
"did not exercise control over the means and manner of the work" 5 Seasons
was contracted to perform, and 5 Seasons was solely obligated under its sub-
contract to provide its workers' safety equipment. The judge thus determined
that Saravia died from injuries sustained while performing a task controlled
exclusively by 5 Seasons.
Finally, the judge rejected plaintiff's contention that OSHA regulations
imposed on Bayonne Dry Dock extended to protect Saravia, finding Bayonne
A-1679-22 6 Dry Dock fulfilled its duty by performing atmospheric testing of the anchor
chain locker. The judge instead relied on OSHA's determination that 5
Seasons, not Bayonne Dry Dock, had violated applicable laws and regulations
in allowing its employees to descend into the anchor chain locker without
proper safety measures.
Reconsideration Motion
Judge Allende denied plaintiff's reconsideration motion, setting forth her
reasons in an oral decision. She rejected plaintiff's argument that the language
barrier between 5 Seasons' supervisor and Saravia made Bayonne Dry Dock as
the general contractor liable for Saravia's death. The judge reasoned the
language barrier was "immaterial [as] to whether [Bayonne Dry Dock] had a
duty to ensure [5] Seasons provided safety measures." She also determined
Bayonne Dry Dock did not know or had no reason to know that 5 Seasons'
workers such as Saravia would not be able to follow safety directions due to a
language barrier thereby creating Bayonne Dry Dock's duty of care to Saravia.
Based on 5 Seasons' past uneventful work with Bayonne Dry Dock, the judge
maintained there were no facts that Bayonne Dry Dock had reason to deem 5
Seasons a subcontractor with an unsafe work record.
A-1679-22 7 The judge also reasoned that because Bayonne Dry Dock was not
contracted to ensure 5 Seasons' compliance with OSHA regulations, plaintiff's
reliance on Carvalho v. Toll Bros. & Developers, 278 N.J. Super. 451, 460
(App. Div. 1995), aff'd, 143 N.J. 565 (1996), was misplaced. And unlike in
Carvalho, Bayonne Dry Dock's "OSHA competent officer was [neither]
present at the scene of the accident" nor aware of what 5 Seasons "routinely
used for safety."
Lastly, the judge found there was no reason to consider plaintiff's
expert's report because there was no legal support for the opinion that Bayonne
Dry Dock owed Saravia a duty of care based on its contractual agreements,
OHSA regulations, International Covenant for the Safety of Life at Sea, ch. IX,
June 30, 1980, 1185 U.N.T.S. 18961, or International Safety Management
Code.
Plaintiff appealed.
III.
In examining the summary judgment under de novo review, Globe Motor
Co. v. Igdalev, 225 N.J. 469, 479 (2016), we apply the same Brill2 standard
that bound the motion court. Townsend v. Pierre, 221 N.J. 36, 59 (2015);
2 Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520 (1995).
A-1679-22 8 W.J.A. v. D.A., 210 N.J. 229, 237 (2012). Summary judgment is proper if the
record demonstrates "no genuine issue as to any material fact challenged and
that the moving party is entitled to a judgment . . . as a matter of law." Burnett
v. Gloucester Cnty. Bd. of Chosen Freeholders, 409 N.J. Super. 219, 228 (App.
Div. 2009) (quoting R. 4:46-2(c)).
Summary judgment was correctly granted to Bayonne Dry Dock
because, as Judge Allende determined, it did not owe a duty of care to Saravia,
an employee of its subcontractor. See Jersey Cent. Power & Light Co. v.
Melcar Util. Co., 212 N.J. 576, 594 (2013) (holding that, to prove a
defendant's tort liability, a plaintiff must prove a duty of care, a breach of that
duty, actual and proximate causation, and damages). Whether a party owes a
duty to another party is a question of law for the court to decide, not the fact
finder. Rivera v. Cherry Hill Towers, LLC, 474 N.J. Super. 234, 240 (App.
Div. 2022).
In the seminal case of Hopkins v. Fox & Lazo Realtors, our Supreme
Court held the existence of a duty of reasonable care depends on "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." 132
N.J. 426, 439 (1993). In Alloway v. Bradlees, Inc., the Court addressed
A-1679-22 9 whether a general contractor owed "a duty to assure the safety of an employee
of a subcontractor" who uses "equipment supplied by the subcontractor" at the
general contractor's work site. 157 N.J. 221, 225 (1999). The Court fine-
tuned the Hopkins factors, pronouncing "the foreseeability of harm, the
relationship between the parties, and the opportunity and capacity to take
corrective action" determine whether imposing "a duty of reasonable care"
constitutes "fairness and sound policy." Id. at 233.
Foreseeability examines "whether the defendant was reasonably able to
ascertain that [its] allegedly negligent conduct could injure the plaintiff in the
manner it ultimately did." Robinson v. Vivirito, 217 N.J. 199, 212 (2014)
(citing McDougall v. Lamm, 211 N.J. 203, 225-26 (2012)). Foreseeability also
analyzes "whether the defendant had actual or constructive knowledge of the
risk of injury and 'is susceptible to objective analysis.'" Rivera, 474 N.J.
Super. at 241 (quoting J.S. v. R.T.H., 155 N.J. 330, 338 (1998)). Yet,
imposing a duty of reasonable care involves not just foreseeability of harm but
also "on an analysis of public policy, that the actor owed the injured party a
duty of reasonable care." Carvalho, 143 N.J. at 573 (quoting Kelly v.
Gwinnell, 96 N.J. 538, 544 (1984)).
A-1679-22 10 Applying these principles leads us to conclude, as did Judge Allende,
that Bayonne Dry Dock did not owe Saravia a duty of reasonable care in
making sure he safety performed his job in entering the anchor chain locker.
Plaintiff raises the same arguments the judge appropriately rejected.
Bayonne Dry Dock was under no contractual duty to ensure that 5
Seasons employed the proper safety protocols under federal or state law in
performing its sub-contractor work on the USNS Red Cloud. 5 Seasons was
solely responsible for its own employees' safety per its sub-contract. Bayonne
Dry Dock had no legal duty under federal or state law to ensure 5 Seasons
safely performed its job.
It is undisputed that Bayonne Dry Dock was neither supervising
Saravia's work nor present when the unfortunate accident occurred such that it
had the ability to control Saravia's work. Bayonne Dry Dock was never in a
position to exercise due care with respect to Saravia.
There is also no legal or factual basis to conclude Bayonne Dry Dock
owed Saravia duty due to a language barrier among 5 Seasons' employees.
How 5 Seasons communicated to its employees was not under Bayonne Dry
Dock's control.
A-1679-22 11 While Saravia's workplace death is tragic, based on the record before us,
it would be unfair and unsound public policy to impose a duty of care upon
Bayonne Dry Dock to ensure that 5 Seasons' employees, such as Saravia,
safely performed their work. It was unequivocally understood that 5 Seasons
had the duty to ensure that its employees safely performed their job. Plaintiff
has not articulated any public interest in expanding that duty to Bayonne.
Affirmed.
A-1679-22 12