NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2965-22
JOSEPH CHIARAVALLOTI and KIMBERLY CHIARAVALLOTI, his wife,
Plaintiffs-Appellants,
v.
FREEDOM MORTGAGE CORPORATION, G&M INVESTMENTS LLC %SUITE3, G&M INV SUITE 3, G AND M INVESTMENTS LLC, and/or G & M INVESTMENTS LLC, G & M INVESTMENTS II LLC, and SRMG ENTERPRISES, LLC,
Defendants-Respondents,
and
ARCHWELL SOLUTIONS LLC,
Defendant. ____________________________
Argued May 1, 2024 – Decided March 3, 2025
Before Judges Gummer and Walcott-Henderson. On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-0814-21.
Richard T. Astorino argued the cause for appellants (Kotlar, Hernandez & Cohen, LLC, attorneys; Richard T. Astorino, of counsel and on the briefs).
Joseph F. Skinner argued the cause for respondent Freedom Mortgage Corporation (Kirmser, Lamastra, Cunningham & Skinner, attorneys; Joseph F. Skinner, of counsel and on the brief; Laura P. Baker, on the brief).
James J. Law argued the cause for respondents G and M Investments, LLC1 and SRMG Enterprises, LLC (Dengler & Lipski, attorneys; James J. Law, of counsel and on the brief).
The opinion of the court was delivered by
GUMMER, J.A.D.
While working as a self-employed elevator mechanic, plaintiff Joseph
Chiaravalloti2 was injured when he fell from an allegedly faulty ladder he was
required to use to access parts of the elevators he was servicing in a building
owned by defendant G&M and leased by defendant Freedom Mortgage
1 In its answer to the complaint, defendant G and M Investments, LLC (G&M) indicated plaintiffs had misidentified defendant in the complaint as "G&M Investments LLC %Suite 3" and "G & M Investments II LLC." 2 Kimberly Chiaravalloti, who is Joseph Chiaravalloti's wife, is also a plaintiff in this case. For ease of reading, we refer to Joseph Chiaravalloti as "plaintiff." A-2965-22 2 Corporation (Freedom). The court granted defendants' summary-judgment
motions, finding defendants were not liable because the fall occurred as a result
of "an operational hazard obvious and visible" to plaintiff that was part of the
work he had been hired to perform. Because the court misapplied a narrow
exception to the general rule imposing liability for the failure to provide a
reasonably safe work place, we reverse those orders and a subsequent order
denying plaintiffs' reconsideration motion.
I.
We draw these facts from the summary-judgment record, "view[ing] the
evidence in the light most favorable to [plaintiffs,] the non-moving part[ies]."
Comprehensive Neurosurgical, P.C. v. Valley Hosp., 257 N.J. 33, 71 (2024)
(first alteration in original) (quoting Qian v. Toll Bros., Inc., 223 N.J. 124, 134-
35 (2015)).
At the time of the accident, plaintiff worked as an elevator mechanic. He
was employed by Advanced Elevator Services, LLC (AES), a company he had
created, owned, and operated. In 2012, AES and G&M entered into an "Elevator
Maintenance Agreement," in which AES agreed to provide maintenance for two
hydraulic passenger elevators located in a building owned by G&M and leased
by Freedom. In the Agreement, AES agreed to provide "periodic examination,
A-2965-22 3 lubrication and adjustment" of certain parts of the elevators and to "make
necessary adjustment and repairs" to certain parts "when conditions warrant."
Paragraph 3 of the Agreement contained a list of items not covered by the
Agreement and for which AES was not responsible, including light fixtures and
lamps. Before the fall, plaintiff serviced the elevators in the building on a
monthly basis.
On March 21, 2019, plaintiff entered the elevator shaft in the building to
perform a maintenance task in the elevator pit area. The elevator pit was located
underneath the elevators below the first floor. To access the elevator pit,
plaintiff had to use an "access ladder" to descend to the bottom of the pit.
According to plaintiff, on the day of the accident while he was "[u]sing the
access ladder provided by the building, an obstruction in the ladder rung caused
the footing on the access ladder to be inadequate which caused [him] to lose
[his] own footing and slip off the access ladder." Plaintiff "held onto the ladder
with [his] right hand and arm only, for as long as [he] could. Then [he] dropped
approximately four feet to the concrete floor below and landed on his feet."
Plaintiff identified the hazardous condition as "an obstruction and a
protrusion including a light fixture. It was also a construction defect." Plaintiff
described the ladder and light fixture as follows:
A-2965-22 4 Approximately two feet below the top of the ladder is a mounting point that they mount this metal ladder to the building beam . . . . Below that, they had mounted . . . prior to our company being there. . . . a light fixture that was mounted in the rung of the ladder under the beam, and that's what caused me not to have proper footing on the ladder.
Plaintiff "had prior problems with the light fixture being in the way."
Plaintiff described the "problems" he had previously experienced descending
into the pit as "[n]ot having proper footing." According to plaintiff, "[w]hen
you're on a ladder, you should be able to place your foot and the ladder rung in
the arch of your foot or just before your heel so you're secure when you move
to the next rung. That light fixture prohibited that." Plaintiff testified "[t]he
light fixture doesn't have to do with the elevator. It has to do with the building
side responsibilities . . . that was a building issue" and that "[a]nything electrical
that has to do with lighting or . . . other unrelated elevator devices, which a light
is not an elevator device, . . . is building responsibility."
Before the fall, plaintiff had reported the problem to "Ryan" and "Steve."
Ryan Kerner was the Freedom employee who normally met with plaintiff on his
visits and signed plaintiff's paperwork. He and Steve Delvisio were part of the
Freedom in-house maintenance crew. Plaintiff also had reported it "on the
paperwork that's signed after every visit." The record contains, for example, an
A-2965-22 5 AES service ticket dated April 28, 2018, with a handwritten note: "Notified
customer of oil & ladder issue." Freedom was identified as the "customer."
Kerner signed that service ticket as the customer.
The record also contains an AES service ticket dated March 21, 2019, the
day of the fall. That ticket indicates plaintiff was at the building to perform
routine service and inspections. A handwritten note on the ticket states: "pit
ladder issues 1 & 2 cars," "unknown" materials were needed to address that
issue, and "notified customer Ryan, Norman." Norman Zeller was the senior
vice president of facilities and corporate real estate for Freedom and was
responsible for maintenance within the building.
On March 19, 2021, plaintiffs filed a complaint against G&M, Freedom,
Archwell Solutions, LLC (Archwell), and SRMG Enterprises, LLC (SRMG).3
They alleged plaintiff, while lawfully present at the building, had "sustained
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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-2965-22
JOSEPH CHIARAVALLOTI and KIMBERLY CHIARAVALLOTI, his wife,
Plaintiffs-Appellants,
v.
FREEDOM MORTGAGE CORPORATION, G&M INVESTMENTS LLC %SUITE3, G&M INV SUITE 3, G AND M INVESTMENTS LLC, and/or G & M INVESTMENTS LLC, G & M INVESTMENTS II LLC, and SRMG ENTERPRISES, LLC,
Defendants-Respondents,
and
ARCHWELL SOLUTIONS LLC,
Defendant. ____________________________
Argued May 1, 2024 – Decided March 3, 2025
Before Judges Gummer and Walcott-Henderson. On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-0814-21.
Richard T. Astorino argued the cause for appellants (Kotlar, Hernandez & Cohen, LLC, attorneys; Richard T. Astorino, of counsel and on the briefs).
Joseph F. Skinner argued the cause for respondent Freedom Mortgage Corporation (Kirmser, Lamastra, Cunningham & Skinner, attorneys; Joseph F. Skinner, of counsel and on the brief; Laura P. Baker, on the brief).
James J. Law argued the cause for respondents G and M Investments, LLC1 and SRMG Enterprises, LLC (Dengler & Lipski, attorneys; James J. Law, of counsel and on the brief).
The opinion of the court was delivered by
GUMMER, J.A.D.
While working as a self-employed elevator mechanic, plaintiff Joseph
Chiaravalloti2 was injured when he fell from an allegedly faulty ladder he was
required to use to access parts of the elevators he was servicing in a building
owned by defendant G&M and leased by defendant Freedom Mortgage
1 In its answer to the complaint, defendant G and M Investments, LLC (G&M) indicated plaintiffs had misidentified defendant in the complaint as "G&M Investments LLC %Suite 3" and "G & M Investments II LLC." 2 Kimberly Chiaravalloti, who is Joseph Chiaravalloti's wife, is also a plaintiff in this case. For ease of reading, we refer to Joseph Chiaravalloti as "plaintiff." A-2965-22 2 Corporation (Freedom). The court granted defendants' summary-judgment
motions, finding defendants were not liable because the fall occurred as a result
of "an operational hazard obvious and visible" to plaintiff that was part of the
work he had been hired to perform. Because the court misapplied a narrow
exception to the general rule imposing liability for the failure to provide a
reasonably safe work place, we reverse those orders and a subsequent order
denying plaintiffs' reconsideration motion.
I.
We draw these facts from the summary-judgment record, "view[ing] the
evidence in the light most favorable to [plaintiffs,] the non-moving part[ies]."
Comprehensive Neurosurgical, P.C. v. Valley Hosp., 257 N.J. 33, 71 (2024)
(first alteration in original) (quoting Qian v. Toll Bros., Inc., 223 N.J. 124, 134-
35 (2015)).
At the time of the accident, plaintiff worked as an elevator mechanic. He
was employed by Advanced Elevator Services, LLC (AES), a company he had
created, owned, and operated. In 2012, AES and G&M entered into an "Elevator
Maintenance Agreement," in which AES agreed to provide maintenance for two
hydraulic passenger elevators located in a building owned by G&M and leased
by Freedom. In the Agreement, AES agreed to provide "periodic examination,
A-2965-22 3 lubrication and adjustment" of certain parts of the elevators and to "make
necessary adjustment and repairs" to certain parts "when conditions warrant."
Paragraph 3 of the Agreement contained a list of items not covered by the
Agreement and for which AES was not responsible, including light fixtures and
lamps. Before the fall, plaintiff serviced the elevators in the building on a
monthly basis.
On March 21, 2019, plaintiff entered the elevator shaft in the building to
perform a maintenance task in the elevator pit area. The elevator pit was located
underneath the elevators below the first floor. To access the elevator pit,
plaintiff had to use an "access ladder" to descend to the bottom of the pit.
According to plaintiff, on the day of the accident while he was "[u]sing the
access ladder provided by the building, an obstruction in the ladder rung caused
the footing on the access ladder to be inadequate which caused [him] to lose
[his] own footing and slip off the access ladder." Plaintiff "held onto the ladder
with [his] right hand and arm only, for as long as [he] could. Then [he] dropped
approximately four feet to the concrete floor below and landed on his feet."
Plaintiff identified the hazardous condition as "an obstruction and a
protrusion including a light fixture. It was also a construction defect." Plaintiff
described the ladder and light fixture as follows:
A-2965-22 4 Approximately two feet below the top of the ladder is a mounting point that they mount this metal ladder to the building beam . . . . Below that, they had mounted . . . prior to our company being there. . . . a light fixture that was mounted in the rung of the ladder under the beam, and that's what caused me not to have proper footing on the ladder.
Plaintiff "had prior problems with the light fixture being in the way."
Plaintiff described the "problems" he had previously experienced descending
into the pit as "[n]ot having proper footing." According to plaintiff, "[w]hen
you're on a ladder, you should be able to place your foot and the ladder rung in
the arch of your foot or just before your heel so you're secure when you move
to the next rung. That light fixture prohibited that." Plaintiff testified "[t]he
light fixture doesn't have to do with the elevator. It has to do with the building
side responsibilities . . . that was a building issue" and that "[a]nything electrical
that has to do with lighting or . . . other unrelated elevator devices, which a light
is not an elevator device, . . . is building responsibility."
Before the fall, plaintiff had reported the problem to "Ryan" and "Steve."
Ryan Kerner was the Freedom employee who normally met with plaintiff on his
visits and signed plaintiff's paperwork. He and Steve Delvisio were part of the
Freedom in-house maintenance crew. Plaintiff also had reported it "on the
paperwork that's signed after every visit." The record contains, for example, an
A-2965-22 5 AES service ticket dated April 28, 2018, with a handwritten note: "Notified
customer of oil & ladder issue." Freedom was identified as the "customer."
Kerner signed that service ticket as the customer.
The record also contains an AES service ticket dated March 21, 2019, the
day of the fall. That ticket indicates plaintiff was at the building to perform
routine service and inspections. A handwritten note on the ticket states: "pit
ladder issues 1 & 2 cars," "unknown" materials were needed to address that
issue, and "notified customer Ryan, Norman." Norman Zeller was the senior
vice president of facilities and corporate real estate for Freedom and was
responsible for maintenance within the building.
On March 19, 2021, plaintiffs filed a complaint against G&M, Freedom,
Archwell Solutions, LLC (Archwell), and SRMG Enterprises, LLC (SRMG).3
They alleged plaintiff, while lawfully present at the building, had "sustained
serious and permanent injuries when he was caused to slip and fall upon a
dangerous condition, . . . as a result of the negligence, carelessness and/or
recklessness of" defendants. G&M and SRMG and Freedom filed answers in
3 Archwell's and SRMG's roles are not clear from the summary-judgment record. Plaintiffs assert in their merits brief that SRMG was the "property manager" of the building; defendants do not dispute that assertion in their responsive briefs. A-2965-22 6 response to the complaint. The court granted Archwell's unopposed summary-
judgment motion in a September 10, 2021 order. Plaintiffs did not appeal from
that order.
Plaintiff's expert witness, William Seymour, submitted a report in which
he opined:
The ladder rung from which [plaintiff] slipped was encumbered by the presence of an [I]-beam, light fixture, and electrical box mounted to it. These prevented him from being able to gain a proper and safe toe hold on the ladder rung as they were too close to the ladder rung and interfered with the placement of his foot on that rung.
Seymour also found, among other things, that the proximity of the electrical box,
light fixture, and I-beam were violations of the American Society of Mechanical
Engineers A 17.1 Safety Code for Elevators. According to Seymour, pit ladders
"are considered part structure of a building and are typically not part of an
elevator service contract." Seymour concluded "the electrical box and light
fixture could have been re-located without significant issue" and "[t]he overall
problem could have been resolved by installation of a retractable type elevator
pit ladder."
Defendants moved for summary judgment. After hearing argument, the
court on March 16, 2023, placed a decision on the record and issued orders
A-2965-22 7 granting defendants' motions "on the basis of the fact that this was an operational
hazard obvious and visible to the invitee under ordinary circumstances, which
was part of or incidental to the very work [plaintiff was] hired to perform." The
court subsequently denied plaintiff's reconsideration motion in a May 12, 2023
order.
Appealing from the summary-judgment and reconsideration orders,
plaintiffs argue they have a right to present their case to a jury because they
established a prima facie case of negligence and plaintiff was an independent
contractor who had no role in creating and was not working on remedying the
hazardous condition at issue, over which defendants had exclusive control.
II.
We review a grant of summary judgment de novo, using the same standard
that governed the trial court's decision. Samolyk v. Berthe, 251 N.J. 73, 78
(2022). That standard requires us to "determine whether 'the pleadings,
depositions, answers to interrogatories and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact
challenged and that the moving party is entitled to a judgment or order as a
matter of law.'" Branch v. Cream-O-Land Dairy, 244 N.J. 567, 582 (2021)
(quoting R. 4:46-2(c)). "To decide whether a genuine issue of material fact
A-2965-22 8 exists, the trial court must 'draw[] all legitimate inferences from the facts in
favor of the non-moving party.'" Friedman v. Martinez, 242 N.J. 449, 472
(2020) (alteration in original) (quoting Globe Motor Co. v. Igdalev, 225 N.J.
469, 480 (2016)). A court should grant summary judgment "[o]nly 'when the
evidence is so one-sided that one party must prevail as a matter of law.'" Petro-
Lubricant Testing Labs., Inc. v. Adelman, 233 N.J. 236, 257 (2018) (quoting
Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)) (internal
quotation marks omitted).
We do not defer to a trial court's legal analysis. Beroski v. Honda Motor
Co., 480 N.J. Super. 379, 387 (App. Div. 2025). "The existence and scope of a
duty is a legal question for the court. . . . We review a trial court's determination
of that question de novo." Buddy v. Knapp, 469 N.J. Super. 168, 188 (App. Div.
2021); see also Clohesy v. Food Circus Supermarkets, Inc., 149 N.J. 496, 502
(1997) (whether a defendant owes a duty and the scope of the duty are questions
of law for the court to decide).
Generally, "[i]n order to prove a claim of negligence, a plaintiff must
demonstrate: '(1) a duty of care, (2) that the duty has been breached, (3)
proximate causation, and (4) injury.'" Underhill v. Borough of Caldwell, 463
N.J. Super. 548, 554 (App. Div. 2020) (quoting Townsend v. Pierre, 221 N.J.
A-2965-22 9 36, 51 (2015)). "A plaintiff bears the burden of proving negligence, . . . and
must prove that unreasonable acts or omissions by the defendant proximately
caused his or her injuries . . . ." Ibid. (citations omitted).
"Whether a person owes a duty of reasonable care toward another turns
on whether the imposition of such a duty satisfies an abiding sense of basic
fairness under all of the circumstances in light of considerations of public
policy." Holm v. Purdy, 252 N.J. 384, 402 (2022) (quoting Hopkins v. Fox &
Lazo Realtors, 132 N.J. 426, 439 (1993)). To determine whether an actionable
duty exists, a court weighs "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." Hopkins, 132 N.J. at 439; see Coleman v. Martinez,
247 N.J. 319, 352-54 (2021) (applying the Hopkins factors). "Once the ability
to foresee harm to a particular individual has been established, . . .
considerations of fairness and policy govern whether the imposition of a duty is
warranted." Olivo v. Owens-Ill., Inc., 186 N.J. 394, 403 (2006).
A landowner or "[a]n occupier of land owes a duty to his invitee to use
reasonable care to make the premises safe." Nielsen v. Wal-Mart Store #2171,
429 N.J. Super. 251, 264 (App. Div. 2013) (quoting Olivo, 186 N.J. at 406)
(internal quotation marks omitted). That the injured person was the employee
A-2965-22 10 of an independent contractor does not relieve the land occupier or owner of its
obligation to make reasonable efforts to make its premises safe. See ibid.
(rejecting the defendant's argument "it had no duty to warn or protect plaintiff
because of his status as an employee of an independent contractor"). "[W]here
the occupier of land[] engages an independent contractor to do work upon his
premises, an employee of the contractor, while executing the work, . . . is an
invitee." Olivo, 186 N.J. at 406 (quoting Gudnestad v. Seaboard Coal Dock Co.,
15 N.J. 210, 219 (1954)). A land occupier has a duty to an employee of an
independent contractor "to provide a reasonably safe work place." Ibid. (quoting
Muhammad v. N.J. Transit, 176 N.J. 185, 199 (2003)).
A land occupier, however, "is under no duty to protect an employee of an
independent contractor from the very hazard created by doing the contract
work." Sanna v. Nat'l Sponge Co., 209 N.J. Super. 60, 67 (App. Div. 1986); see
also Nielsen, 429 N.J. Super. at 264 (quoting Olivo, 186 N.J. at 407) (internal
quotation marks omitted) (acknowledging a "land occupier's 'duty to provide a
reasonably safe working place for employees of an independent contractor does
not relate to known hazards which are part of or incidental to the very work the
contractor was hired to perform'"). The court granted defendants' summary-
A-2965-22 11 judgment motions on the basis of that exception to the general rule imposing
liability for the failure to provide a reasonably safe work place.
But that "exception has a far more limited scope . . . ." Nielsen, 429 N.J.
Super. at 265. As we explained in Nielsen, the exception renders "it unnecessary
for an occupier of land to warn a roofer -- hired to fix a hole in a roof -- about a
hole in the roof," ibid. (citing Rigatti v. Reddy, 318 N.J. Super. 537, 542-43
(App. Div. 1999)), or a roof-truss installer about "the dangers of collapsing roof
trusses," ibid. (citing Dawson v. Bunker Hill Plaza Assocs., 289 N.J. Super. 309,
317-19 (App. Div. 1996)), or a tree-removal contractor about "the dangers of
falling branches," ibid. (citing Cassano v. Aschoff, 226 N.J. Super. 110, 112-14
(App. Div. 1988)).
If this case was about an elevator mechanic injured as a result of the
collapse of an elevator, then the court might have had reason to apply the
exception. But that's not what this case is about. Here, plaintiff alleges he was
injured not because of something he was hired to repair and maintain – the
elevator – but because of a hazardous condition – the ladder, light fixture, and
electrical box mounted to it – he was "not there to repair, but only to traverse in
order to reach another location to be addressed by the service [he] ha [d] agreed
to provide." Ibid.
A-2965-22 12 "Moreover, this exception 'only applies . . . when the landowner does not
retain control over the means and methods of the execution of the project.'" Ibid.
(quoting Olivo, 186 N.J. at 407) (internal quotation marks omitted). Defendants
may not have told plaintiff how to fix and maintain the elevators, but they "did
control plaintiff's route to the locations to be treated." Ibid. Defendants concede
plaintiff had to use the allegedly faulty ladder to reach the elevator pit to perform
his maintenance duties.
"[P]remises liability law can, and should, develop in a manner consistent
with its 'fundamental purpose . . . to deter conduct that creates an unreasonable
risk of injury to others.'" Olivo, 186 N.J. at 402 (quoting Kuzmicz v. Ivy Hill
Apartments, Inc., 147 N.J. 510, 534-35 (1997) (Stein, J., dissenting)). Viewing
the evidence in the light most favorable to plaintiffs, a reasonable factfinder
could conclude defendants required plaintiff to "traverse" a dangerous ladder to
access an area he had contracted to maintain. Nielsen, 429 N.J. Super. at 265.
Use of a faulty ladder is not inherently part of an elevator mechanic's job. To
the contrary, he shouldn't have had to use a faulty ladder to do his job. Applying
the general principles of tort liability to those facts, the risk of injury to someone
like plaintiff is foreseeable and the imposition of a duty under these
A-2965-22 13 circumstances is consistent with the "abiding sense of basic fairness" that is the
cornerstone of our tort system. Hopkins, 132 N.J. at 439.
In sum, the court erred in applying the limited exception to the general
rule imposing liability for failing to provide a safe work place and, consequently,
erred in granting defendants' summary-judgment motions and denying plaintiff's
reconsideration motion. Accordingly, we reverse the March 16, 2023 summary-
judgment orders and the May 12, 2023 reconsideration order.
Reversed and remanded for further proceedings consistent with this
opinion. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
Clerk of the Appellate Division
A-2965-22 14