NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0863-24
KEMAL BECIRAGIC and ALICJA M. KOCHANSKA BECIRAGIC,
Plaintiffs-Appellants,
v.
BLUE BLADE STEEL CORP.1 and J.H. SHAW REALTY,
Defendants-Respondents,
and
FENTON CONSTRUCTION CO., INC. and UNITED SAFETY LLC,
Defendants.
Argued May 7, 2026 – Decided August 6, 2026
Before Judges Marczyk and Puglisi.
1 Improperly pled as Blue Blade Corp. On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-0431-22.
Timothy J. Foley argued the cause for appellants (McHugh & Imbornone, PA, and Foley & Foley, attorneys; Salvatore Imbornone, Jr., Bryan R. Gavin, Timothy J. Foley, and Sherry L. Foley, of counsel and on the briefs).
Peter J. Dahl argued the cause for respondents (Law Office of James H. Rohlfing, attorneys; Peter J. Dahl, on the brief).
Plaintiffs Kemal Beciragic 2 and Alicja M. Kochanska Beciragic appeal
from an October 7, 2024 order granting summary judgment to defendants Blue
Blade Steel Corp. (Blue Blade) and J.H. Shaw Realty (Shaw) (collectively,
defendants), dismissing their complaint seeking damages for injuries sustained
when plaintiff fell from a roof. We affirm.
Shaw owns a commercial building in Kenilworth, which is leased and
occupied by Blue Blade, a steel manufacturer. In October 2020, a fire damaged
the building's roof. Blue Blade hired defendant Fenton Construction Co., Inc.
(Fenton), a roofing contractor, to repair the roof and support structures , but the
insurance investigation revealed the roof contained asbestos. Blue Blade then
2 Because the facts in this opinion only concern Kemal Beciragic, we refer to him individually as plaintiff. A-0863-24 2 hired United Safety LLC (United Safety) to perform asbestos remediation on the
roof. Plaintiff was employed by United Safety as a laborer.
Fenton and United Safety regularly coordinated with each other during the
project, as the latter's asbestos removal impacted the former's repair of the roof.
The damage to the roof and structure was extensive, so Blue Blade retained other
contractors to assist with various aspects of the restoration. While the repairs
were taking place, Blue Blade continued its business operations in the building.
Fenton's responsibilities included constructing a new metal roof system
and installing new wall panels. It hired a subcontractor to remove damaged steel
and install new structural steel and roof members. It also engaged an engineer
to review the structure and a supplier for the new roof system.
The building had multiple roofs of varying heights, and the contractors
did not construct scaffolding because it would have interfered with Blue Blade's
operations on the floor below. Fenton's President and Chief Executive Officer
(CEO) suggested constructing a temporary platform on top of a bridge crane to
act as a safety platform for the workers in case of a fall. With the agreement of
Blue Blade and United Safety, Fenton built the temporary platform on a bridge
crane below the highest section of the roof, which served as both fall protection
for Fenton and United Safety employees and a loading deck for work on the
A-0863-24 3 upper roof. The platform only served the higher roof section, and there was no
similar fall protection discussed or installed on the lower section of the roof ,
which is where plaintiff's accident occurred.
Fenton's CEO explained in his deposition he suggested the platform to
Blue Blade and United Safety, both of which "agreed it was a great idea." He
also stated Fenton and United Safety "had their own responsibility for safety"
for their employees and equipment, other than the agreement regarding the
platform.
In April 2021, when the project was approaching its conclusion, plaintiff
and three co-workers were returning from a break to the lower roof. 3 Contrary
to his supervisor's instruction, plaintiff was not wearing a harness or other safety
equipment. Plaintiff explained he ignored the fall protection mandate because
he believed the equipment "hinder[ed] and block[ed them] from doing [the] job
properly because when [they] are wearing that, [they] can get entangled in it and
then have greater problems." As plaintiff crossed the roof, it collapsed beneath
him. He fell to a concrete floor approximately eighteen feet below, which
resulted in severe and permanent injuries.
3 The record contains conflicting statements regarding whether plaintiff was actively removing parts of the roof, walking to the work area, or going to get his harness when the accident occurred. A-0863-24 4 Plaintiffs sued Shaw and Blue Blade as the owner and occupant of the
building, respectively, and as general contractors for the restoration project.
United Safety was named as a defendant for discovery purposes only. Plaintiffs
filed an amended complaint adding Fenton as a defendant but later resolved
these claims. After engaging in discovery, defendants moved for summary
judgment.
Defendants contended they were entitled to summary judgment because
plaintiff "was aware [the building] was fire damaged," and, although he was
advised he should use fall protection gear, he chose not to do so. They disputed
acting as the general contractor, pointing to testimony from United Safety's
onsite supervisor indicating defendants did not directly manage the work or
instruct how the work should be done.
In opposition, plaintiffs argued Blue Blade was responsible for oversight
and coordination of the project and did nothing to remediate Occupational
Safety and Health Administration (OSHA)4 violations and other safety issues.
They asserted Blue Blade hired various subcontractors to perform the demolition
4 OSHA enforces health and safety standards in the workplace and "requires employers to comply" with those standards "through inspections and investigations," with violators facing both civil and criminal penalties. Gonzalez v. Ideal Tile Importing Co., 371 N.J. Super. 349, 359 (App. Div. 2004) (citing 29 U.S.C. §§ 654-55, 657, 666). A-0863-24 5 and construction work for the project but failed to allocate specific safety
responsibilities to them. In their view, Blue Blade made a conscious decision
to participate in providing the platform as fall protection for one area of the roof,
but not where plaintiff and other United Safety workers were required to work.
Because Blue Blade failed to satisfy any of the applicable regulatory
requirements and did not ensure any other party complied with those
requirements, plaintiffs claimed Blue Blade was directly responsible for the
injuries resulting from the fall.
In an August 28, 2024 written opinion granting defendants' motion, the
court reasoned regardless of whether defendants were viewed as the owner and
occupier of the premises or as a general contractor for the restoration work, they
were relieved of any duty owed to plaintiffs because they disclosed the defect
and the foreseeable danger on the property to plaintiff's employer, United
Safety.
The court explained "[p]laintiff was injured doing the very work he was
contracted to perform," and defendants "did not retain control over the means
and methods of the execution of the project." Additionally, "[defendants] had
the right to assume . . . United Safety, and consequently [plaintiff], possessed
A-0863-24 6 sufficient skill to recognize the degree of danger involved and adjust their
methods of work accordingly."
Citing Wolczak v. National Electric Products Corp., 66 N.J. Super. 64, 71
(App. Div. 1961), the court noted even "if [defendant]s were the general
contractors for the subject project," they would not be liable for injuries suffered
by employees of the subcontractor due to "the condition [of] the premises or the
manner in which the work is performed." The court also determined, pursuant
to Olivo v. Owens-Illinois, Inc., 186 N.J. 394, 406-07 (2006), defendants did
not owe a duty to plaintiff because the condition of the roof was "a known
danger," and United Safety was hired "to perform a specific task in respect of
the hazard itself" without defendants' direct oversight and control.
Finally, the court discussed plaintiff's evidence of OSHA violations,
finding them "not dispositive" as they were "only a factor in the analysis" which
did not, "in itself, establish a duty of care." Relying on Alloway v. Bradlees,
Inc., 157 N.J. 221, 230 (1999), the court explained "the determination of a duty
on the part of a general contractor is based on general negligence principles such
as '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. '"
After considering these principles, the court determined "there [was] no genuine
A-0863-24 7 issue of material fact that [defendant]s cannot be held liable for [plaintiff 's]
injuries, and [defendants] are entitled to judgment as a matter of law."
Plaintiffs raise three issues on appeal. First, they contend the trial court
should not have granted summary judgment to defendants because there were
multiple disputed issues of material fact regarding the duty they owed to plaintiff
while he was working on the property. Second, they insist the court erred by
holding defendants did not exercise control over the project. Third, plaintiffs
assert the court wrongfully applied the inherent danger exception to liability for
an independent contractor by finding plaintiff's fall from the roof was a
foreseeable risk when plaintiff was hired to make certain repairs to the roof.
We review de novo a trial court's ruling on a motion for summary
judgment, "applying the same standard used by the trial court." Samolyk v.
Berthe, 251 N.J. 73, 78 (2022). A motion for summary judgment must be
granted "if 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." R. 4:46-2(c).
The court must decide whether "there is [a] genuine issue as to any
material fact" when the evidence is "viewed in the light most favorable to the
A-0863-24 8 non-moving party." Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 405-
06 (2014) (first quoting R. 4:46-2(c); and then quoting Brill v. Guardian Life
Ins. Co. of Am., 142 N.J. 520, 540 (1995)). "The court's function is not 'to weigh
the evidence and determine the truth of the matter but to determine whether there
is a genuine issue for trial.'" Rios v. Meda Pharm., Inc., 247 N.J. 1, 13 (2021)
(quoting Brill, 142 N.J. at 540).
"If there is no genuine issue of material fact, we must then 'decide whether
the trial court correctly interpreted the law.'" DepoLink Ct. Reporting & Litig.
Support Servs. v. Rochman, 430 N.J. Super. 325, 333 (App. Div. 2013) (quoting
Massachi v. AHL Servs., Inc., 396 N.J. Super. 486, 494 (App. Div. 2007)). On
de novo review, "[a] trial court's interpretation of the law and the legal
consequences that flow from established facts are not entitled to any special
deference." Rowe v. Bell & Gossett Co., 239 N.J. 531, 552 (2019) (alteration
in original) (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140
N.J. 366, 378 (1995)).
"The fundamental elements of a negligence claim are a duty of care owed
by the defendant to the plaintiff, a breach of that duty by the defendant, injury
to the plaintiff proximately caused by the breach, and damages." Coleman v.
Martinez, 247 N.J. 319, 337 (2021) (quoting Robinson v. Vivirito, 217 N.J. 199,
A-0863-24 9 208 (2014)). Negligence is never presumed, and the burden of proving it is on
the plaintiff. Buckelew v. Grossbard, 87 N.J. 512, 525 (1981). "Whether a
defendant owes a legal duty to another and the scope of that duty are generally
questions of law for the court to decide." G.A.-H v. K.G.G., 238 N.J. 401, 414
(2019) (quoting Robinson, 217 N.J. at 208).
The type of duty owed to a plaintiff "is determined by the circumstance
that brought [them] to the property." Filipowicz v. Diletto, 350 N.J. Super. 552,
558 (App. Div. 2002). Applicable here, a business invitee is an individual who
is "invited on the premises for purposes of the owner that often are commercial
or business related." Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 433 (1993).
Generally, a landholder owes to business invitees a duty of reasonable care "to
guard against any dangerous conditions on [the] property that the owner either
knows about or should have discovered." Id. at 434. "That standard of care
encompasses the duty to conduct a reasonable inspection to discover latent
dangerous conditions." Ibid.
Ordinarily, a general contractor "is not liable for injuries to employees of
the [sub]contractor resulting from either the condition to the premises or the
manner in which the work is performed." Muhammad v. N.J. Transit, 176 N.J.
185, 199 (2003) (quoting Wolczak, 66 N.J. Super. at 71). "The premise
A-0863-24 10 underlying that approach is that a general contractor 'may assume that the
independent 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.'" Tarabokia v. Structure Tone, 429 N.J. Super. 103,
113 (App. Div. 2012) (quoting Accardi v. Enviro-Pak Sys. Co., 317 N.J. Super.
457, 463 (App. Div. 1999)). In this context, there is no duty of care based solely
on a violation of OSHA regulations. Alloway, 157 N.J. at 236. Rather, a general
contractor's duty of care is determined under "general negligence principles," id.
at 230, with OSHA violations as one factor in that analysis. Tarabokia, 429 N.J.
Super. at 112.
Similarly, "the law carves out an exception to the requirement that
premises be made safe for an independent contractor when the contractor is
invited onto the land to perform a specific task in respect of the hazard itself. "
Olivo, 186 N.J. at 406-07. In this context, duty "does not entail the elimination
of operational hazards which are obvious and visible to the invitee upon ordinary
observation and which are part of or incidental to the very work the contractor
was hired to perform." Sanna v. Nat'l Sponge Co., 209 N.J. Super. 60, 67 (App.
Div. 1986).
A-0863-24 11 "'[T]he general principle is that the landowner is under no duty to protect
an employee of an independent contractor from the very hazard created by the
doing of the contract work,' provided that the landowner does not retain control
over the means and methods of the execution of the project." Muhammad, 176
N.J. at 198 (alteration in original) (quoting Gibilterra v. Rosemawr Homes, 19
N.J. 166, 170 (1955)). However, this exception does not apply "where the land
occupier fails to warn of a hazardous condition that the independent contractor
is not there to repair, but only to traverse in order to reach another location to
be addressed by the service the independent contractor has agreed to provide."
Nielsen v. Wal-Mart Store No. 2171, 429 N.J. Super. 25l, 265 (App. Div. 2013).
The operative issue here is whether defendants had a duty to plaintiff to
ensure his safety during the renovation project. Under the prevailing case law
regarding landowners, defendants owed and breached a duty to plaintiff if there
was a latent defect they knew or should have known about but failed to warn
plaintiff. Neither is the case here. The record reflects defendants knew of the
structural issues with the roof caused by the fire and communicated these issues
to United Safety. Plaintiff's supervisor, who directed his work, knew there had
been fire damage to the roof. The supervisor inspected the roof prior to the
project's start and found it "wasn't in very good shape." United Safety
A-0863-24 12 implemented safety measures, which included using the platform and mandating
its employees wear harnesses. In addition to United Safety's clear knowledge
of the dangerous condition, plaintiff also testified he was personally aware of
fire damage to the roof. Thus, defendants discharged their duty to warn under
general premises liability principles.
We briefly address whether Blue Blade was acting as a general contractor.
The trial court found Blue Blade was not a general contractor because, other
than contracting for the project, Blue Blade did not actively oversee the work,
supply materials, or provide guidance in how the work should be completed.
We discern no reason to disturb this finding.
However, even if defendants were considered general contractors for the
project, they are nevertheless not liable to plaintiff because his injuries resulted
from the known conditions of the property and the work itself. United Safety
was aware of the "hazards attendant to removing asbestos from" the damaged
roof, and "[t]he absence of any dispute that [United Safety] knew of the roof's
condition makes this matter appropriate for summary judgment." Muhammad,
176 N.J. at 199. Plaintiffs attempt to distinguish the asbestos removal work
plaintiff was completing from the roof repair, arguing defendants were "aware
of the danger presented" by the damaged roof and "failed" to control operations
A-0863-24 13 in a safe manner by permitting various OSHA violations to continue unabated,
including allowing United Safety to work on the damaged roof. This argument
is unpersuasive, primarily because both United Safety and plaintiff admit to
being aware of the roof damage.
Furthermore, because the asbestos was in the same area of the roof as the
structural damage and had to be removed before repairs were completed, the
damage was "incidental to the very work" United Safety was hired to address.
See Sanna, 209 N.J. Super. at 67. For the same reasons, whether plaintiff was
actively removing asbestos from the roof, traversing it to get his harness, or
walking to the work area when he fell does not alter the outcome. In any case,
he was on the damaged roof, which he was hired to remediate, when the accident
occurred.
Plaintiffs contend the alleged OSHA violations at the site demonstrate
disputed material facts that should preclude summary judgment. The Supreme
Court in Alloway held "OSHA regulations are pertinent in determining the
nature and extent of any duty of care," but "the violation of OSHA regulations
without more does not constitute the basis for" a negligence action. 157 N.J. at
236. Moreso, plaintiffs' reliance on Alloway is misplaced because, as we
A-0863-24 14 previously noted, we are unpersuaded defendants were acting as general
contractors for the project.
Liability may nevertheless attach if a landowner "retains control over the
means and methods of the execution of the project." Muhammad, 176 N.J. at
198. Plaintiff argues this issue created a factual dispute for the jury, pointing to
the testimony of a Blue Blade employee who "was responsible for coordinating
the project through Fenton and . . . United Safety." We are unconvinced because
the employee only gave United Safety direction to "take care of the remediation
of the asbestos." The parameters of the job, including Blue Blade's requirement
to remain operational in the building, merely constituted job specifications, not
the means and methods by which United Safety were required to perform its
work.
This conclusion is supported by the testimony of United Safety's project
supervisor, who verified defendants were not directly involved in the operation
of the project. He testified defendants did not "tell United Safety . . . how to do
the asbestos remediation or removal or demolition" or instruct United Safety
"how the work should be done." Plaintiff also confirmed he only took
instructions from his supervisor, and the tools and equipment he used for the job
were provided by United Safety.
A-0863-24 15 Thus, the record supports the trial court's determination defendants did
not engage in significant oversight of the project. Instead, they reasonably
assumed United Safety and plaintiff were "sufficiently skilled to recognize the
dangers associated with their task and adjust their methods accordingly to ensure
their own safety." Tarabokia, 429 N.J. Super. at 113 (quoting Accardi, 317 N.J.
Super. at 463).
Affirmed.
A-0863-24 16