TIMOTHY MAHONEY VS. UNION PAVING & CONSTRUCTION COMPANY, INC. VS. DMJ INDUSTRIAL SERVICES, LLC (L-0433-17, HUDSON COUNTY AND STATEWIDE)

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0115-19T2

TIMOTHY MAHONEY,

Plaintiff-Appellant,

v.

UNION PAVING & CONSTRUCTION COMPANY, INC.,

Defendant/Third-Party Plaintiff-Respondent,

DMJ INDUSTRIAL SERVICES, LLC and LEADING EDGE SAFETY & HEALTH, LLC,

Third-Party Defendants. ________________________________

Argued telephonically August 4, 2020 - Decided August 26, 2020

Before Judges Rothstadt and Firko.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-0433-17. Douglas D. Burgess argued the cause for appellant (Icaza, Burgess & Grossman, PC, attorneys; Douglas D. Burgess, of counsel; Randi S. Greenberg, on the brief).

Adam J. Adrignolo argued the cause for respondent (McElroy, Deutsch, Mulvaney & Carpenter, LLP, attorneys; Adam J. Adrignolo, of counsel and on the brief; Francis W. Yook, on the brief).

PER CURIAM

Plaintiff Timothy Mahoney appeals from an August 2, 2019 order granting

summary judgment in favor of defendant Union Paving and Construction

Company, Inc. (Union Paving). We affirm.

I.

In reviewing the grant of a motion for summary judgment, we "must

accept as true all the evidence which supports the position of the party defending

against the motion and must accord [that party] the benefit of all legitimate

inferences which can be deduced therefrom." Brill v. Guardian Life Ins. Co. of

Am., 142 N.J. 520, 540 (1995) (citations omitted). Accordingly, we relate the

facts as admitted by the parties and as proffered by plaintiff, based upon the

deposition testimony and other documentary evidence, including his expert's

report.

On January 15, 2016, plaintiff, a journeyman ironworker and union

member, was injured on a construction site in Bayonne when a steel enforcement

A-0115-19T2 2 cage used to support concrete pillars rolled onto him. At the time of his accident,

plaintiff was employed by DMJ Industrial Services (DMJ), an ironworking

subcontractor. Union Paving was the general contractor overseeing the project.

On April 2, 2015, Union Paving and DMJ executed a subcontract for the

project, which identified Union Paving as the contractor; DMJ as the

subcontractor; and the New Jersey Turnpike Authority as the owner. The project

entailed construction of ramps and bridges in order to alleviate traffic at

Interchange 14A. According to the subcontract, DMJ's scope of work included

rebar installation and caisson frame assembly. Plaintiff testified that a caisson

frame is used to support a highway exit or entry ramp and he had worked on

such frames in the past.

In pertinent part, the subcontract states that DMJ "has investigated the

nature, locality and site of the [s]ubcontract [w]ork and the conditions and

difficulties, if any, under which [the work] is to be performed, and assumes all

risks therefrom." DMJ executed the subcontract "on the basis of its own

examination, investigation and evaluation . . . ."

The subcontract obligated DMJ to furnish all materials, equipment, tools,

labor and competent supervision in the performance of its duties. DMJ was

required to "keep the building and premises free from . . . unsafe conditions

A-0115-19T2 3 resulting from the [s]ubcontractor's [w]ork . . . ." The terms of the subcontract

delegated all rebar installation and caisson frame assembly work to DMJ.

On January 13, 2016, DMJ commenced work on the project. Two days

later, plaintiff, along with other DMJ workers and DMJ's foreman, Jeff Coggins,

assembled a cylindrical caisson frame and attached steel rebar to the frame. The

caisson is covered with concrete and reinforces a concrete pillar buttressing a

highway extension. At his deposition, plaintiff described the method of adding

support to wedge an object and prevent it from rolling as the "chocking method."

Coggins testified at his deposition that the chocking method was the standard

practice for assembly of the caisson and comported with safety protocols.

Coggins, a seasoned ironworker, instructed plaintiff and DMJ employees

on installation of the caisson frame on the date of the accident. After unloading

the caissons from a flatbed truck, Coggins directed plaintiff and DMJ employees

to move them using a shackle, strap, and choker. The frame became top heavy

and rolled resulting in plaintiff's injuries. Plaintiff testified there was no

discussion about implementing a dunnage 1 safety precaution even though the

requisite materials were available at the jobsite.

1 Plaintiff described dunnage as typically consisting of a piece of wooden board. A-0115-19T2 4 Travis Carey, a Union Paving project manager, testified that DMJ was

responsible for assembly of the frames and Union Paving had no foreman

present. In an accident investigation report authored by Union Paving, the

"cause" of the accident was identified as: "[w]eight of the straight rebar on top

of the rebar cage caused the cage to shift, which in effect caused it to roll . . . ."

The report also stated the "preventive action" as: "[e]mployees were instructed

to build cages on top of dunnage and use wedges to prevent rolling," and "DMJ's

employees did not have any dunnage or wedges on the bottom of the rebar cage

to prevent rolling."

The report also indicated that Union Paving offered an operator to assist

in assembling the frame but DMJ declined the offer. Therefore, there were no

Union Paving employees present or assisting DMJ at the time of the accident.

DMJ's authored incident report described the cause of the accident as,

"[i]nsufficient ground preparation and precautionary bracing of cage to prevent

rolling/shifting." DMJ's report also noted to "add a chock underneath the cage

to prohibit the possibility of any unwanted movement." Plaintiff contends that

Union Paving failed to ensure DMJ created its own Safety and Health Plan.

A-0115-19T2 5 Following plaintiff's accident, the Bayonne police arrived at the scene and

notified OSHA.2 An investigation was conducted by OSHA against DMJ but

not Union Paving. Plaintiff sued Union Paving alleging negligence. Union

Paving filed a motion for summary judgment.

After hearing arguments, the Law Division judge granted Union Paving's

motion for summary judgment on August 2, 2019. In his written opinion, the

judge found Union Paving employees were not assisting DMJ at the time of

plaintiff's accident, "nor were they even allowed to." The judge noted, "[i]t was

unforeseeable that [p]laintiff would fail to properly use dunnage or wedges on

the bottom of the rebar cage to prevent rolling, as he had previously don e in the

past. Therefore, it was not foreseeable that [p]laintiff would fail to do so here."

The judge stated plaintiff was a "well-trained, experienced ironworker"

who was "familiar with 'chocking.'" Citing Muhammad v. N.J. Transit, 176 N.J.

185, 199 (2003), the judge concluded Union Paving "did not have a duty to

protect DMJ from a hazard created by the performance of the contract work, and

2 Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651 to 678.

A-0115-19T2 6 should be absolved of any liability." A memorializing order was entered and

this appeal ensued. 3

On appeal, plaintiff argues that the trial court erred in granting summary

judgment to Union Paving because as a general contractor, Union Paving owed

a non-delegable duty to subcontractor employees to assure safe work practices.

II.

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). Under Brill, "a determination [of] whether there exists a 'genuine

issue' of material fact that precludes summary judgment requires the [court] to

consider whether the competent evidential materials presented, when viewed in

the light most favorable to the non-moving party, are sufficient to permit a

rational factfinder to resolve the alleged disputed issue in favor of the non-

moving party." 142 N.J. at 540.

3 On August 14, 2019, plaintiff executed a stipulation of dismissal without prejudice as to the remaining claims against DMJ. A-0115-19T2 7 Because "appellate courts 'employ the same standard [of review] that

governs the trial court[,]'" we review these determinations de novo, and the "trial

court rulings 'are not entitled to any special deference.'" Henry v. N.J. Dep't of

Human Servs., 204 N.J. 320, 330 (2010) (alteration in original) (citations

omitted).

Plaintiff argues that Union Paving retained control over the subcontractors

at the site. The expert report submitted by plaintiff's expert, Howard Tepper,

opined that Union Paving "violated numerous OSHA regulations" and standards

applicable to a general contractor on a multi-employer worksite. Tepper also

opined that Union Paving failed to properly inspect and monitor the delivery of

the steel and breached its duty to ensure subcontractors, such as DMJ, were

proceeding pursuant to a Site Specific Safety Plan.

The immunity of a general contractor or landowner "[is not] disturbed by

the exercise of merely such general superintendence as is necessary to insure

that the []contractor performs his agreement . . . ." Muhammad, 176 N.J. at 199

(alterations in original) (quoting Wolczak v. Nat'l Elec. Products Corp., 66 N.J.

Super. 64, 71 (App. Div. 1961)); accord Tarabokia v. Structure Tone, 429 N.J.

Super. 103 (App. Div. 2012). Liability is "not warranted where the . . .

'supervisory interest relates [only] to the result to be accomplished, not to the

A-0115-19T2 8 means of accomplishing it.'" Mavrikidis v. Petullo, 153 N.J. 117, 135 (1998)

(second alteration in original) (quoting Majestic Realty Assocs., Inc. v. Toti

Contracting Co., 30 N.J. 425, 431 (1959)).

Even under plaintiff's version of events, Union Paving did not control the

means or methods of DMJ's work. No evidence shows Union Paving instructed

plaintiff or DMJ personnel on rebar installation and caisson frame assembly. To

the contrary, the record is clear that the subcontract between the parties fully

delegated the work to DMJ, who was required to furnish labor, materials, and

"competent supervision."

Thus, Union Paving did not engage in "direct interference which

proximately cause[d] injury to the employees of the subcontractor." Wolczak,

66 N.J. Super. at 71; see Muhammad, 176 N.J. at 197. We recognize that if a

general contractor or landowner generally retains control of the manner and

means of doing the work, he "is responsible for the negligence of the

independent contractor even though the particular control exercised and its

manner of exercise had no causal relationship with the hazard that led to the

injury . . . ." Mavrikidis, 153 N.J. at 135. As set forth above, Union Paving did

not retain such control. Plaintiff has failed to proffer any evidence that Union

Paving exercised control over plaintiff or DMJ's work.

A-0115-19T2 9 An employer that hires an independent contractor is not liable for the

negligent acts of the contractor in the performance of the contract. Bahrle v.

Exxon Corp., 145 N.J. 144, 156 (1996). The principal is not vicariously liable

for the torts of the independent contractor if the principal did not direct or

participate in them. Baldasarre v. Butler, 132 N.J. 278, 291 (1993). "[W]here

a person engages a contractor, who conducts an independent business by means

of his own employees, to do work not in itself a nuisance . . . he is not liable for

the negligent acts of the contractor in the performance of the contract." Majestic

Realty, 30 N.J. at 430-31. As set forth above, Union Paving did not retain such

control.

As aptly pointed out by the judge, plaintiff's accident was "proximately

caused by DMJ's failure to properly secure the caisson frame with dunnage or

other chocking material," and "the means and methods of performing the DMJ

[w]ork were delegated to DMJ under the parties' [s]ubcontract." Accordingly,

Union Paving is not liable under Muhammad.

Finally, plaintiff asserts Union Paving failed to create a Site Specific

Safety Plan to address the construction of the caisson frames. In his report,

plaintiff's expert surmised that Union Paving was a "creating employer," a

A-0115-19T2 10 "correcting employer," a "controlling employer," and an "exposing employer,"

as defined by OSHA. We are unpersuaded by plaintiff's argument.

Here, there was no evidence that Union Paving committed any OSHA

violations. Indeed, OSHA conducted an investigation of DMJ and declined to

investigate Union Paving. The record supports the judge's finding that Union

Paving hired Leading Edge, Safety & Health Department to perform a "safety

inspection" at the jobsite. Accordingly, Union Paving is not liable. Therefore,

the judge properly granted Union Paving's motion for summary judgment.

We conclude that plaintiff's remaining arguments—to the extent we have

not addressed them—lack sufficient merit to warrant any further discussion in a

written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

A-0115-19T2 11