Fernandes v. Dar Development Co. (073001)

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized).
Rolando Fernandes v. DAR Development Corp. (A-37-13) (073001)
Argued October 7, 2014 -- Decided July 28, 2015
CUFF, P.J.A.D. (temporarily assigned), writing for a unanimous Court.
In this appeal, the Court considers whether the comparative negligence of an employee injured in a
workplace accident may be submitted to the jury.
In October 2004, as Rolando Fernandes (plaintiff) and his boss, Mario Freitas (Mario) were installing a
sewer pipe at a residential construction site, the wall of the trench in which they were working collapsed, burying
plaintiff to his chest. Plaintiff filed a complaint against the general contractor, DAR Development Corp. and DAR
Construction, Inc. (collectively DAR or defendant), seeking compensatory damages. The parties agreed that the
accident would not have occurred had the trench been outfitted with safety devices, but disputed whether DAR or
plaintiff’s employer, C. Freitas Plumbing and Heating, Inc. (Frietas), bore the responsibility for taking those
precautions.
At trial, plaintiff testified that, throughout his career, he had completed numerous pipe installations and that
Freitas did not utilize trench protection systems. On cross-examination, he acknowledged that, at his deposition, he
had testified that Freitas did use trench protection in some places. Plaintiff explained this contradiction by
specifying that Freitas never had a trench box, but rather used a brace constructed of plywood to prevent cave-ins.
Mario testified that, more than a year before the accident, Freitas had purchased three sets of trench boxes certified
by the Occupational Safety and Health Administration (OSHA). Thereafter, Freitas conducted employee meetings
regarding trench safety and proper use of the boxes. On cross-examination, Mario admitted that he had no formal
OSHA training, acknowledged that Freitas had no established health and safety protocol, and asserted that DAR did
not require one.
Plaintiff’s expert testified that DAR was the controlling employer on the jobsite, and was, therefore,
required to hire safe subcontractors, ensure that subcontractors designated a competent person to enforce OSHA
regulations, and monitor the work for safety compliance. The expert opined that DAR increased its profits by hiring
unscrupulous subcontractors who did not adhere to OSHA standards. Defendant’s expert testified that as the sewer
trench approached the house, it converged with an area previously excavated to permit installation of a gas line. The
gas line trench, which was approximately two to three feet wide, was backfilled with sand to support the line and
prevent it from rupturing. He opined that plaintiff’s accident occurred because the sewer trench came too close to
the gas line trench.
At the charge conference, DAR requested a comparative negligence charge. Plaintiff responded that, as a
matter of public policy, comparative negligence had no place in a workplace injury trial dealing with injuries
sustained by a worker while performing his assigned task. He also claimed that the evidence did not suggest that he
proceeded unreasonably in the face of a known risk. The trial court denied DAR’s request and the jury returned a
unanimous verdict in favor of plaintiff.
Defendant appealed, asserting that the trial court’s refusal to charge comparative negligence constituted
reversible error. In an unpublished opinion, the Appellate Division determined that the trial court properly denied a
comparative negligence charge because defendant “failed to present competent evidence that at the time of the
accident, plaintiff voluntarily and unreasonably proceeded in the face of a known danger -- which is the standard
against which an injured construction worker’s conduct is measured.” In reaching that conclusion, the Appellate
Division cited Kane v. Hartz Mountain Industries, Inc., 278 N.J. Super. 129 (App. Div. 1994), aff’d o.b., 143 N.J.
141 (1996), and Suter v. San Angelo Foundry & Machine Co., 81 N.J. 150 (1979) and its progeny, a line of cases
traditionally applied to products liability matters. Defendant petitioned for certification, limited to the comparative
negligence issue. This Court granted defendant’s petition. 216 N.J. 86 (2013).
HELD: In negligence claims by injured workers against third parties, there is no sound reason to depart from settled
precedent that an employee’s negligence may be submitted to the jury when evidence has been adduced that the injured
employee unreasonably confronted a known risk and had no meaningful choice in the manner in which he completed
the task. Here, the evidence produced at trial provided no basis to submit the issue of plaintiff’s negligence to the jury.
1. To prevail on a claim of negligence, a plaintiff must establish: (1) that the defendant owed a duty of care; (2) that
the defendant breached that duty; (3) actual and proximate causation; and (4) damages. In ordinary negligence
actions it is sufficient for the plaintiff to show what the defendant did and what the circumstances were. The
applicable standard of conduct is then supplied by the jury, which is competent to determine what precautions a
reasonably prudent man in defendant’s position would have taken. However, where the collective experience of the
jury is not sufficient to measure the defendant’s conduct, the plaintiff must establish the standard of care governing
the defendant’s conduct and the deviation from that standard through reliable expert testimony. Claims involving
workplace accidents commonly fall into the category in which the plaintiff must produce reliable expert testimony to
establish the standard of care and to explain how the defendant’s actions departed from that standard. (pp. 16-18)
2. OSHA has promulgated mandatory occupational safety and health standards to help ensure safe working
conditions for all employees. Relevant in this appeal, the regulations permit general contractors and subcontractors
to make their own agreements with regard to the division of labor. OSHA has also adopted regulations that
specifically govern excavations, including trenches associated with the installation of utilities. OSHA regulations
are pertinent in determining the nature and extent of any duty of care, however, a violation of such a standard is no
more than evidence of negligence. Noncompliance with an industry standard does not conclusively establish
negligence. (pp. 18-19)
3. Under common law, a defendant could raise a plaintiff’s contributory negligence as an affirmative defense to
liability. This doctrine served to bar recovery by a plaintiff whose fault, no matter how slight, contributed to the
accident. In 1973, the Legislature adopted the Comparative Negligence Act (the CNA) to reduce the harshness of
the contributory negligence doctrine. Under the theory of comparative negligence, the injured party is permitted to
recover if his or her negligence was not greater than the negligence of the person against whom recovery is sought,
or the combined negligence of the persons against whom recovery is sought. This rule extends to an employee who
is injured in a workplace accident and sues a third person in an ordinary negligence action. A jury may consider a
plaintiff’s negligence only when the evidence adduced at trial suggests that the plaintiff was somehow negligent and
that negligence contributed to the plaintiff’s damages. (pp. 19-23)
4. In Suter, this Court held that a plaintiff’s comparative negligence could not be considered when the plaintiff, an
employee in an industrial setting, was injured while using a defective machine in an intended or reasonably
foreseeable manner. In Kane, the Appellate Division rejected the contention that Suter and its progeny bar
submission of an injured employee’s negligence actions against third parties. Nevertheless, plaintiff argues that this
Court should extend the Suter rule to negligence actions based on workplace injuries at large. The principles of
Suter remain sound as applied to cases in which an employee is injured when using a defective piece of equipment
in a reasonable and foreseeable manner to complete his assigned task. The Court expressly affirms Kane and
disapproves of the Appellate Division’s analysis of the issue in this appeal to the extent it suggests that the Suter rule
applies to bar the comparative negligence defense in all cases arising out of injuries sustained while an employee is
engaged in a task on his employer’s behalf. A catalog of industry standards and government regulations address the
standard of care on various worksites and prescribe safety standards for specific activities, such as excavations to
install utilities. To that end, an employer performing excavation work is required to take measures to protect
employees. However, unlike the manufacturer of an industrial machine, who has an absolute duty to produce a
machine that is safe to operate, a general contractor is expected to protect its workers from the myriad of potential
dangers encountered on a construction site so far as possible. The vast discrepancy between the level of control
asserted by the manufacturer of an industrial machine and that of a general contractor on a construction site
mandates that the result of this case be different from that in Suter. (pp. 23-27)
5. The relevant inquiry in gauging the level of an employee’s responsibility for his or her injuries is whether he or
she failed to use the care of a reasonably prudent person under all of the circumstances, either in continuing to work
in the face of a known risk or in the manner in which he or she proceeded in the face of that known risk. The issue
of a plaintiff’s negligence may only be submitted to the jury when the evidence adduced at trial suggests that a
worker acted unreasonably in the face of a known risk and that conduct somehow contributed to his or her injuries.
The fact that plaintiff was a member of the workforce, with all the compulsions attendant to that status, is a factor
which is subsumed in the jury’s analysis of whether he acted prudently. The jury should also consider the effect of
the plaintiff’s expertise and training on his or her determination of whether to proceed with the assigned task and the
manner in which to do so. Notwithstanding the rule permitting an employee’s negligence to be considered in a
negligence action against a third party arising from a workplace accident, the trial judge here properly rejected
defendant’s request for a comparative negligence charge because there is no evidence that plaintiff failed to act with
the care of a reasonably prudent person in choosing to complete his assigned task on the day of the accident. (pp.
28-30)
The judgment of the Appellate Division is AFFIRMED.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-
VINA, and SOLOMON join in JUDGE CUFF’s opinion.
2
 SUPREME COURT OF NEW JERSEY
A-37 September Term 2013
073001

ROLANDO FERNANDES,

Plaintiff-Respondent,

v.

DAR DEVELOPMENT CORP. and DAR
CONSTRUCTION, INC.,

Defendants-Appellants.

Argued October 7, 2014 – Decided July 28, 2015

On certification to the Superior Court,
Appellate Division.

Joseph K. Cobuzio argued the cause for
appellant (Tompkins, McGuire, Wachenfeld &
Barry, attorneys; Mr. Cobuzio, Matthew P.
O’Malley, and Jared P. DuVoisin, on the
briefs).

Gerald H. Clark argued the cause for
respondent (Clark Law Firm, attorneys; Mr.
Clark and William S. Peck, on the letter
brief).

Bruce H. Stern argued the cause for amicus
curiae New Jersey Association of Justice
(Stark & Stark, attorneys; Mr. Stern and
Michael G. Donahue, on the brief).

JUDGE CUFF (temporarily assigned) delivered the opinion of

the Court.

1
 As plaintiff Rolando Fernandes and his boss, Mario Freitas

(Mario),1 were installing a sewer pipe on a residential

construction site, the wall of the trench in which Fernandes was

working collapsed, burying him up to his chest. Mario promptly

extricated plaintiff and later drove him home. Fernandes was

seriously injured and has not worked since that day.

Fernandes filed a complaint against the general contractor,

DAR Development Corp. and DAR Construction, Inc. (collectively

DAR or defendant), seeking compensatory damages. At trial, the

court rejected defendant’s request to charge comparative

negligence. The jury returned a verdict in favor of plaintiff.

In resisting defendant’s request to charge Fernandes’

negligence, plaintiff invoked Suter v. San Angelo Foundry &

Machine Co., 81 N.J. 150 (1979), to argue that a worker’s

negligence should not be submitted to the jury in negligence

claims by an injured worker against third parties, such as a

general contractor. He also argued that the record provided no

evidential support for a comparative negligence charge.

The Appellate Division affirmed the decision by the trial

court refusing to submit the issue of plaintiff’s negligence to

the jury. In doing so, the appellate panel invoked not only the

leading authority on negligence claims by injured workers

1 We refer to Mario Freitas by his first name to avoid confusion.
We intend no disrespect by this practice.
2
arising from workplace accidents against third parties, but also

authority governing workplace accidents involving unsafe or

defectively designed equipment. The Appellate Division’s

analysis of the comparative negligence issue requires this Court

to determine whether the negligence of an employee injured in a

workplace accident may be submitted to the jury.

We conclude that in negligence claims by injured workers

against third parties, such as a general contractor, there is no

sound reason to depart from settled precedent that an employee’s

negligence may be submitted to the jury when evidence has been

adduced that the injured employee unreasonably confronted a

known risk and had no meaningful choice in the manner in which

he completed that task. We also determine, like the Appellate

Division, that in this case the evidence produced at trial

provided no basis to submit the issue of Fernandes’ negligence

to the jury.

I.

A.

The following facts are derived from evidence adduced at

trial. On October 9, 2004, plaintiff was working at a

residential construction site in Warren. DAR was the general

contractor on the project; plaintiff’s employer, C. Freitas

Plumbing and Heating, Inc. (Freitas), was the plumbing

subcontractor. DAR and Freitas had a well-established

3
relationship; between 2002 and 2004, DAR awarded contracts for

nearly 100 percent of its excavation work to Freitas.

Construction of the home required digging an approximately

700-foot-long trench (the sewer trench) that extended from the

home to the street. The two-and-one-half-foot wide and

approximately five-foot deep trench included a makeshift

stairwell to enable workers to enter and exit the trench easily.

It is undisputed that plaintiff and Mario, the president of

Freitas, arrived at the jobsite together. At the time of the

accident, plaintiff was connecting sewer pipes inside the trench

while Mario used a backhoe to excavate the trench. As plaintiff

climbed the staircase, the trench collapsed, burying him chest-

high in dirt and stones. Plaintiff was seriously injured and

unable to continue working. Mario drove him home and picked up

plaintiff’s son Andre, also an employee of Freitas, to finish

work at the jobsite.

The parties agreed that the accident would not have

occurred had the trench been outfitted with safety devices

designed to prevent a collapse. The central dispute at trial

was whether DAR or Freitas bore the responsibility for taking

those precautions. Plaintiff presented evidence that DAR

violated regulations promulgated pursuant to the Occupational

Safety and Health Act of 1970 (the Act), 29 U.S.C.A. §§ 651 to -

78, which required a general contractor to prevent cave-ins by

4
installing a trench protection system known as a trench box. In

response, DAR presented evidence that plaintiff was an

experienced trench worker who was well aware of both the hazards

associated with excavation and the necessary safety precautions.

Plaintiff testified that he began working for Freitas when

he moved to the United States in 2001. Prior to that, plaintiff

spent nineteen years working as a plumber in his native country.

Throughout his career, plaintiff completed “hundreds if not

thousands” of pipe installations. He acknowledged his

familiarity with the hazards associated with excavation work.

Plaintiff initially testified that Freitas did not utilize

trench protection systems, and that such a system was

unavailable to him at the time of his accident. However, on

cross-examination, plaintiff acknowledged that, at his

deposition, he testified that Freitas used trench protection in

“some places” and that plaintiff himself had utilized protective

measures on “many” occasions. At trial, plaintiff explained

this contradiction by specifying that Freitas “never had a

trench box.” Rather, Freitas utilized a brace constructed of

two sheets of plywood separated by hydraulic stretchers to

prevent cave-ins. Plaintiff stated that sometimes the workers

would be responsible for deciding whether to use the protective

system if it had been brought to the jobsite. He admitted that

5
if he “left in the morning with the box and if [he] had it with

him when [he] got to work, [he] would use [it].”

One such occasion when plaintiff could have chosen to use

trench protection was at the Warren jobsite during the four- or

five-day period prior to his accident. During that period,

plaintiff used a backhoe to excavate the trench while other

workers connected pipes inside the trench. Plaintiff testified

that he did not elect to use a trench protection system on those

days. However, on re-direct, plaintiff clarified that Mario was

ultimately responsible for deciding whether to employ trench

protection. Counsel read into the record a portion of

plaintiff’s deposition testimony stating that he hesitated to

make “too many suggestions” because he feared he would be fired.

Mario testified that in August 2003, Freitas purchased

three sets of trench boxes certified by the Occupational Safety

and Health Administration (OSHA). Thereafter, Freitas conducted

employee meetings regarding trench safety and proper use of the

boxes. Plaintiff attended those meetings. Mario testified

that, although the Act only required the use of trench systems

in locations where the trench was deeper than five feet, his

company also employed protective measures in sections of trench

that were considered unstable, regardless of their depth. Mario

disputed plaintiff’s assertion that plaintiff would be fired if

he requested that trench protection be used on a particular

6
project, explaining that like every Freitas employee, plaintiff

was responsible for determining when it was necessary to employ

a trench box. Mario instructed his workers to take the trench

boxes to their jobsites on a daily basis, and all of the workers

were aware of the importance of using trench protection.

On cross-examination, Mario admitted that he had no formal

OSHA training. He acknowledged that Freitas had no established

health and safety protocol and asserted that DAR did not require

one. DAR made no inquiries to him about Freitas’ safety

protocol, did not request a breakdown of the amount of money

earmarked for such concerns, and did not conduct OSHA training

on DAR-Freitas jobsites. No one from DAR had ever addressed

safety protocol with Mario.

Norberto Jean Salle, DAR’s project manager for the Warren

jobsite, testified that he was the highest authority on safety

at the site and was onsite daily. Like Mario, Jean Salle had

not received OSHA training, although he had received

construction safety training while studying to become an

architect in Argentina. Jean Salle confirmed that DAR did not

have a written health or safety program or conduct safety

meetings on the Warren jobsite, although it did provide

subcontractors with verbal instructions about necessary safety

precautions.

7
 Evidence presented at trial suggested that the trench was

between four feet and five feet, eight inches deep at the point

of collapse. Mario testified that he examined the trench on the

morning of plaintiff’s accident and determined that protective

measures were not necessary because “the dirt . . . was good.”

Jean Salle also concluded that a collapse was unlikely.

Vincent Gallagher testified on behalf of plaintiff as an

expert in the field of construction site safety management and

OSHA compliance. According to Gallagher, in accordance with

OSHA regulations, DAR was the “controlling employer” on the

Warren jobsite. As such, DAR was required to hire “safe”

subcontractors, to ensure that subcontractors designated a

“competent person” to enforce OSHA regulations, and to monitor

the work to ensure it was being performed in a safe manner.

Gallagher opined that DAR increased its profits by

regularly hiring unscrupulous subcontractors who did not adhere

to OSHA standards. In support of this conclusion, Gallagher

referenced deposition testimony by a Freitas employee uninvolved

in this litigation, who testified that he had worked in more

than one hundred trenches on DAR-Freitas projects, that all were

deeper than five feet, and that trench boxes were never used.

Plaintiff’s son Andre, who had worked on five to ten DAR-Freitas

projects, testified that the excavations in those projects had

at times required digging deeper than five feet and that trench

8
boxes were not used. Based on those depositions, Gallagher

concluded that it was “very common” for workers on DAR-Freitas

projects to conduct excavation work without suitable protection.

Gallagher opined that the trench in this case was likely to

collapse and cause injury for two reasons. First, the trench

was excavated out of fill soil. Unlike virgin earth, which

hardens over time, fill soil has “loose compaction,” which makes

it prone to collapse. Second, because the two-and-one-half-foot

wide trench was “narrow” it was more likely to cause serious

injury upon collapse. Gallagher relied on deposition testimony

of one of Freitas’ employees, who testified that fifteen to

twenty cave-ins had occurred in the sewer trench in the four

days prior to plaintiff’s injury.

Defendant’s construction safety and civil engineering

expert, Timothy Carlson, testified that as the sewer trench

approached the house, it converged with an area previously

excavated to permit installation of a gas line. The gas-line

trench, which was approximately two-to-three-feet wide, was

backfilled with sand in order to support the line and prevent it

from rupturing. Carlson noted that, unlike clay, sand flows

when disturbed. He opined that plaintiff’s accident occurred

because the sewer trench came too close to the gas-line trench,

causing the sand from the gas-line trench to flow into the sewer

9
trench. The flowing sand weakened the walls of the sewer

trench, causing the collapse.

Carlson also referred to OSHA regulations. He testified

that there are two critical aspects to OSHA’s excavation

standards: first, identification of a “competent person,” who is

able to “recognize a hazard and has the authority to do

something about it,” and second, mandatory use of a trench

protection system in an excavation deeper than five feet. He

agreed that when excavating a trench less than five-feet deep,

the competent person is responsible for determining whether

protective measures are necessary. Carlson opined that Mario

was the competent person on the Warren jobsite. On cross-

examination, Carlson admitted that, although OSHA training would

be helpful to the competent person, the regulations did not

require it. He reiterated that Mario was the competent person

on the jobsite despite Mario’s admitted lack of OSHA training.

On cross-examination, Carlson testified that typically,

general contractors on residential jobs do not conduct safety

meetings on the jobsite. Carlson opined that, as the general

contractor, DAR did not have a responsibility to ensure that

each subcontractor’s employees received safety training.

Carlson stated that it was the responsibility of Freitas to

train its workers to complete their assigned tasks safely.

Despite this statement, Carlson acknowledged that, in accordance

10
with the Act, a general contractor has a non-delegable duty to

ensure the safety of a workplace.

At the charge conference, DAR requested a comparative

negligence charge. It asserted that the jury should be

permitted to consider plaintiff’s negligence based on his entry

into the trench on the day of the accident, which DAR reasoned

was unreasonable conduct in light of plaintiff’s extensive

excavation experience, his understanding of the hazards

associated with trench excavation, and his occasional

responsibility for deciding when it was necessary to use trench

protection. Plaintiff’s response to this request was two-fold.

First, he contended that as a matter of public policy

comparative negligence has no place in a workplace injury trial

dealing with injuries sustained by a worker while performing his

assigned task. Second, the evidence adduced at trial did not

suggest that plaintiff unreasonably proceeded in the face of a

known risk or was “horsing around.”

The trial court denied DAR’s request, concluding that the

record was devoid of evidence suggesting that plaintiff entered

the trench despite knowing it was unsafe. In its charge, the

trial court instructed the jury that a general contractor has a

non-delegable duty to maintain a safe workplace. The court

informed the jury that a general contractor must exercise

reasonable care under general negligence principles to protect

11
its workers -- and those of its subcontractors -- from

foreseeable harm. The court also instructed the jury that

noncompliance with construction safety standards promulgated by

the construction industry and OSHA may be considered evidence of

negligence but that those standards did not conclusively

establish negligence on the jobsite.

The jury returned a unanimous verdict in favor of plaintiff

awarding damages of $792,000.

B.

Defendant appealed, asserting that the trial court’s

refusal to charge comparative negligence constituted reversible

error. In an unpublished opinion, the Appellate Division

determined that the trial court properly denied a comparative

negligence charge because defendant “failed to present competent

evidence that at the time of the accident, plaintiff voluntarily

and unreasonably proceeded in the face of a known danger --

which is the standard against which an injured construction

worker’s conduct is measured.” In reaching that conclusion, the

Appellate Division cited Kane v. Hartz Mountain Industries,

Inc., 278 N.J. Super. 129 (App. Div. 1994), aff’d o.b., 143 N.J.

141 (1996), and Suter and its progeny, a line of cases

traditionally applied to products liability matters.

Defendant petitioned for certification, limited to the

comparative negligence issue. This Court granted defendant’s

12
petition, 216 N.J. 86 (2013), and permitted the New Jersey

Association of Justice (NJAJ) to appear as amicus curiae.

II.

Defendant asserts that the Appellate Division erred by

applying Suter in its analysis of the availability of a

comparative negligence instruction in this case. In Suter,

supra, this Court held that a plaintiff’s comparative negligence

could not be considered when the plaintiff, an employee in an

industrial setting, was injured while using a defective machine

in an intended or reasonably foreseeable manner. 81 N.J. at

167. Defendant contends that the Suter rule applies only in

products liability cases, and that the Appellate Division’s

extension of the Suter rule to this case contradicts Kane,

supra, 278 N.J. Super. at 150.

In relying on Kane, defendant argues that the jury should

have been permitted to consider whether plaintiff used the care

of a reasonably prudent person in entering the trench without

safety equipment. Defendant asserts that it is fundamentally

unfair for it to be found negligent for failing to recognize

that the trench was at risk of collapse without allowing the

jury to consider whether plaintiff, who had more than twenty

years of construction experience and acknowledged his

13
familiarity with the dangers associated with excavation, should

also reasonably have recognized that risk.

Plaintiff argues that the trial court correctly removed the

issue of plaintiff’s negligence from the jury. Plaintiff

asserts that there was no evidence from which a reasonable juror

could have concluded that he knowingly, deliberately, and

unreasonably proceeded in the face of a known danger. Plaintiff

contends that there was no evidence to suggest that he failed to

use the degree of care of a reasonably prudent person under all

the circumstances of this case, either in incurring a known risk

or in the manner in which he proceeded in the face of that risk.

Instead, plaintiff emphasizes that the trench collapsed while it

was being excavated by his boss and plaintiff was performing his

assigned task of connecting pipes under his boss’s direct

supervision. Accordingly, plaintiff asserts that the trial

court correctly concluded that there was no evidence to support

a comparative negligence charge.

Moreover, plaintiff argues that the Suter rule should be

invoked in all workplace injury cases against third parties.

Plaintiff contends that Suter has consistently been interpreted

broadly to bar a third-party defendant from asserting

comparative negligence in claims raised by a plaintiff who

sustained a workplace injury.

14
 Amicus NJAJ urges this Court to extend the rule in Suter

to prohibit the comparative negligence defense in construction

worksite cases where the injured worker had no “meaningful

choice” but to work under hazardous conditions. In light of the

non-delegable duty of a general contractor to maintain safe

working conditions, amicus asserts that workers should not be

held responsible for their failure to discover hazards and

dangers resultant from the contractor’s breach of that duty.

Amicus also argues that workers who continue to work in

recognized hazardous conditions should not be barred from

recovering for injuries sustained as a result of those

conditions in situations where the worker’s only choice was to

continue working or be fired. Amicus urges this Court to

distinguish this case from Kane, where the plaintiff was injured

after choosing not to utilize available personal safety

equipment. Amicus insists that plaintiff had no meaningful

choice of whether to work in hazardous conditions. Rather, he

had two options on the day of the accident -- climb into the

trench and perform his assigned task or be fired. Finally,

amicus asserts that comparative negligence should not apply when

a plaintiff’s injury results from a defendant’s breach of a

statute specifically designed for the protection of workers.

15
 III.

A.

To prevail on a claim of negligence, a plaintiff must

establish four elements: (1) that the defendant owed a duty of

care; (2) that the defendant breached that duty; (3) actual and

proximate causation; and (4) damages. Townsend v. Pierre, 221

N.J. 36, 51 (2015) (citing Polzo v. Cnty. of Essex, 196 N.J.

569, 584 (2008)). Ordinarily, the plaintiff bears the burden of

proving the defendant’s negligence and that such negligence was

the proximate cause of the plaintiff’s injury. Myrlak v. Port

Auth. of N.Y. & N.J., 157 N.J. 84, 95 (1999). “To act non-

negligently is to take reasonable precautions to prevent the

occurrence of foreseeable harm to others.” Weinberg v. Dinger,

106 N.J. 469, 484 (1987) (citing People Express Airlines, Inc.

v. Consol. Rail Corp., 100 N.J. 246, 267 (1985)). The

“[a]bility to foresee injury to a potential plaintiff does not

in itself establish the existence of a duty, but it is a crucial

element in determining whether imposition of a duty on an

alleged tortfeasor is appropriate.” Carter Lincoln-Mercury,

Inc. v. EMAR Grp., Inc., 135 N.J. 182, 194 (1994) (internal

citation omitted).

In ordinary negligence actions, the plaintiff is not

required to establish the applicable standard of care. Rather,

“‘[i]t is sufficient for [the] plaintiff to show what the
16
defendant did and what the circumstances were. The applicable

standard of conduct is then supplied by the jury[,] which is

competent to determine what precautions a reasonably prudent man

in the position of the defendant would have taken.’” Davis v.

Brickman Landscaping, Ltd., 219 N.J. 395, 406-07 (2014)

(alterations in original) (quoting Sanzari v. Rosenfeld, 34 N.J.

128, 134 (1961)).

As we explained in Davis, supra, cases in which the

defendant is not obliged to identify the standard of care are

those “involv[ing] facts about which ‘a layperson’s common

knowledge is sufficient to permit a jury to find that the duty

of care has been breached without the aid of an expert’s

opinion.’” Id. at 407 (quoting Giantonnio v. Taccard, 291 N.J.

Super. 31, 43 (App. Div. 1996)). In some cases, however, the

collective experience of the jury is not sufficient to measure

the defendant’s conduct. See Sanzari, supra, 34 N.J. at 134-35.

In those cases, the plaintiff must establish the standard of

care governing the defendant’s conduct and the deviation from

that standard through reliable expert testimony. Davis, supra,

219 N.J. at 407. Claims involving workplace accidents commonly

fall into the category in which the plaintiff must produce

reliable expert testimony to establish the standard of care and

to explain how the defendant’s actions departed from that

17
standard. Costantino v. Ventriglia, 324 N.J. Super. 437, 442

(App. Div. 1999), certif. denied, 163 N.J. 10 (2000).

The standard of care is derived from many sources,

including codes adopted by the Legislature, regulations adopted

by state and federal agencies, and standards adopted by

professional organizations. OSHA was enacted “to assure so far

as possible every working man and woman in the Nation safe and

healthful working conditions” by “encouraging employers and

employees in their efforts to reduce the number of occupational

safety and health hazards at their places of employment.” 29

U.S.C.A. § 651(b)(1). As authorized by Congress, 29 U.S.C.A. §

655(a), OSHA has promulgated mandatory occupational safety and

health standards to further this goal. See generally Labor, 29

C.F.R. §§ 1902-1990 (2014). Those regulations impose general

standards governing construction sites and standards specific to

excavations. Safety and Health Regulations for Construction, 29

C.F.R. § 1926 (2014); Excavations, 29 C.F.R. § 1926(P) (2014).

Relevant to the facts of this appeal, the regulations

permit general contractors and subcontractors to make their own

agreements with regard to the division of labor, however, “[i]n

no case shall the prime contractor be relieved of overall

responsibility for compliance with the requirements of this part

for all work to be performed under the contract.” Rules of

Construction, 29 C.F.R. § 1926.16 (2014). OSHA has also adopted

18
regulations that specifically govern excavations, including

trenches associated with the installation of utilities.

Specific Excavation Requirements, 29 C.F.R. § 1926.651(b)

(2014). This Court has determined that “OSHA regulations are

pertinent in determining the nature and extent of any duty of

care”; however, a violation of such a standard is no more than

evidence of negligence, “if the plaintiff is a member of the

class for whose benefit the standard was established.” Alloway

v. Bradlees, Inc., 157 N.J. 221, 236 (1999) (citing J.S. v.

R.T.H., 155 N.J. 330, 349 (1998); Carrino v. Novotny, 75 N.J.

355, 359 (1979)). Similarly, noncompliance with an industry

standard does not conclusively establish negligence.

Wellenheider v. Rader, 49 N.J. 1, 7 (1967).

B.

Under the common law, a defendant could raise a plaintiff’s

contributory negligence as an affirmative defense to liability.

Ostrowski v. Azzara, 111 N.J. 429, 436 (1988). This doctrine

served to bar recovery by a plaintiff whose fault, no matter how

slight, contributed to the accident. Id. at 436. “Fault in

that context meant a breach of a legal duty that was comparable

to the duty of the other actors to exercise such care in the

circumstances as was necessary to avoid the risk of injury

incurred.” Id. at 436-37.

19
 In 1973, the Legislature adopted the Comparative Negligence

Act (the CNA), N.J.S.A. 2A:15-5.1 to -5.13. The purpose of the

CNA was to “ameliorate the harshness of the common-law

contributory negligence doctrine.” Waterson v. Gen. Motors

Corp., 111 N.J. 238, 267 (1988); see also Release from Office of

the Governor, May 24, 1973 (commenting that “[n]o longer will a

seriously [injured] person be prevented from obtaining

compensation for his injuries merely because he was partially

responsible, in a minor way, for the accident in which he was

injured”). “Comparative negligence, thus, grew out of an

‘equitable desire to mitigate the unfairness associated with the

total bar to recovery posed by common law contributory

negligence.’” Waterson, supra, 111 N.J. at 267 (quoting Suter,

supra, 81 N.J. at 161). A second underlying principle of the

CNA is the idea that “every person has an obligation to exercise

reasonable care for his or her own safety. It is only fair that

each person only pay for injuries he or she proximately caused.”

Ibid.

The CNA requires the finder of fact in any negligence

action to determine “[t]he extent, in the form of a percentage,

of each party’s negligence or fault.” N.J.S.A. 2A:15-5.2(a)(2).

The injured party is permitted to recover if his or her

“negligence was not greater than the negligence of the person

against whom recovery is sought or . . . the combined negligence

20
of the persons against whom recovery is sought.” N.J.S.A.

2A:15-5.1. If the injured party is permitted to recover, his or

her damages will be “diminished by the percentage sustained of

negligence attributable” to that individual. Ibid.

This rule extends to an employee who is injured in a

workplace accident and “sues a third person in an ordinary

negligence action.” Kane, supra, 278 N.J. Super. at 150. In

Kane, an experienced ironworker was severely and permanently

injured while erecting the structural steel frame of a

warehouse. Id. at 134. The day of the accident was cold and

rainy. Id. at 136. The weather deteriorated during the

morning, causing work to cease after the lunch break. Ibid.

The plaintiff and his foreman climbed the partially erected

structure to retrieve their tools and to secure the site. Ibid.

The plaintiff was sitting on a steel beam when a strap attached

to a column snapped, causing him to lose his balance and fall to

the ground. Ibid. No safety nets had been installed at the

site, and the plaintiff was not wearing a safety belt. Id. at

137. The parties disputed whether safety belts were available

at the worksite. Ibid.

On appeal, the Appellate Division reversed and ordered a

new trial because the jury had been improperly instructed on the

standard of care owed by the general contractor and the

structural steel subcontractor. Id. at 143. In contemplation

21
of another trial, the appellate panel addressed and rejected the

plaintiff’s argument that the trial court erred by submitting

the issue of his negligence to the jury. Id. at 149. The

plaintiff maintained that Suter precluded the submission of this

issue to the jury. Ibid.

The Appellate Division summarized the rule permitting

submission of an employee’s negligence if an employee sues a

third party in a negligence action as follows:

It is well established that an employee’s
contributory negligence is generally
available as a defense when the employee sues
a third person in an ordinary negligence
action. See 2B Larson’s Workmen’s Compensation
Law, § 75.21 at 14-572 (1989). Further,
plaintiff being a member of the workforce,
with all the compulsions attendant to that
status, is a factor which is subsumed in the
jury’s analysis of whether he acted prudently,
and the jury may be so instructed. See McGrath
v. American Cyanamid Co., 41 N.J. 272, 275
(1963) (a man who must work to live is not
necessarily negligent whenever he continues to
work after learning of a hazard; the inquiry
is whether he failed to use the care of a
reasonably prudent person under all of the
circumstances either in incurring the known
risk (i.e., staying on the job) or in the
manner in which he proceeded in the face of
that risk). In addition, plaintiff would not
be barred from recovery by virtue of
contributory negligence if “such negligence
was not greater than the negligence of the
person against whom recovery is sought or was
not greater than the combined negligence of
the persons against whom recovery is sought.”
N.J.S.A. 2A:15-5.1.

[Id. at 150-51.]

22
This Court affirmed without opinion. 143 N.J. 141.

A jury may consider a plaintiff’s negligence only when the

evidence adduced at trial suggests that the plaintiff was

somehow negligent and that negligence contributed to the

plaintiff’s damages. Roman ex rel. Roman v. Mitchell, 82 N.J.

336, 343 (1980) (affirming determination that there was

“sufficient evidence of [plaintiff’s] contributory negligence to

submit that issue to the jury pursuant to the comparative

negligence statute,” where evidence adduced at trial revealed

that infant plaintiff, who had been riding his bicycle on New

Jersey Turnpike, was injured when wheel separated from dump

trunk careened across highway and struck plaintiff); Massotto v.

Pub. Serv. Coordinated Transp., 71 N.J. Super. 39, 45 (App. Div.

1961) (holding that “[w]hen the evidence discloses that the

plaintiff was not guilty of any negligence which contributed to

the happening, it is improper and unwarranted to submit the

issue of contributory negligence to the jury”). Whenever a

party asserts a plaintiff is negligent, the defendant must prove

that the plaintiff’s negligence contributed to the accident or

was a “substantial contributing factor to the injuries

sustained.” Waterson, supra, 111 N.J. at 252-53.

IV.

A.

23
 Although Kane rejected the contention that Suter and its

progeny bar submission of an injured employee’s negligence in

negligence actions against third parties, plaintiff renews his

argument that this Court should extend the Suter rule to

negligence actions based on workplace injuries at large. We

begin and end our discussion of this argument by reviewing the

treatment of this same argument in Kane.

The Appellate Division in Kane considered the issue of

whether the plaintiff steelworker’s negligence should be

submitted for the jury’s consideration in the context of an

ordinary negligence claim by an employee injured in a workplace

accident against the owner of the project and the general

contractor. Kane, supra, 278 N.J. Super. at 134. In that

context, the appellate court stated that an employee’s

negligence is “generally available as a defense . . . in an

ordinary negligence action,” and emphasized that “no decision

has applied the Suter rule to a workplace injury not caused by a

defective machine or product.” Id. at 150.

The Kane panel did not rely simply on the absence of

precedent to reject the proposition that an employee’s

negligence should not be submitted to a jury in a negligence

action by an injured worker against a third party. The panel

proceeded to highlight the context of Suter and Green v.

Sterling Extruder Corp., 95 N.J. 263 (1984), and distinguish

24
those cases from a workplace negligence claim against third

parties. Id. at 149-50. The Kane panel emphasized that Suter

involved a strict liability action against a machine

manufacturer by an employee assigned to work on a piece of

machinery without safety devices, id. at 149 (citing Suter, 82

N.J. at 155-57), and that Green involved a negligence action

against a machine manufacturer by a factory worker using a

defective machine for its foreseeable purpose, id. at 149-50.2

Finally, the Kane panel underscored the policy supporting

the comparative negligence bar in strict liability actions. The

appellate court emphasized that “contributory negligence was not

a ‘viable defense in a design defect case when . . . an employee

in an industrial setting, using the machine in an intended or

reasonably foreseeable manner, is injured because of that

defect, and in the absence of that defect the injury would not

have occurred.’” Id. at 149 (quoting Suter, supra, 81 N.J. at

177).

We decline plaintiff’s invitation to extend the Suter rule

governing employee negligence to workplace accidents outside the

product liability context. The principles of Suter remain sound

2 The appellate panel also recognized that the Suter rule had
been extended to accidents involving equipment other than plant
machinery, such as a tractor-trailer. Kane, supra, 278 N.J.
Super. at 150 (citing Tirrell v. Navistar Int’l, Inc., 248 N.J.
Super. 390, 401 (App. Div.), certif. denied, 126 N.J. 390
(1991)).
25
as applied to the narrow realm of cases that fall under its

umbrella: cases in which an employee is injured when using a

defective piece of equipment in a reasonable and foreseeable

manner to complete his assigned task. A rule barring jury

consideration of an employee’s negligence is inapplicable to

suits arising out of injuries sustained while an employee on a

construction worksite is engaged in an assigned task. In so

holding, we expressly affirm the rule announced in Kane and

disapprove of the Appellate Division’s analysis of the issue in

this appeal to the extent it suggests that the Suter rule

applies to bar the comparative negligence defense in all cases

arising out of injuries sustained while an employee is engaged

in a task on his employer’s behalf.

A veritable catalog of industry standards and government

regulations address the standard of care on various worksites

and prescribe safety standards for specific activities, such as

excavations to install utilities. For example, the Act requires

an employer to “furnish a place of employment which [is] free

from recognized hazards” likely to cause death or serious harm.

29 U.S.C.A. § 5654(a)(1). To that end, an employer performing

excavation work is required to take measures to protect

employees working in trenches deeper than five feet or in more

shallow trenches when a “competent person” determines that there

is an “indication” of a potential cave-in. Requirements for

26
Protective Systems, 29 C.F.R. § 1926.652(a) (2014). However,

unlike the manufacturer of an industrial machine, who has an

absolute duty to produce a machine that is safe to operate, a

general contractor is expected to protect its workers from the

myriad of potential dangers encountered on a construction site

“so far as possible.” 29 U.S.C.A. § 651(b). The vast

discrepancy between the level of control asserted by the

manufacturer of an industrial machine and that of a general

contractor on a construction site mandates that the result of

this case be different from that in Suter.

As noted in Kane, supra, employees bear some responsibility

for their personal safety on a construction site. 278 N.J.

Super. at 150. An employee is required to perform his or her

assigned tasks in a manner which is reasonably safe under all of

the circumstances associated with the task. The relevant

inquiry in gauging the level of an employee’s responsibility for

his or her injuries is whether he or she failed to use the care

of a reasonably prudent person under all of the circumstances,

either in continuing to work in the face of a known risk or in

the manner in which he or she proceeded in the face of that

known risk. See McGrath, supra, 41 N.J. at 275. The issue of a

plaintiff’s negligence may only be submitted to the jury when

the evidence adduced at trial suggests that a worker acted

27
unreasonably in the face of a known risk and that conduct

somehow contributed to his or her injuries.

We recognize the continued validity of our statement in

McGrath, supra, where we noted that a man or woman who must work

to live is not necessarily negligent when he or she proceeds

with an assigned task after learning of a hazard. 41 N.J. at

275. The demands of employment, and the reality of the power

imbalance between employer and employee, may therefore be

considered in determining whether an employee acted prudently in

continuing to perform his or her assigned task in the face of a

known risk. The fact that “plaintiff [was] a member of the

workforce, with all the compulsions attendant to that status, is

a factor which is subsumed in the jury’s analysis of whether he

acted prudently, and the jury may be so instructed.” Kane,

supra, 278 N.J. Super. at 150 (citing McGrath, supra, 41 N.J. at

275). The jury should also consider the effect of the

plaintiff’s expertise and training on his or her determination

of whether to proceed with the assigned task and the manner in

which to do so. Subsumed into that analysis, therefore, is

whether the plaintiff unreasonably confronted a known risk and

whether he had a “meaningful choice” in the manner in which he

completed his assigned task.

B.

28
 Notwithstanding the rule permitting an employee’s

negligence to be considered in a negligence action against a

third party arising from a workplace accident, the trial judge

properly rejected defendant’s request for a comparative

negligence charge. Here, the record is abundantly clear that

plaintiff did not proceed unreasonably in the face of a known

risk.

The record is devoid of any evidence that plaintiff knew

the sewer trench was close to the previously excavated gas-line

trench or that the neighboring trench was filled with sand. The

record provides no evidence that plaintiff learned during his

twenty years as a plumber that sand could flow from one trench

to an adjacent one, causing the latter to collapse. The record

demonstrates that plaintiff received no training about workplace

safety from the general contractor or his employer. The record

also demonstrates that plaintiff had no opportunity on that day

to independently assess the stability of the trench.

Mario and plaintiff arrived at the worksite together.

Mario operated the machine that dug the trench, and plaintiff

entered the trench to connect successive sections of pipe.

Notably, plaintiff’s employer proceeded that day without using

any protective devices. Mario was the “competent person” on the

Warren jobsite, and he bore the duty of inspecting the

excavation work to determine if a cave-in was likely.

29
Regardless of plaintiff’s years of experience or actual

knowledge about the danger of this particular excavation, the

Act places the burden of deciding when and where to take

protective measures squarely on Mario, the “competent person,”

and on the general contractor. Moreover, even if plaintiff knew

that a cave-in was likely, his behavior must be evaluated

against that of a reasonably prudent person in his exact

circumstances, and that evaluation includes whether he had a

meaningful choice in the manner in which he performed his

assigned task on that day. In short, there is no evidence that

plaintiff failed to act with the care of a reasonably prudent

person in choosing to complete his assigned task on the day of

the accident.

V.

The judgment of the Appellate Division is affirmed.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN,
PATTERSON, FERNANDEZ-VINA, and SOLOMON join in JUDGE CUFF’s
opinion.

30
 SUPREME COURT OF NEW JERSEY

NO. A-37 SEPTEMBER TERM 2013

ON CERTIFICATION TO Appellate Division, Superior Court

ROLANDO FERNANDES,

Plaintiff-Respondent,

v.

DAR DEVELOPMENT CORP. and DAR
CONSTRUCTION, INC.,

Defendants-Appellants.

DECIDED July 28, 2015
Chief Justice Rabner PRESIDING
OPINION BY Judge Cuff (temporarily assigned)
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY
CHECKLIST AFFIRM
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA X
JUSTICE SOLOMON X
JUDGE CUFF (t/a) X
TOTALS 7