JOEL RIVERA VS. PNL JERSEY PROPERTIES, LLC (L-2146-15, PASSAIC COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2266-17T4

JOEL RIVERA,

Plaintiff-Appellant,

v.

PNL JERSEY PROPERTIES,
LLC, and PNL COMPANIES,

Defendants,

and

MILES SQUARE ROOFING,
CO., INC.,

Defendant/Third-Party
Plaintiff-Respondent,

v.

GUILIANO ENVIRONMENTAL,

Third-Party Defendant.
______________________________

Submitted February 5, 2019 – Decided March 25, 2019

Before Judges Hoffman and Firko.
 On appeal from Superior Court of New Jersey, Law
Division, Passaic County, Docket No. L-2146-15.

Pitts & Polizzi, LLP, attorneys for appellant (Dennis G.
Polizzi, of counsel and on the briefs).

Oleske & Oleske, LLP, attorneys for respondent (Jerald
F. Oleske, on the brief).

PER CURIAM

Plaintiff Joel Rivera, an employee of roofing subcontractor Guiliano

Environmental (Guiliano), appeals from the Law Division order granting the

summary judgment dismissal of his personal injury lawsuit against defendant

Miles Square Roofing (MSR), the general contractor on the jobsite where

plaintiff sustained severe injuries when he fell through a hole in the roof. We

reverse.

I.

Because this appeal stems from a motion for summary judgment, we view

the facts in a light most favorable to plaintiff as the non-moving party. See Brill

v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). In March 2013,

PNL Jersey Properties (PNL) retained Sheldon Gross Realty, LLC (Gross) to

serve as its management agent for a commercial building in Avenel, including

contracting for all repairs or alterations to the building. In July 2013, Gross

hired MSR to replace the roof on the building.

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 MSR's contract provided that PNL must approve all subcontractors and

that MSR retained responsibility for "safety barriers . . . OSHA compliance,

[and] safety compliances and procedures throughout the course of the work."

MSR then hired Guiliano to remove the roof from PNL's building. 1 Plaintiff

worked for Guiliano for "[a]bout two and a half years" before this accident.

Prior to bidding on the project, MSR conducted an inspection of the roof

and discovered plywood sheets covering several holes in the roof. These

plywood sheets appeared "as bumps in the roof." MSR knew the plywood

patches posed safety concerns.

Based upon working with Guiliano on prior projects, MSR's project

manager explained that an MSR foreman would mark a section of roof for

Guiliano to rip up each night and MSR workers would replace that section of

the roof the next work day. On July 16, 2013, plaintiff and other Guiliano

workers arrived at PNL's building at 3:30 a.m., after working over eight hours

at another job-site; by that time, other workers had already cut portions of the

roof for removal. According to plaintiff, "We were only going to pick up the

1
The record before us does not include a copy of the contract between MSR
and Guiliano; however, it appears undisputed that Guiliano did not sign the
contract until two days after plaintiff's accident.
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3
roof and clean." Flood lights provided illumination for Guiliano employees to

do their removal work.

Within thirty minutes of his arrival, plaintiff fell twenty-five to thirty feet

through an unguarded hole in the roof. According to plaintiff, he sustained a

"traumatic brain injury, multiple skull based fractures, displaced fracture of the

left superior pubic ramus, left sacroiliac fracture, severe low back injury" and

related injuries. He remained in a coma for a week and a half, and his medical

bills exceeded $265,000.

MSR did not have a foreman on site at the time of plaintiff's fall, contrary

to its contract with PNL. Nor did MSR provide OSHA mandated equipment

such as harnesses and guardrails, again in violation of its contract with PNL. 2

After plaintiff's accident, MSR's operation manager learned that Guiliano

workers had used "a rhino" on the roof and "[t]hat the deck was damaged by

[the] rhino." He described a rhino as "basically a motorized wedge with

agitat[ing] blade . . . used to pick the roofing up," after a roofer cuts the roof

into sections. He further stated that MSR "never uses a rhino on a metal deck

2
Guiliano also did not provide any safety equipment to plaintiff, not even a
hardhat. Plaintiff did wear safety glasses, which he purchased himself.

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roof." Following plaintiff's accident, he told Guiliano to discontinue using the

rhino because of the damage it does to the roof, and Guiliano complied.

Guiliano previously performed subcontract work numerous times for

MSR. According to MSR, in the prior instances, MSR "placed all responsibility

for safety equipment, the means and methods of the roof removal work, and the

supervision of employees of Guiliano engaged in the roof removal on

[Guiliano]." The record contains no evidence that Guiliano ever provided safety

equipment to its workers on the previous jobs for MSR. Instead, workers

brought their own safety equipment, or worked without it.

OSHA regulations required various safety measures that were absent the

day plaintiff fell. Employees working on surfaces more than six feet above

ground must be "protected from falling through holes . . . by personal fall arrest

systems, covers, or guardrail systems erected around such holes." 29 C.F.R. §

1926.501(b)(4)(i). Employers were also required to instruct employees to

control hazards. 29 C.F.R. § 1926.21(b)(2). OSHA also required regular

inspections by persons responsible for initiating and maintaining an accident

prevention program. 29 C.F.R. § 1926.20(b)(2).

Both parties provided expert witness reports by the discovery end date,

but plaintiff's report was served beyond the deadline established in a case

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management order. Along with its summary judgment motion, MSR moved to

bar plaintiff's liability expert because it was served almost two months late.

Plaintiff filed a cross-motion for summary judgment and for permission to

utilize his liability expert, notwithstanding the late service of his report. The

court granted MSR's summary judgment motion and denied both sides' expert

witness applications, apparently treating them as moot.

II.

In a written statement of reasons granting MSR's motion for summary

judgment, the motion judge rejected plaintiff's argument that MSR, as general

contractor, breached its duty to maintain a safe workplace. The judge found:

[MSR] did not participate in this demolition work and
did not exercise control over Guiliano's equipment,
means and methods on the site. [MSR] was not present
at the time of plaintiff's injury, provided no equipment
or assistance to Guiliano, [was] completely unaware of
Guiliano's decision to permit plaintiff to remain on the
roof without a harness. Under the circumstances,
[MSR] cannot under fairness and reasonableness
grounds be said to have breached a duty to the plaintiff.
It was proper for [MSR] to accept that after the exterior
inspection of the rules by Guiliano[,] that Guiliano's
management would notify its employees of the
condition of the roof . . . . Moreover, here [MSR] did
not exercise sufficient supervisory oversight to render
the injury foreseeable.

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 The judge acknowledged that MSR completed an inspection of the roof

"before the work commenced and knew of holes or weakness in conditions on

the roof due to layers of roof." She further noted plaintiff's argument that MSR

"was contractually required to have a foreman on the site when Guiliano was

working at night" and that the operations manager for MSR stated he would have

stopped work if he saw Giuliano employees working on the roof without

harnesses. Nevertheless, the judge found that Guiliano, not MSR, controlled the

worksite. The judge further found that MSR's safety-related duties under his

contract with PNL, and its own risk control policies, did not create a duty owing

to plaintiff.

On appeal, plaintiff asserts that MSR breached a duty owed to plaintiff to

provide a safe work environment.

III.

We review the trial court's grant of summary judgment de novo. Lapidoth

v. Telcordia Techs., Inc., 420 N.J. Super. 411, 417 (App. Div. 2011). We apply

the same standard as the trial court. Prudential Prop. & Cas. Ins. Co. v. Boylan,

307 N.J. Super. 162, 167 (App. Div. 1998). We "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

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alleged disputed issue in favor of the non-moving party." Brill, 142 N.J. at 540.

We review issues of law de novo. Manalapan Realty, LP v. Twp. Comm. of

Manalapan, 140 N.J. 366, 378 (1995).

Our analysis is guided by the principles adopted by the Court in Alloway

v. Bradlees, Inc., 157 N.J. 221 (1999) and in Kane v. Hartz Mountain Indus.,

Inc., 143 N.J. 141 (1996), aff'g o.b., 278 N.J. Super. 129 (App. Div. 1994). We

must determine whether MSR owed a duty to assure plaintiff's safety. Whether

a duty is owed raises an issue of law for the court. Anderson v. Sammy Redd &

Assocs., 278 N.J. Super. 50, 56 (App. Div. 1994).

In Kane, we held a general building contractor was liable to an employee

of a steel framing subcontractor who fell from a steel beam. 278 N.J. Super. at

129. We relied in part on the employer's failure to install safety nets, which

OSHA regulations required. Id. at 137. While we held violations of OSHA

regulations do not establish negligence per se, "OSHA regulations are pertinent

in determining the nature and extent of any duty of care." Id. at 142; Alloway,

157 N.J. at 236. Compliance with OSHA regulations does not preclude a finding

of negligence, nor does non-compliance compel a finding of negligence.

Alloway, 157 N.J. at 237.

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 Along with considering OSHA standards, a trial court must weigh other

factors relevant to the "determination of the existence of a duty of reasonable

care under 'general negligence principles' . . . ." Id. at 230. This determination

implicates consideration of the foreseeability of the risk of injury; the

relationship of the parties; the nature of the attendant risk; the opportunity and

ability to exercise care; and the public interest. Ibid.

Applying these standards, we find that MSR owed a duty of care to

plaintiff as a matter of law. Initially, MSR assumed the duty to ensure OSHA

and other safety standards were followed. MSR's contractual obligation to

comply with OSHA's fall prevention standard favors imposition of a duty.

Further, the other factors addressed in Alloway also favor imposing upon

MSR a duty of care owing to plaintiff. The risk of a fall through the roof was

foreseeable. Here, defendant MSR had knowledge of plywood sheets covering

holes in the roof. MSR's Vice President, Kirk Hollis, admitted he inspected the

roof before bidding on the project and observed the holes in the roof his

company needed to replace. The parties do not dispute this fact. Actual

knowledge of a dangerous condition may be sufficient to find a duty. Carvalho

v. Toll Bros. & Developers, 143 N.J. 565, 576-77 (1996).

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 In Carvalho, knowledge of a dangerous condition resulted in a duty. The

defendant's engineers were supervising a project during the course of which pipe

was laid in trenches. Id. at 570, 575. One trench collapsed, killing the plaintiff.

Id. at 572. The defendant's engineer had actual knowledge of the dangerous

condition because he had learned that on the days prior, other trenches had

collapsed. Id. at 574. The defendant's engineer, who was on site and could have

addressed the problem, did not take adequate safety measures to negate risks of

injury or death to workers on the site. See id. at 577-78. Thus, the defendants

had actual knowledge of the risk of harm and the court imposed a duty.

Likewise here, defendant had actual knowledge of the dangerous

condition after discovering the holes during its inspection of the roof. The

parties do not dispute defendant's knowledge. Further, defendant had promised

the building owner that it would exercise supervision over all of the roofing

work and provide all required safety equipment.

As to the relationship between the contractor and subcontractor, although

there is no evidence of common ownership, the record indicates Guiliano

worked closely with MSR on numerous prior projects.

The nature of the risk also supports imposing a duty against MSR.

Although the risk of falling is present in virtually any roof work, the risk in this

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case arose from the nature of the worksite where the work was performed, and

the absence of safety measures connected with that worksite. Plaintiff's risk did

not arise out of the methods and means of removing old roofing material.

Plaintiff was not injured by a tool provided by his employer. Cf. Tarabokia v.

Structure Tone, 429 N.J. Super. 103 (App. Div. 2012) (holding general

contractor was not liable to electrical subcontractor's employee for injury caused

by use of subcontractor's power tool without proper safety gloves, and general

contractor exerted no control over the use of the tool). Rather, plaintiff was

injured because the roof where he worked was not made safe.

MSR also possessed the opportunity and ability to exercise care which

could have avoided plaintiff's injury. Reducing the risk of a fall was within the

general contractor's expertise or knowledge. MSR is a roofing specialist.

Indeed, once Guiliano completed its work removing the old roof, MSR expected

its own employees to mount the same roof, where they would face risks

comparable to those plaintiff and his fellow Guiliano workers faced. At that

point, MSR would have borne directly, for the sake of its own employees, the

same duty to prevent falls that plaintiff seeks to impose for the sake of the

subcontractor's employees.

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 MSR unquestionably had the opportunity and the authority to install fall

prevention devices. The roofing contract between MSR and the building owner

required MSR to exercise control over the site, to make it safe, and to prevent

accidents. In the contract, MSR promised to supervise all work and provide all

safety equipment necessary for the work.

The public interest supports imposing a duty of care upon MSR for

plaintiff's benefit. We have held the "public policy of this State . . . favors the

general contractor as the 'single repository of the responsibility for the safety of

all employees of a job.'" Dawson v. Bunker Hill Plaza Assocs., 289 N.J. Super.

309, 321 (App. Div. 1996) (quoting Kane, 278 N.J. Super. at 141).

Further, although subcontractors generally have sufficient knowledge,

training, and experience to understand the inherent risks in their line of work,

see Tarabokia, 429 N.J. Super. at 213 ("[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.") (quoting Accardi v. Enviro-Pak

Systems Co., Inc., 317 N.J. Super. 457, 463 (App. Div. 1999)). This is not

dispositive.

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 MSR previously worked with plaintiff's employer on numerous prior

occasions. According to plaintiff, Guiliano never provided any safety

equipment. On the other hand, MSR contracted to provide all necessary safety

equipment. While the contract is not dispositive, it would result in unfairness

to allow MSR to promise to provide all required safety equipment only to use a

company it regularly hired that never provided even bare minimum safety

equipment to its workers, particularly when MSR knew of the dangerous

conditions associated with the roof.

"[T]he paramount consideration of a worker's safety is more clearly

placed in focus by a more comprehensive rule which makes the primary

contractor and each tier of subcontractor responsible for the safety of the

workers under them on general negligence principles." Kane, 278 N.J. Super.

at 143. Finding MSR owed plaintiff a duty in this instance fully complies with

this mandate. Therefore, we find MSR owed a duty to plaintiff.

Because the motion judge concluded this case was ripe for the entry of

summary judgment in favor of MSR, she did not address the parties' applications

concerning the late report of plaintiff's liability expert. Because we conclude it

would likely benefit the jury to hear the testimony of an expert from each side

in this case, and considering the catastrophic injuries sustained by plaintiff and

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the absence of any prejudice to MSR by the late service of plaintiff's expert

report, we conclude, in the interests of justice, that plaintiff should be permitted

to utilize his liability expert at trial. On remand, the trial court shall reopen

discovery for thirty days to permit counsel for MSR to depose plaintiff's expert.

Reversed and remanded. We do not retain jurisdiction.

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