ESTATE OF KATHLEEN CHETWYND VS. DIVERSIFIED RACK & SHELVING, INC. (L-0232-16, MIDDLESEX 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NOT FOR PUBLICATION WITHOUT THE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-0761-18T4

ESTATE OF KATHLEEN
CHETWYND by FREDERICK
E. CHETWYND, JR., the Executor
of the Estate of Kathleen Chetwynd,
FREDERICK E. CHETWYND, JR.,
her husband, individually, and
PETER CHETWYND,

Plaintiffs-Appellants,

v.

DIVERSIFIED RACK & SHELVING,
INC., J.C. RACK & SHELVING, INC.,
JUAN CARLOS RODRIGUEZ,
JOSE AVALOS, SCHREIBER
FOODS INTERNATIONAL, INC.,
ALL SEASONS FOODS, INC.
d/b/a EVILY ATLANTIC
WAREHOUSE, LTD., EVILY
DISTRIBUTION, and HARLEYSVILLE
INSURANCE COMPANY,

Defendants-Respondents.
____________________________________

Submitted December 2, 2019 – Decided December 16, 2019

Before Judges Fasciale and Moynihan.
 On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Docket No. L-0232-16.

Pezzano Mickey & Bornstein LLP, attorneys for
appellants (Wendy S. Bornstein, on the briefs).

Law Office of Gerald F. Strachan, attorneys for
respondent Diversified Rack & Shelving, Inc.
(Matthew Raymond Panas, on the brief).

Barry, McTiernan & Wedinger, PC, attorneys for
respondents Schreiber Foods International, Inc. and All
Seasons Foods, Inc. d/b/a Evily Atlantic Warehouse,
Ltd. a/k/a Evily Distribution (Laurel A. Wedinger and
Richard W. Wedinger, on the brief).

PER CURIAM

In this personal injury case, plaintiffs appeal two April 2, 2018 orders,

barring plaintiffs' liability expert report and granting summary judgment to

defendants Diversified Rack & Shelving, Inc. (Diversified) and Schreiber Foods

International, Inc.; All Seasons Foods, Inc. d/b/a Evily Atlantic Warehouse, Ltd.

a/k/a Evily Distribution (collectively Schreiber). Kathleen Chetwynd (plaintiff)

died during the unloading of heavy metal shelving from her truck. We affirm.

Schreiber owned the premises where the accident occurred. Schreiber

hired Diversified to dismantle, transport and re-install storage racks. Diversified

then hired plaintiff's company, Kat'z Transportation LLC, to transport the

shelving, and hired J.C. Rack & Shelving, Inc. (J.C. Rack), which was owned

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by Juan Carlos Rodriguez (Rodriguez), to load and unload plaintiff's truck. The

accident occurred when Jose Avalos (Avalos)—a J.C. Rack employee—

unloaded plaintiff's truck using a forklift. Plaintiffs argued that Avalos operated

the forklift without taking the necessary steps to ensure that no one was within

the truck's vicinity. 1

I.

We begin by addressing the order barring plaintiffs' expert report as a net

opinion. The admission or exclusion of expert testimony is within the trial

judge's sound discretion. State v. Berry, 140 N.J. 280, 293 (1995). "Absent a

clear abuse of discretion, an appellate court will not interfere with the exercise

of that discretion." Innes v. Marzano-Lesnevich, 435 N.J. Super. 198, 247 (App.

Div. 2014) (internal quotation marks omitted) (quoting Carey v. Lovett, 132 N.J.

44, 64 (1993)). An abuse of discretion occurs when a decision is "made without

a rational explanation, inexplicably departed from established policies, or rested

on an impermissible basis." Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571

(2002) (citation omitted).

1
Plaintiffs obtained a default judgment against J.C. Rack and Rodriguez, and
Avalos was dismissed from the case.
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 The net opinion rule "forbids the admission into evidence of an expert's

conclusions that are not supported by factual evidence or other data."

State v. Townsend, 186 N.J. 473, 494 (2006). It mandates that an expert provide

"the why and wherefore that supports the opinion, rather than a mere

conclusion." Borough of Saddle River v. 66 E. Allendale, LLC, 216 N.J. 115,

144 (2013) (internal quotation marks and citations omitted). "The failure of an

expert to give weight to a factor thought important by an adverse party does not

reduce his testimony to an inadmissible net opinion if he otherwise offers

sufficient reasons which logically support his opinion." Rosenberg v. Tavorath,

352 N.J. Super. 385, 402 (App. Div. 2002). "[A]n expert witness is always

subject to searching cross-examination as to the basis of his opinion[.]"

Glenpointe Assocs. v. Twp. of Teaneck, 241 N.J. Super. 37, 54 (App. Div. 1990)

(citation omitted).

The Occupational Safety and Health Administration Agency (OSHA)

classifies all worksite employers into one or more categories. Plaintiffs' expert,

Brooks Rugemer (Rugemer), classified Diversified as: (1) a creating employer

(one that "caused a hazardous condition that violates an OSHA standard"); (2)

an exposing employer (one "whose own employees are exposed to a hazard");

(3) a correcting employer (one "who is engaged in a common undertaking, on

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the same worksite, as the exposing employer and is responsible for correcting a

hazard"); and (4) a controlling employer (one "who has general supervisory

authority over the worksite, including the power to correct safety and health

violations itself or require others to correct them"). He classified Schreiber as

an exposing employer, a correcting employer, and a controlling employer.

Diversified and Schreiber contend that Rugemer provided mere conclusions,

rather than "the why and wherefore that supports [his] opinion[.]" Saddle River,

216 N.J. at 144 (internal quotation marks and citations omitted).

N.J.R.E. 702 governs the admissibility of expert testimony: "[i]f

scientific, technical, or other specialized knowledge will assist the trier of fact

to understand the evidence or to determine a fact in issue, a witness qualified as

an expert by knowledge, skill, experience, training, or education may testify

thereto in the form of an opinion or otherwise." N.J.R.E. 702 imposes three

basic requirements:

(1) the intended testimony must concern a subject
matter that is beyond the ken of the average juror; (2)
the field testified to must be at a state of the art such
that an expert's testimony could be sufficiently reliable;
and (3) the witness must have sufficient expertise to
offer the intended testimony.

[Creanga v. Jardal, 185 N.J. 345, 355 (2005) (internal
quotation marks and citations omitted).]

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N.J.R.E. 703 governs the underlying bases of expert opinion testimony:

The facts or data in the particular case upon which an
expert bases an opinion or inference may be those
perceived by or made known to the expert at or before
the hearing. If of a type reasonably relied upon by
experts in the particular field in forming opinions or
inferences upon the subject, the facts or data need not
be admissible in evidence.

Rugemer did not provide "sufficient reasons which logically support his

opinion" as to the cause of plaintiff's death nor who bore responsibility for the

accident. Rosenberg, 352 N.J. Super. at 402. As the judge noted, the report

does not contain an explanation as to how a possible classification alone creates

liability. There must be evidentiary support for an expert's conclusion, and the

expert must base his opinion on facts or data. See Bahrle v. Exxon Corp., 279

N.J. Super. 5, 30 (App. Div. 1995). Rugemer's report did not provide sufficient

detail, and it did not sufficiently indicate that his opinion and conclusions were

based on factual evidence. Thus, the motion judge properly barred the report

from evidence.

II.

Plaintiffs contend the judge improperly determined that Diversified did

not or could not have had knowledge that it hired an incompetent subcontractor.

In his written decision, the motion judge stated that:

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 No evidence has been provided to this court's
satisfaction that [d]efendant Diversified had any
indication that anyone working for J[.]C[.] Rack,
including Mr. Jose Avalos[,] who operated the forklift
on the date in question, was anything but competent to
do the job requested. Even if this court were to find
that J[.]C[.] Rack was incompetent by means of any
liability associated with the actions of Mr. Avalos, and
that such incompetence is what led to the death of
plaintiff, plaintiff cannot prove that [d]efendant
Diversified knew or should have know[n] of said
incompetence.

Principals are not liable for the actions of independent contractors, absent

one of three exceptions: (1) the principal retains control of the manner and

means of the performance of the contracted work; (2) the principal retains an

"incompetent contractor"; and (3) the activity is a nuisance per se. Majestic

Realty Assocs., Inc. v. Toti Contracting Co., 30 N.J. 425, 431 (1959). In this

case, the issue is whether Diversified hired an "incompetent contractor."

[T]o prevail against the principal for hiring an
incompetent contractor, a plaintiff must show that the
contractor was, in fact, incompetent or unskilled to
perform the job for which he/she was hired, that the
harm that resulted arose out of that incompetence, and
that the principal knew or should have known of the
incompetence.

[Puckrein v. ATI Transp., Inc., 186 N.J. 563, 576
(2006).]

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 In Puckrein, plaintiff-decedents were killed when their automobile was

struck by an unregistered and uninsured tractor-trailer with defective brakes. Id.

at 567. The tractor-trailer was owned by ATI Transport, Inc. (ATI) and was

transporting material for Browning-Ferries Industries of New York, Inc. (BFI)

at the time of the accident. Ibid. The judge granted summary judgment to BFI,

and we affirmed. Ibid. However, our Supreme Court reversed, explaining that,

"when a person engages an independent contractor to do work that is not itself

a nuisance, he is not vicariously liable for the negligent acts of the contractor in

the performance of the contract." Id. at 574. "Generally . . . the principal is not

vicariously liable for the torts of the independent contractor if the principal did

not direct or participate in them." Ibid. (alteration in original) (quoting

Baldasarre v. Butler, 132 N.J. 278, 291 (1993)).

In Mavrikidis v. Petullo, the owner of a company hired an independent

contractor to repave the asphalt at his premises. 153 N.J. 117, 125 (1998). The

contractor's dump truck collided with the plaintiff's car, causing her injuries. Id.

at 124-25. The plaintiff sued the contractor and the owner. Id. at 129. A jury

found that the owner was "negligent in engaging a careless, reckless or

incompetent contractor," and that the negligence was the proximate cause of the

plaintiff's injuries. Id. at 130. But we reversed, concluding there was

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insufficient evidence to support a finding that the owner was negligent in hiring

the contractor. Id. at 131. The Court affirmed, explaining that there was no

evidence that the contractor was incompetent to perform the work it was hired

to do. Id. at 137. The Court held that even if the contractor was incompetent,

the owner had no knowledge of that. Id. at 138. As the Court opined, the poor

condition of the contractor's trucks did not evince its incompetency to replace

asphalt—the job it was hired to perform. Id. at 138-42.

Thus, in Mavrikidis, the plaintiff's injury occurred not as part of the

paving job, but rather during the hauling of equipment to the job site. Id. at 125.

This is a vastly different case than that presented in Puckrein, in which the

plaintiffs were injured while ATI transported material for BFI—the job that ATI

was hired to do. 186 N.J. at 567. In Puckrein, transportation was not peripheral

to the contract—like it was in Mavrikidis—but rather it was the essence of

contract. Id. at 578. The Court explained that, "the hauler's basic competency

included, at a minimum, a valid driver's license, a valid registration certificate,

and a valid liability insurance identification card," and that without those, the

hauler "ha[d] no right to be on the road at all." Ibid. "[A]n employer may be

charged with negligence in hiring an independent contractor where it is

demonstrated that he should have known, or might by the exercise of reasonable

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care have ascertained, that the contractor was not competent." Id. at 579

(citation omitted). "The extent of the inquiry obviously depends on the status

of the principal and the nature of the task that the contract covers." Ibid.

David Longo (David), Diversified's warehouse manager, oversaw the

Schreiber job performed by J.C. Rack, and was responsible for ensuring that the

subcontractors were doing the correct job. When asked if he ever made a

determination as to whether the person operating the forklift at the time of the

incident was licensed, David testified that it was "up to [Rodriguez] to make

sure his crew[] . . . members have licenses." He said that Diversified ensured

that Rodriguez was licensed, but that it was Rodriguez's responsibility to make

sure that an employee operating a forklift was licensed.

David knew that not all of J.C. Rack's crew members were licensed. But

he testified that whoever operates a forklift has to be licensed and that the

subcontractor has the ability to decide to which crew members to assign

responsibilities. David said that he asked Rodriguez if the forklift driver was

licensed approximately one month after the accident, and Rodriguez replied that

he was. Though aware that forklift operators must be licensed or certified,

Stephen Longo (Stephen), Diversified's logistics coordinator/in-house project

manager, stated that he was "not sure if [J.C. Rack] had [its] forklift license or

A-0761-18T4
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not, but we require [it] to have a forklift license," and that Diversified does not

"track" a subcontractor's forklift license. Additionally, Diversified contends that

it "did not load or unload the truck," "did not dismantle and/or bundle the racking

systems," and "did not reinstall the racking systems." Diversified's project

manager visited the job site for approximately thirty minutes each day but was

not on-site when the accident occurred.

At the time of the accident, Rodriguez believed Avalos was certified to

operate a forklift, but thereafter learned that Avalos's prior certification had

expired. Diversified also states that Avalos only worked "on and off" for J.C.

Rack for a few months and operated a forklift for J.C. Rack "a few times prior

to the accident." Diversified did not know which J.C. Rack crew members

would be working at the time of the accident. Diversified also cites to

Mavrikidis, in which our Court stated that, "[i]mposing a duty on a contractee

to check the driving record and credentials of the contractor's employees or to

inspect the contractor's equipment would impose a very onerous burden on the

contractee." 153 N.J. at 142.

Here, Diversified hired J.C. Rack to unload trucks, which was merely

"part of the overall process" because J.C. Rack was hired to "complete multiple

tasks," such as disassembling the racking system, bundling and packing it,

A-0761-18T4
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loading it onto a truck, unloading it at a second location, unbundling and

unpacking it at this second location, and then reassembling it. As such, it claims

that the use of the forklift "was only part of the tasks required by the contract"

between Diversified and J.C. Rack. The issue however still hinges on whether

J.C. Rack's employee was properly certified to operate a forklift or if he was an

incompetent contractor. As this was crucial to the contract between Diversified

and J.C. Rack—and not merely peripheral—Diversified could potentially be

liable for hiring an incompetent independent contractor.

But to prevail against Diversified, plaintiffs must show that: (1) J.C. Rack

was incompetent or unskilled to perform the job for which it was hired; (2) J.C.

Rack's incompetence caused plaintiff's death; and (3) Diversified knew or

should have known of the incompetence. Puckrein, 186 N.J. at 576. Diversified

inquired into whether Rodriguez—as J.C. Rack's owner—was licensed. The fact

that J.C. Rack employed individuals who were not certified forklift drivers does

not necessarily mean that Diversified retained an incompetent contractor

because J.C. Rack performed other tasks on the job, like disassembling racking

systems, bundling and packing them, and then unbundling and reassembling

them. Diversified essentially concedes it had a duty to inquire about

certifications, and it did so by ensuring that Rodriguez himself was certified to

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operate forklifts. However, in accordance with Mavrikidis, Diversified did not

have a duty to check every J.C. Rack employees' credentials. 153 N.J. at 142.

III.

Plaintiffs argue that Diversified is liable under general negligence

principles for J.C. Rack's and Avalos's conduct. "[O]rdinarily[,] negligence

must be proved and will never be presumed, . . . indeed there is a presumption

against it, and . . . the burden of proving negligence is on the plaintiff."

Buckelew v. Grossbard, 87 N.J. 512, 525 (1981). "[A] negligence cause of

action requires the establishment of four elements: (1) a duty of care, (2) a

breach of that duty, (3) actual and proximate causation, and (4) damages."

Jersey Cent. Power & Light Co. v. Melcar Util. Co., 212 N.J. 576, 594 (2013).

Whether one owes a duty is a question of law to be decided by the trial judge.

Carvalho v. Toll Bros. & Developers, 143 N.J. 565, 572 (1996). "[N]o bright

line rule . . . determines when one owes a legal duty to prevent a risk of harm to

another." Wlasiuk v. McElwee, 334 N.J. Super. 661, 666 (App. Div. 2000).

The imposition of a duty depends on several factors, including: (1) "the

relationship of the parties"; (2) "the nature of the attendant risk"; (3) "the

opportunity and ability to exercise care"; and (4) "the public interest in the

proposed solution." Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439 (1993).

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"Ultimately, . . . the question of whether a duty exists is one of 'fairness' and

'public policy.'" Wlasiuk, 334 N.J. Super. at 666-67 (citations omitted). Our

Supreme Court "[c]ombin[es] and weigh[s] all relevant factors" such as,

the foreseeability of the nature and severity of the risk
of injury based on the defendant's actual knowledge of
dangerous conditions, the relationship of the parties and
the connection between the defendant's responsibility
for work progress and safety concerns, and the
defendant's ability to take corrective measures to rectify
the dangerous conditions[.]

[Alloway v. Bradlees, Inc., 157 N.J. 221, 231-32
(1999).]

"[G]eneral and subcontractors have a joint, non-delegable duty to maintain a

safe workplace that includes ensur[ing] prospective and continuing compliance

with the legislatively imposed non-delegable obligation to all employees on the

job site, without regard to contractual or employer obligations." Id. at 237

(second alteration in original) (internal quotation marks and citation omitted).

[T]he State's statutory imposition of a duty on the
general contractor expressed a clear legislative
intention "to ensure the protection of all of the workers
on a construction project, irrespective of the identity
and status of their various and several employers, by
requiring, either by agreement or by operation of law,
the designation of a single repository of the
responsibility for the safety of them all."

[Id. at 238 (quoting Bortz v. Rammel, 151 N.J. Super.
312, 321 (App. Div. 1977)).]

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 In Carvalho, a town retained an engineer to prepare plans for the

construction of a sewer service. 143 N.J. at 569. A general contractor was hired

for the project, who hired a subcontractor. Ibid. Later, the engineer hired an

inspector as the site representative. Id. at 570. A trench collapsed at the site,

killing an employee of the subcontractor. Id. at 571-72. The employee settled

with the general and subcontractors, id. at 572, but the Court analyzed the

connected foreseeability of the harm and considerations of fairness and public

policy to determine whether to hold the engineer liable. Id. at 573.

The Court recognized that, "[w]hereas the magnitude and likelihood of

potential harm are objectively determinable, the propriety of imposing a duty of

care is not." Ibid. (quoting Weinberg v. Dinger, 106 N.J. 469, 485 (1987)).

Although in many cases a duty of care can arise simply
from the determination of the foreseeability of harm,
usually more is needed to find such a duty, that more
being the value judgment, based on an analysis of
public policy, that the actor owed the injured party a
duty of reasonable care.

[Ibid. (internal quotation marks and citations omitted).]

Here, we consider "fairness and policy," by weighing foreseeability based

on: (1) Diversified's actual knowledge of dangerous conditions; (2) the

relationship between Diversified and plaintiff; and (3) the connection between

Diversified's responsibility for work progress and safety concerns, including its

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ability to take corrective measures to rectify dangerous conditions. Alloway,

157 N.J. at 231-32.

It is reasonably foreseeable that a subcontractor could be injured because

of dangerous conditions on one of Diversified's jobs. Plaintiff was one of

Diversified's subcontractors. Diversified however did not have direct contact

with plaintiff on-site, rather plaintiff worked directly with J.C. Rack⸻another

Diversified subcontractor. The relationship between the parties is still

contractual, though a little more attenuated, as there was no direct contact

between the two on-site.

In Carvalho, the issue was the relationship between a subcontractor's

employee and an engineer hired by the town in which the construction was

taking place. 143 N.J. at 569, 571-72. But this case is distinguishable, even

though plaintiff is akin to the subcontractor's employee, because Diversified is

not akin to the engineer, but instead, the general contractor. Nevertheless,

Diversified—who did not supervise nor was it required to supervise the work of

J.C. Rack—took corrective measures to ensure that forklift drivers be certified

to operate forklifts.

IV.

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 Plaintiffs argue that OSHA regulations should be considered in

determining Diversified's and Schreiber's liability. The purpose of the

Occupational Safety and Health Act (the Act), 29 U.S.C. §§ 651 to 678, is "to

provide for the general welfare, to assure so far as possible every working man

and woman in the Nation safe and healthful working conditions and to preserve

our human resources[.]" 29 U.S.C. § 651(b). The Act requires "employers to

comply with specific OSHA standards and also imposes a general duty on

employers to provide a workplace 'free from recognized hazards that are

causing or are likely to cause death or serious physical harm.'" Gonzalez v. Ideal

Tile Importing Co., Inc., 371 N.J. Super. 349, 359-60 (App. Div. 2004)

(emphasis omitted) (quoting 29 U.S.C. § 654(a)).

But, "the finding of an OSHA violation does not ipso facto constitute a

basis for assigning negligence as a matter of law; that is, it does not constitute

negligence per se." Kane v. Hartz Mountain Indus., Inc., 278 N.J. Super. 129,

144 (App. Div. 1994). Thus, while the existence of an OSHA violation may be

evidence that a company did not follow the OSHA regulations, it is not evidence

that a company was liable as either a property owner or a general contractor. As

a result, OSHA regulations may be considered in determining Diversified's and

Schreiber's liability, but such regulations are not determinative.

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 V.

Finally, plaintiffs contend that there exists a genuine issue of material fact

to preclude summary judgment. When reviewing an order granting summary

judgment, we apply "the same standard governing the trial court[.]" Oyola v.

Xing Lan Liu, 431 N.J. Super. 493, 497 (App. Div. 2013). A court should grant

summary judgment when the record reveals "no genuine issue as to any material

fact" and "the moving party is entitled to a judgment or order as a matter of law."

R. 4:46-2(c). We owe no special deference to the motion judge's conclusions

on issues of law. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140

N.J. 366, 378 (1995). We consider the facts in a light most favorable to the non-

moving party. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995).

"An issue of fact is genuine only if, considering the burden of persuasion at trial,

the evidence submitted by the parties on the motion, together with all legitimate

inferences therefrom favoring the non-moving party, would require submission

of the issue to the trier of fact." R. 4:46-2(c).

Here, plaintiffs argue that there is a fact issue about whether Diversified

was aware of the training, supervision, and certification of the forklift operator

unloading plaintiff's truck. But we see no genuine issues of material fact. As

to Diversified, summary judgment was appropriate for reasons previously

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explained. And as to Schreiber, summary judgment was appropriate because

Schreiber had no control over the methods or means of unloading the truck, and

did not have knowledge that Diversified hired J.C. Rack to aid in dismantling

and reassembling the shelving units.

Affirmed.

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