MICHAEL Z. JONES VS. DJS CONSTRUCTION (L-0518-16, CUMBERLAND 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NOT FOR PUBLICATION WITHOUT THE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
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3622-18T3

MICHAEL Z. JONES

Plaintiff-Appellant,

v.

DJS CONSTRUCTION and
SERGIO CASTRO, individually
and doing business as DJS
CONSTRUCTION, MELROSE
COURT HOMES, LP, CAPTIAL
BANK OF NEW JERSEY,
CARLSON BROTHERS, INC.,
CITY OF VINELAND,
VINELAND HOUSING
AUTHORITY, VINELAND
HOUSING DEVELOPMENT
CORPORATION, CITY OF
VINELAND/LICENSES AND
INSPECTIONS: UNIFORM
CONSTRUCTION CODE,
EASTERN HIGHREACH
COMPANY, INC., JOSE CARL
HERNANDEZ-RODRIQUEZ,

Defendants,

and
PROVIDENCE BUILDING
COMPANY, INC.,

Defendant-Respondent.
____________________________

Submitted October 20, 2020 – Decided December 16, 2020

Before Judges Gilson and Gummer.

On appeal from the Superior Court of New Jersey, Law
Division, Cumberland County, Docket No. L-0518-16.

LaBletta and Walters, LLC, and Law Office of Conrad
J. Benedetto, attorneys for appellant (Christian P.
LaBletta and Conrad J. Benedetto, on the briefs).

Bennett Bricklin & Saltzburg LLC, attorneys for
respondent (Wayne Partenheimer, on the brief).

PER CURIAM

Plaintiff Michael Z. Jones, who was injured by a forklift while working

on a construction site, appeals from the trial court's order granting summary

judgment in favor of defendant Providence Building Company, Inc.

(Providence). Plaintiff argues that the trial court erred in finding that Providence

did not owe a duty of care to plaintiff. We affirm because Providence did not

breach any duty it may have owed to plaintiff.

On this summary-judgment appeal, we view the facts in a light most

favorable to plaintiff. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536

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(1995). We give deference to a trial court's factual findings but not to the

application of law to those findings. Lee v. Brown, 232 N.J. 114, 126-27 (2018).

We apply the same legal standard used by the trial court. RSI Bank v.

Providence Mut. Fire Ins. Co., 234 N.J. 459, 472 (2018). That standard was

articulated by our Supreme Court in Brill: "whether the competent evidential

materials presented, when viewed in the light most favorable to the non-moving

party, are sufficient to permit a rational factfinder to resolve the alleged disputed

issue in favor of the non-moving party." 142 N.J. at 540. See also Grande v.

Saint Clare's Health Sys., 230 N.J. 1, 24 (2017).

Plaintiff was employed by Carlson Brothers, Inc. (Carlson) as a laborer,

working at the construction site for a housing project. Carlson was the general

contractor for that project and needed additional carpenters to help finish the

siding work on the project. A Carlson representative contacted Kenneth

Norman, a Providence vice president, and asked if Providence could provide two

carpenters who could work on Carlson's project. 1 Because Providence did not

1
The Carlson witness testified that he had requested carpenters who could do
siding work. Norman testified that the Carlson representative had asked for
carpenters, with no specifics as to job duties, and had not asked for someone
who could drive a forklift. Their testimony collectively demonstrates that the
Carlson representative did not ask for someone who could operate a forklift.

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have any available carpenters, Norman contacted a representative of DJS

Construction (DJS) and asked if DJS could provide a couple of carpenters to

Carlson. When the DJS representative told Norman that DJS could provide the

carpenters, Norman did not ask about their qualifications or training. DJS

subsequently sent two carpenters to Carlson's project. DJS charged Providence

an hourly rate for the carpenters; Providence charged Carlson a higher hourly

rate for them. In its invoice, Providence charged Carlson for "2 Carpenters,"

with no reference to forklifts or forklift operators. When the carpenters arrived

at the worksite, Todd Bowling, who was Carlson's on-site project superintendent

and plaintiff's supervisor, had no expectation that they would operate forklifts.

On the day of the accident, Bowling directed plaintiff to remove drywall

debris from some units and told one of the DJS carpenters to use a telehandler

forklift to bring a trash bin to one of the units, dump the trash bin when it was

full, and move it to the next unit. Even though subcontractors were permitted

to operate forklifts only if Bowling had determined that they were competent to

do so, he did not ask the DJS carpenter if he knew how to operate one.

While he was directing the DJS carpenter who was operating the forklift,

plaintiff stood approximately five feet away from the forklift on the passenger

side. Plaintiff believed that the carpenter could see him and knew where he was

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standing. As the carpenter drove the forklift forward, plaintiff was trying to turn

around when his right foot was caught in the right rear tire of the forklift and he

fell. Plaintiff suffered severe injuries as a result.

Plaintiff contends that Providence breached a duty of care it owed to him

to determine that the workers it provided to Carlson were competent and

qualified and breached that duty when it failed to ask DJS for any information

regarding its carpenters, their qualifications, or their training. Plaintiff also

argues that under OSHA regulations Providence, like Carlson, had a duty to

make the worksite safe. The trial court granted Providence's summary-judgment

motion, finding that Providence, having been asked by Carlson to provide

carpenters, did not have a duty to plaintiff regarding the DJS carpenter's forklift-

operating skills.

"[G]eneral negligence principles govern the determination of whether a

legal duty should be imposed on a contractor for injuries sustained by another

contractor's employee." Slack v. Whalen, 327 N.J. Super. 186, 191 (App. Div.

2000). To prevail in a negligence case, a plaintiff must demonstrate that (1) the

defendant owed the plaintiff a duty of care; (2) the defendant breached that duty;

(3) the defendant's breach of its duty actually and proximately caused the

plaintiff's injury; and (4) the plaintiff sustained damages. Fernandes v. DAR

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5
Dev. Corp., 222 N.J. 390, 403-04 (2015). Whether a defendant owes a plaintiff

a duty and the scope of that duty are legal questions. Shields v. Ramslee Motors,

240 N.J. 479, 487-88 (2020).

Determining whether a duty exists "involves identifying, weighing, and

balancing several factors—the relationship of the parties, the nature of the

attendant risk, the opportunity and ability to exercise care, and the public interest

in the proposed solution." Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439

(1993). The foreseeability of an injury "is 'crucial' in determining whether a

duty should be imposed." J.S. v. R.T.H., 155 N.J. 330, 338 (1998) (quoting

Carter Lincoln-Mercury, Inc. v. EMAR Grp., Inc., 135 N.J. 182, 194 (1994)).

"Foreseeability requires a determination of whether the defendant was

reasonably able to ascertain that his allegedly negligent conduct could injure the

plaintiff in the manner it ultimately did." Robinson v. Vivirito, 217 N.J. 199,

212 (2014). Foreseeability "is the major consideration for imposing a tort duty,

[but] additional factors should [also] be considered, such as 'the relationship of

the parties, the nature of the attendant risk, the opportunity and ability to

exercise care and the public interest . . . .'" Slack, 327 N.J. Super. at 191 (quoting

Alloway v. Bradlees, Inc., 157 N.J. 221, 230 (1999)). An OSHA violation may

be considered with those factors in determining the existence and scope of a

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duty but does not alone create a "tort duty of care." Costa v. Gaccione, 408 N.J.

Super. 362, 372-73 (App. Div. 2009); see also Tarabokia v. Structure Tone, 429

N.J. Super. 103, 120 (App. Div. 2012). "Whether a duty exists is ultimately a

question of fairness." Goldberg v. Hous. Auth. of Newark, 38 N.J. 578, 583

(1962). See also Olivo v. Owens-Illinois, Inc., 186 N.J. 394, 401 (2006).

Under that standard, did Providence have a duty? It had a duty to provide

competent carpenters. And it met that duty. The record is devoid of any

evidence that the DJS worker was not a competent carpenter. To the contrary,

project superintendent Bowling testified that he had not observed any problems

with his work as a carpenter. The forklift accident may be an indication of the

carpenter's lack of forklift-operating skills. It is not evidence of his

incompetency as a carpenter.

Providence did not have a duty to provide competent forklift operators.

To impose that duty on Providence would be unfair. Carlson asked Providence

to provide carpenters, not equipment operators. As Providence's expert stated,

the "two trades are entirely different and require different specialty training –

therefore they are not interchangeable in skills, abilities and/or training."

According to that expert, "[i]n union construction fields, the two different trades

can't even be in the same union," with forklift operators in the operating

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engineers' union and carpenters in the carpenters' union. Plaintiff's counsel

speculated during oral argument before the trial court that "everybody in the

trade uses a telehandler." His speculation, unsupported by any expert or lay -

witness testimony, is not sufficient to create a genuine issue of material fact

under Brill, 142 N.J. at 540.

Plaintiff faults Providence for not asking DJS for information about its

carpenters' qualifications or training. Questions about their carpentry

qualifications or training would not have shed any light on their ability to

operate forklifts. Providence had no reason to know that Carlson needed forklift

operators when it had requested carpenters or that Carlson would use the skilled

carpenters it had requested as forklift operators. Providence could not foresee

that failing to ask DJS about its carpenters' qualifications would lead to a forklift

accident because it could not foresee that the carpenters would be used as forklift

operators. Thus, Providence had no reason and no duty to ask DJS about its

carpenters' ability to operate forklifts.

Because Providence did not have a duty to provide qualified forklift

operators and because it fulfilled the duty it had to provide competent carpenters,

we affirm.

Affirmed.

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