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Court Finds Contractor Not Responsible For Accidental Death Of Subcontractor’s Employee

By on November 1, 2019 in Negligence with 0 Comments

Plaintiffs Walter Friedauer and Robert Friedauer, as Executors of the Estate of Paul Friedauer, brought a wrongful death action against defendant Ashbritt Environmental Inc. (Ashbritt).  Ashbritt was the state’s prime contractor for the hurricane or other natural disaster debris recovery, remediation and disposal in Brick Township due to Hurricane Sandy.  Ashbritt had subcontracted some of the work to defendant Glenside Equipment Company (Glenside), decedent Paul Friedauer’s employer.  In Friedauer v. Scheuffer, 2019 N.J. Super. Unpub. LEXIS 2105 (App. Div. October 11, 2019), the issue on appeal was whether Ashbritt could be held responsible for the death of the decedent Friedauer who was killed in an accident in the course of his employment.

Mr. Friedauer had been directing traffic during the course of his employment with Glenside when he was struck and fatally injured by a motor vehicle.  The defendant Ashbritt had moved successfully for a dismissal via summary judgment.  The trial court judge had concluded that Ashbritt “owed no duty to Glenside’s employees while they perform the subcontracted work.”  Further, the trial judge “determined Ashbritt retained no control over the manner and means of how Glenside performed its work, did not knowingly engage an incompetent subcontractor, and did not subcontract inherently dangerous work.”  The trial court judge took into consideration the foreseeability of the injury, the relationship of the parties, the nature of the risk involved, and the ability to exercise care, and the public interest and concluded that, as a matter of law, Ashbritt owed no duty to Glenside’s employees.

Plaintiff had obtained an expert that the terms of the Ashbritt-Glenside subcontract required Asbritt to conform to Occupational Safety and Health Administration (OSHA Regulations).  The plaintiff’s expert opined that Ashbritt failed to comply with OSHA regulations and its failure to monitor Glenside to ensure its employees complied with OSHA regulations “render Ashbritt ultimately responsible for the safety of the work site and the fatal accident.”

The trial court judge noted that whether or not Ashbritt owed a duty to the decedent was a question for the court, not the plaintiff’s expert.  The Court noted that OSHA did not cite Ashbritt for any violations.  Moreover, the trial court judge correctly determined that non-compliance with OSHA standards, without more, does not create a cause of action.  The Appellate Division further noted that, rather, “OSHA Standards are to be considered by the court in making a threshold determination of whether a general contractor owes a duty of care to employees of the subcontractor.”            

The Appellate Division agreed with the trial court’s rationale and decision.  It noted that the issue in this case was not whether Ashbritt was entitled to immunity but, rather whether it owed a duty.  The Appellate Division found that there was no genuine issue of fact that required resolution by a jury and that Ashbritt was entitled to summary judgment as a matter of law.  Thus, the Appellate Division affirmed the trial court’s decision, dismissing the wrongful death action filed against defendant Ashbritt.

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Betsy G. Ramos

About the Author

About the Author:

Ms. Ramos is an Executive Committee Member and Co-Chair of the Litigation Department at Capehart Scatchard, P.A. located in Mount Laurel, New Jersey. She is an experienced litigator with over 25 years experience handling diverse matters. Practice areas include tort defense, business litigation, estate litigation, tort claims and civil rights defense, construction litigation, insurance coverage, employment litigation, shareholder disputes, and general litigation.

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