General Contractor Found Not Responsible for Injury to Subcontractor Employee

Defendant Louis Gargiulo Co., Inc. (“Gargiulo”) was hired as a general contractor to perform work at the Hudson County Schools of Technology. Defendant hired Adamo Brothers Construction (“Adamo”) to perform a portion of the work. Plaintiff, an Adamo employee, suffered an injury while operating a jackhammer on the job site. The issue in Sutuj v. Louis Gargiulo Co., Inc., 2021 N.J. Super. Unpub. LEXIS 16 (App. Div. Jan. 6, 2021) was whether Gargiulo could be held responsible for that injury.

Plaintiff was operating a jackhammer at the job site, but was not wearing protective goggles. As he was breaking up concrete, a piece of metal mesh from the concrete flew into his eye, causing him to suffer serious injury. Plaintiff testified that he forgot his goggles and had left them at home. He had worn safety goggles to the site previously but did not look for another pair, nor tell his boss that he forgot them.

He filed suit against the general contractor Gargiulo claiming that it was:

[N]egligent for ignoring its duty to provide a safe workplace for him, to supervise, direct, and control the work site to prevent dangerous or hazardous work conditions, and to oversee the safety of the site. Additionally, plaintiff claimed defendant violated the regulations and standards of the Occupational Safety and Health Administration Act (OSHA) and the New Jersey Construction Safety Act. 

Defendant Gargiulo moved for summary judgment, arguing that it did not owe plaintiff a duty of care. The trial court judge granted the motion, concluding as a matter of law, that the defendant did not owe plaintiff a duty of care. The judge found that “Adamo, as the subcontractor, was responsible for the safety of its employees, provided its employees safety equipment, and directed their work.”

This appeal ensued. The Appellate Division pointed out that a general contractor “is not liable for injuries to employees of the [sub]contractor resulting from either the condition to the premises or the manner in which the work is performed.” It is presumed that the independent contractor and its employees are “sufficiently skilled” to recognize dangers associated with their task and adjust their methods accordingly to ensure their safety.

There are exceptions to this general principle when “the general contractor retains control of the manner and means of doing the work contracted for” and when “he knowingly engages an incompetent subcontractor or where the work contracted for constitutes a nuisance per se, namely, is inherently dangerous.”

The Appellate Division found that none of these exceptions applied. The general contractor never told the subcontractor’s employees how to do the job. There was no evidence that the general contractor hired an “incompetent subcontractor.” Last, there was no evidence that, if the work was inherently dangerous if it was performed with the safety equipment provided by the subcontractor.

Hence, the Appellate Division affirmed the trial court’s decision, granting summary judgment to the defendant general contractor Gargiulo.

Tags: duty of care, independent contractor, injury