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General Contractor Found Not Responsible for Injury to Subcontractor Employee

By on January 15, 2021 in Negligence with 0 Comments

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.

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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.

For the years 2020 and 2021, Ms. Ramos was selected for inclusion in The Best Lawyers in America© in the practice area of Litigation - Insurance. The attorneys on this list are selected based upon the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical area and legal practice area. A complete description of The Best Lawyers in America© methodology can be viewed via their website at: https://www.bestlawyers.com/methodology.

In 2021, Capehart Scatchard and Ms. Ramos received the “Best Law Firm” ranking in the area of Litigation – Insurance (Metro, Tier 3) published by U.S. News & World Report and Best Lawyers®. Law firms included on the list are recognized for professional excellence with consistently impressive ratings from clients and peers. To be eligible for a ranking, a firm must have at least one attorney who has been included in the current edition of Best Lawyers in America, which recognizes the top five percent of practicing lawyers in the United States. Betsy Ramos (Litigation – Insurance) was recognized for this prestigious award in the 2021 edition. For a description of the “Best Law Firm” selection methodology please visit: https://bestlawfirms.usnews.com/methodology.aspx.

“Best Law Firms” is published by Best Lawyers in partnership with U.S. News & World Report. For a description of the selection methodology please visit: https://bestlawfirms.usnews.com/methodology.aspx.

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