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General Contractor Found Not to Be Liable for Injury To Subcontractor’s Employee at Job Site

By on August 27, 2021 in Negligence with 0 Comments

The defendant Louis Gargiulo Company, Inc. (“Gargiulo”) was hired as a general contractor to perform certain work at the Hudson County Schools of Technology (“HCST”).  Defendant Gargiulo hired Adamo Brothers Construction (“Adamo”) as its subcontractor to perform a portion of the removal and replacement of concrete at HCST.  Plaintiff Luis Alfredo Sutuj, an Adamo employee, was injured while operating a jackhammer at the site without wearing protective goggles.  The issue in Sutuj v. Gargiulo Company, Inc., 2021 N.J. Super. Unpub. LEXIS 16 (App. Div. January 6, 2021) was whether the defendant general contractor could be held liable to the plaintiff, an employee of its subcontractor, for his injury suffered at the job site.

Plaintiff was injured when he was breaking up the concrete pavement and a piece of metal mesh from the concrete flew into his eye, causing him to suffer serious injury.  He was not wearing protective goggles at the time of the accident because he forgot them and left them at home.  He had worn them previously before the accident, but on the day of the accident, he did not tell anyone he forgot this protective equipment, nor did he look for another pair of goggles.

Plaintiff admitted that he was not familiar with the defendant’s company name and testified that no one other than John Adamo or his coworker gave him instructions on the job site.  Defendant’s foreman testified that he never told Adamo how to take care of his men or the means and methods of how to do the job.  Further, defendant’s foreman testified that Adamo had performed well in the past and he assumed the subcontractor would perform well on the HCST project.

The plaintiff filed a lawsuit against the defendant, HCST and Hudson County (neither HCST nor Hudson County were involved in the appeal, both being dismissed out either voluntarily or by motion).  Plaintiff claimed that the defendant general contractor was responsible for his injury and it was negligent 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.  Also, the plaintiff claimed that the defendant general contractor violated OSHA regulations and the New Jersey Construction Safety Act.

At the trial court level, the defendant moved for a summary judgment, claiming that it did not owe plaintiff a duty of care.  The trial court judge agreed and “found Adamo, as the subcontractor, who was responsible for the safety of its employees, provided its employees safety equipment, and directed their work.”  Thus, the trial court judge held that the defendant, as the general contractor, had no duty to conduct daily inspections at the job site to ensure that Adamo’s employees wore safety goggles.   Further, he found that the defendant did not create a dangerous condition at the job site.

Upon appeal, the plaintiff raised three main points.  First, he contended that “since OSHA–required eye protection would have prevented this accident, there is a material issue of fact as to whether the defendant general contractor breached its duty to provide plaintiff with a reasonably safe place to work.”  Second, he argued that given the defendant’s contractual obligations, it was not unfair to impose a duty on the general contractor.  And last, he contended that summary judgment should have been denied, due to existing material issues of fact.

The Appellate Division found that the trial court correctly determined that defendant did not owe plaintiff a duty of care.  The Court pointed out that ordinarily, a general contractor “is not liable for injuries to employees of the subcontractor resulting from either the condition to the premises or the manner in which the work is performed.”  The underlying premise is that a general contractor “may assume that the independent contractor and its employees are sufficiently skilled to recognize the dangers associated with their task and adjust their methods accordingly to ensure their own safety.” 

The Appellate Division did note that there are exceptions to this general principle.  A general contractor may be liable for a subcontractor’s negligence if the general contractor retains control of the manner and means of doing the work.  Also, a general contractor may be liable where he knowingly engages an incompetent subcontractor or the work contracted for constitutes a nuisance per se, namely is inherently dangerous.

The Appellate Division agreed with the trial court judge that the exceptions did not apply and “that any foreseeable risk of injury to plaintiff on the date of his accident did not give rise to a duty of care on the part of defendant.”  There was no evidence that the defendant controlled how the laborers performed their job.  Also, the record reflected that plaintiff previously wore safety goggles on the job and there was no evidence that the general contractor was aware plaintiff was not wearing his safety goggles when the accident occurred.

There was also no evidence that the subcontractor was an incompetent subcontractor.  To the contrary, the testimony was that Adamo had performed well in the past and it was assumed they would perform well on this project.  Last, there was no evidence that this type of work performed by plaintiff was inherently dangerous. The general contractor defendant was entitled to assume that both the subcontractor and its employees “were sufficiently skilled and equipped to recognize any dangers related to their tasks and that they would take measures to ensure their safety.”

As for the OSHA violation due to the failure to wear protective goggles, the trial judge correctly noted that the violation of OSHA regulations without more would not constitute the basis for an independent or direct tort remedy.  Thus, the Appellate Division was satisfied that “where defendant did not retain control of the manner and means of the work for which it hired Adamo, defendant did not knowingly engage an incompetent subcontractor, and the concrete work performed by plaintiff was not inherently dangerous,” that the trial court judge correctly granted summary judgment to defendant.  Thus, the trial court’s decision dismissing this matter was affirmed.

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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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