ALAN O'CONNELL VS. MR. JOHN (L-1222-17, CAMDEN COUNTY AND STATEWIDE)
A-1760-19
| N.J. Super. Ct. App. Div. | Jun 25, 2021Background:
- On April 1, 2015 Alan O’Connell (tile finisher employed by a subcontractor) exited an off-site portable toilet placed near a curb at a Network Construction Co. jobsite, tripped on the curb, and suffered serious right-knee injuries.
- Plaintiffs sued general contractor Network and porta-toilet provider Mr. John; Mr. John settled pretrial and was dismissed; trial against Network proceeded to an eight-day jury trial.
- Plaintiffs’ liability expert (Estrin) testified Network was solely responsible under OSHA, the AIA prime contract terms, and industry practice to place the toilet safely and supervise a competent person; defense experts (Bisbee, Cronin) disputed an OSHA violation and said placement was customary.
- The trial court denied Network’s pretrial and renewed motions to strike Estrin and declined to include Model Jury Charge 5.10G (industry/OSHA standards) or any specific OSHA instruction after a charge conference in which Network opposed an OSHA charge.
- The jury found Network 100% negligent, awarded plaintiffs approximately $2.52 million (inclusive of prejudgment interest), and denied comparative negligence; Network moved for a new trial; the trial court denied the motion.
- Network appealed alleging (1) failure to instruct the jury on OSHA/Model Charge 5.10G (invited/plain error), and (2) the 100% apportionment was against the weight of the evidence; the Appellate Division affirmed.
Issues:
| Issue | Plaintiff's Argument (O'Connell) | Defendant's Argument (Network) | Held |
|---|---|---|---|
| Whether omission of Model Jury Charge 5.10G / OSHA instruction was reversible error | OSHA evidence was admissible to show duty; omission harmless because general negligence was properly charged | Trial court should have instructed jury that OSHA evidence bears on duty/standard of care per Model 5.10G; omission prejudiced Network | Omission not reversible: Network invited the court not to give the OSHA charge; on plain-error review the charge omission was not clearly capable of producing an unjust result given the evidence and general negligence instructions |
| Whether trial court abused discretion by admitting plaintiff's expert (Estrin) or permitting OSHA/contract testimony (net opinion) | Estrin grounded opinions in OSHA, contract, inspections and site facts; his testimony assisted the jury | Estrin offered legal conclusions, relied on generic OSHA references, and gave net opinions beyond his expertise; testimony should have been struck or limited | No abuse of discretion: Estrin disclosed bases in his report and testimony; cross-examination explored contested points; net-opinion rule did not require exclusion |
| Whether the jury’s 100% allocation of fault to Network was against the weight of the evidence (new trial) | Evidence supported sole fault: Network controlled jobsite, Carman was supervisor, placement was foreseeable/hazarded and could have been corrected | Mr. John (porta-toilet company) and O'Connell had contributing roles; photos and evidence supported comparative fault; 100% allocation was unreasonable | No miscarriage of justice: record supported jury credibility findings, trial judge found the verdict within reasonable bounds, and appellate court declines to substitute its view for jury credibility determinations |
Key Cases Cited
- Prioleau v. Kentucky Fried Chicken, Inc., 223 N.J. 245 (N.J. 2015) (jury-charge standards and importance of proper instructions)
- Alloway v. Bradlees, Inc., 157 N.J. 221 (N.J. 1999) (OSHA violations do not alone create an independent tort duty)
- Willner v. Vertical Reality, Inc., 235 N.J. 65 (N.J. 2018) (plain-error review of invited error)
- Polzo v. County of Essex, 196 N.J. 569 (N.J. 2008) (net-opinion rule and expert foundation requirements)
- Buckelew v. Grossbard, 87 N.J. 512 (N.J. 1981) (expert testimony admissibility and limits)
- Dolson v. Anastasia, 55 N.J. 6 (N.J. 1969) (deference to jury on credibility and limits on appellate reweighing)
- Risko v. Thompson Muller Auto. Group, 206 N.J. 506 (N.J. 2011) (definition of miscarriage of justice for new-trial review)