Fernandes v. Dar Development Co. (073001)
119 A.3d 878
N.J.2015Background
- On Oct. 9, 2004 Rolando Fernandes, a plumbing subcontractor, was buried chest-high when a residential sewer trench collapsed while he connected pipe; he sued general contractor DAR Development/Construction for negligence.
- Parties agreed collapse would not have occurred if trench-protection had been used; dispute focused on whether DAR (general contractor) or Fernandes’ employer Freitas (subcontractor) had responsibility to provide/require protection.
- Evidence: Fernandes had long plumbing experience but testified Freitas lacked certified trench boxes (used plywood bracing); Freitas’ president Mario testified Freitas had purchased OSHA-certified trench boxes and held safety meetings.
- Experts disagreed: plaintiff’s expert said DAR was the controlling employer with a non-delegable duty to ensure safe subcontractors and competent persons; defendant’s expert blamed a nearby sand-filled gas-line trench for destabilizing the sewer trench.
- Trial court refused DAR’s request for a comparative-negligence instruction; jury awarded plaintiff $792,000. Appellate Division affirmed; Supreme Court granted certification limited to the comparative-negligence issue.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an injured employee's comparative negligence may be submitted to the jury in a negligence action against a third party (general contractor) | Fernandez: Suter bars consideration of employee fault in workplace-accident suits against third parties; alternatively, no evidence showed he unreasonably confronted a known risk | DAR: Kane controls; employee expertise and conduct may be considered and jury should assess whether Fernandes unreasonably entered trench without protection | Court: Employee negligence may be submitted when evidence shows the worker unreasonably confronted a known risk and had no meaningful choice; Suter remains limited to defective-product/machine cases; here no evidence to submit plaintiff’s negligence to jury (affirmed) |
| Whether Suter should be extended beyond product/machine-defect cases to all workplace negligence suits against third parties | Fernandez: extend Suter broadly to protect workers who lack meaningful choice to refuse hazardous work | DAR: Suter is limited to product liability; Kane supports allowing comparative negligence in construction-site cases | Court: Declines extension; Suter limited to defective-machine context; Kane affirmed — comparative negligence can apply in construction/worksite cases when supported by evidence |
| Whether OSHA/regulatory violations establish duty/negligence and affect comparative-fault submission | Fernandez: statutory/regulatory protections and non‑delegable duties counsel against assessing worker fault | DAR: Worker’s knowledge and experience relevant to whether he acted reasonably despite regulations | Court: OSHA standards inform duty and are evidence of negligence but do not conclusively establish it; worker’s knowledge/training and employment pressures are relevant to jury’s prudence analysis |
| Whether there was sufficient record evidence to warrant a comparative‑negligence instruction here | Fernandez: record lacks evidence that he knowingly and unreasonably proceeded into a dangerous trench | DAR: Fernandes’ experience and prior option to use protection supports jury consideration of his negligence | Court: Record lacked evidence that Fernandes knew of the specific risk (e.g., sand-filled adjacent trench) or had meaningful choice—trial court properly refused instruction |
Key Cases Cited
- Suter v. San Angelo Foundry & Machine Co., 81 N.J. 150 (N.J. 1979) (bars consideration of employee comparative negligence in suits against manufacturers where employee used defective machinery in a foreseeable manner)
- Kane v. Hartz Mountain Industries, Inc., 278 N.J. Super. 129 (App. Div. 1994) (allows submission of employee negligence to jury in third‑party workplace negligence suits; distinguishes Suter)
- Kane v. Hartz Mountain Industries, Inc., 143 N.J. 141 (N.J. 1996) (affirming the Appellate Division without opinion)
- McGrath v. American Cyanamid Co., 41 N.J. 272 (N.J. 1964) (workforce compulsion and whether a worker acted as a reasonably prudent person under the circumstances)
- Davis v. Brickman Landscaping, Ltd., 219 N.J. 395 (N.J. 2014) (discusses when expert testimony is required to establish the standard of care)