This matter arises from a repetitive motion injury allegedly sustained by a worker at an office building construction site. The injured worker, plaintiff Raymond Tarabokia, Jr., was employed as an electrician by an independent electrical subcontractor hired by the project’s general contractor, defendant Structure Tone, to install wiring for lighting fixtures. Plaintiff suffered permanent injuries in both arms by repeatedly using a specialized power tool over the course of several weeks on the work site. He sued defendant in negligence
The issue is whether, under the circumstances presented, the general or prime contractor has a duty to assure the safety of an employee of a subcontractor, and, more specifically, whether the scope of that duty encompasses the manner and means of using equipment supplied by the subcontractor at the contractor’s work site. Because the material facts are not genuinely in dispute, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540,
Our review of the trial court’s grant of summary judgment is de novo, employing the same standard used by the trial court. Prudential Prop. & Cas. Ins. Co., supra, 307 N.J.Super. at 167,
Defendant was the general contractor on a 2008 construction project to fit out the interior of five floors of an office building in Plainsboro owned by Novo Nordisk, Inc. Their relationship was governed by an American Institute of Architects (AIA) standard industry form contract that obligated defendant to perform work for the owner in accordance with contract documents. The contract also provided that it “shall not be construed to create a contractual relationship of any kind ... between any persons or entities other than the [ojwner and [general] [contractor.”
In its capacity as general contractor, defendant hired Hatzel & Buehler (H & B), one of the twenty largest electrical contractors in the country, to perform the electrical work at the job site. Although defendant had not entered into a written agreement with the subcontractor, they executed a series of purchase orders.
H & B, in turn, hired plaintiff out of his union hall on January 18, 2008. At the time, he was approximately one year and ten months beyond the completion of his training as a union journeyman. Upon his employment with H & B, plaintiff signed an Employee Safety Training Acknowledgement and Commitment Statement that evidenced his receipt and review of the H & B company safety handbook and his participation in H & B’s safety orientation.
H & B assigned plaintiff the task of setting anchors to support light fixtures in a concrete ceiling supported by steel beams. H & B’s foremen directed plaintiff where the ceiling anchors were to be installed and selected a DX351 powder-actuated anchoring tool manufactured by Hilti (tool or DX351 tool) for use in the installation. The tool, which uses a gunpowder charge to drive anchors into concrete or steel, is analogous to a gun that recoils when fired as the anchor strikes and penetrates the hard surface.
To reach the ceiling, plaintiff had to use either a ladder, scaffolding, or an extension pole for the tool. At H & B’s direction, plaintiff used the extension pole provided by his employer, which allowed him to stand on the ground while firing anchors into the ceiling. When the pole extension is used as it is intended, the worker’s hands remain at chest level, never extending past shoulder height. The use of the pole extension resulted in quicker performance because plaintiff did not have to climb a ladder every time he sought to set a new anchor.
Before plaintiff started work, H & B arranged for a Hilti representative to train plaintiff on the proper and safe operation of the tool at the job site. Plaintiff received a card from Hilti signifying his completion of that training. Additionally, plaintiff attended safety meetings conducted by H & B roughly once a week throughout the duration of his work on the project.
Plaintiff began using the tool at the beginning of March 2008. He performed the task without anti-vibration gloves. He estimates that he fired the tool approximately twenty times per hour, eight hours a day, for about one month. He first experienced slight soreness in his right wrist around April 8, 2008, and after the pain worsened, reported it to his employer on April 10, 2008. He was removed from the job the next day. His left wrist symptoms began later that month. Plaintiff was later diagnosed with multiple level polyneural compression syndromes, which were determined to be caused by his repetitive use of the tool.
Pursuant to its contract with Novo Nordisk, defendant was obligated to “designate
If the [c]ontract [d]oeuments give specific instructions concerning construction means, methods, techniques, sequences or procedures, the [contractor shall evaluate the jobsite safety thereof and, except as stated below, shall be fully and solely responsible for the jobsite safety of such means, methods, techniques, sequences or procedures.
In accordance with its contractual obligations to the owner, defendant appointed one of its representatives, Mike Pebley, as the site safety manager (SSM), and prepared a site-specific safety management plan (SSMP) for the project, available for review on site by all subcontractors, including H & B. The stated goal of the SSMP was “to provide for the systematic identification, evaluation and prevention or control of general workplace hazards, specific job hazards and potential hazards that may arise from foreseeable conditions on the Novo Nordisk project.” The SSMP’s declared policy was to “[pjrovide a safe working environment” and to “[njever accept any unsafe working condition for any reason and to take immediate corrective action when any safety violation is observed.”
The SSMP also addressed the responsibilities of the SSM:
The SSM is the primary contact for health and safety during field activities. Has the authority to stop all work if conditions are judged to be dangerous to on-site personnel or the public, and reports and investigates accidents and near misses.
While the SSMP stated that “[i]t is first the responsibility of the project superintendent to regularly observe job site, work areas, tools, and equipment daily and take all appropriate actions necessary to eliminate or control any hazards that are identified!,]” the plan also emphasized defendant’s limited supervisory role over subcontractors:
This [SSMP! provides assistance in complying with 29 CFR Part 1926 10SHA] regulations ____The program is in no way a substitute for subcontractor safety programs. The maintenance of safe operations and the elimination of unsafe practices and conditions remains the responsibility of Structure Tone subcontractors. Structure Tone does not direct, control or supervise the actual performance of subcontractor scopes of work.
[ (Emphasis added).]
To this end, the SSMP required all subcontractors to, among other things, designate a person with “the responsibility and full authority to enforce the [safety and loss prevention] program!,]” “assumfe] responsibility for complying with all applicable standards, regulations, rules or guidelines” to ensure safety, “establish safety methods and good practices to be carried out by [their] workers!,]” and make at least weekly inspections and report any unsafe practices or conditions. Furthermore, because “[r]ules cannot be written to cover every possible situation that may arise at the ... job site!,]” the SSMP placed certain responsibilities upon the site employees, “namely the protection of themselves and protection of fellow workers.”
Additionally, all project subcontractors were required to hold their own safety meetings, known as “toolbox talks.” H & B held these meetings weekly, which plaintiff attended. H & B was also responsible
Defendant’s project manager, James O’Halpin, was present at the job site for the duration of the project, which was completed free of accidents. He regularly observed the subcontractor work being done during the course of the project and does not recall seeing any H & B employees using the Hilti tool with a pole extension or in a manner non-compliant with regulations promulgated under the Occupational Safety and Health Act, 29 U.S.C.A. §§ 651-678 (OSHA). Neither did Pebley, defendant’s SSM.
According to O’Halpin, defendant’s SSMP “refers to the job in general” and defendant “want[s] to make sure all our subs have their own safety plan for their own specific work.” Consequently, H & B had composed its own site-specific manual. And because defendant’s employees were not trained in the specific pieces of equipment that each subcontractor used in its portion of the project, defendant had to rely on the proper training and expertise of its subcontractors to use their tools correctly. In fact, none of defendant’s representatives ever discussed with H & B employees how they performed their work, much less directed the manner and means of their performance. By the same token, H & B employees never sought advice from defendant as to the conduct of their work.
In support of his negligence claim, plaintiff offered an OSHA expert, Samuel Gualardo, and a biomechanical expert, Andres Calderon. Gualardo cited 29 C.F.R. § 1926.16(a), which requires a prime contractor to maintain “overall responsibility for compliance” with OSHA requirements on the job site. Another OSHA regulation, 29 C.F.R. § 1926.302(e), addresses the proper and safe use of powder-actuated tools and states generally that “[p]ersonal protective equipment shall be in accordance with subpart E of this part.”
Relying on Alloway v. Bradlees, Inc., 157 N.J. 221,
it’s clear to me that no issue of fact exists, rand] that the motion for reconsideration should be denied. [H & B] held regular weekly safety meetings. The pow[d]er [actuated] tools were furnished by [H & B]. Plaintiff was trained in them, was certified in them.
[Defendant] did not participate in the means and method[s] of performing a subcontractor’s work. In fact, they wouldn’t. That’s why you hire subcontractors .. . [TJhere’s nothing here to indicate that, somehow, there was some blatant ... misuse of a tool or the manner in which they were doing their work, which would call to the attention of [defendant]____
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So the control of plaintiffs work really fell to [H & B] ... [and defendant] relied upon H & B and their trained employees to correctly use the tools, and defendant had no knowledge about what constitutes the normal use of the pow[d]er [actuated] tool or that [H & B] would not and did not exercise proper supervision of its job.
On appeal, plaintiff raises the following issues:
I. THE TRIAL COURT’S REQUIREMENT OF PROOF OF ACTUAL NOTICE BY A GENERAL CONTRACTOR OF DANGEROUS CONSTRUCTION PRACTICES NEGATES DECADES OF DECISIONAL LAW RECOGNIZING A PUBLIC INTEREST IN ENFORCEMENT OF SAFE WORKPLACE PRACTICES
II. BECAUSE DEFENDANT, STRUCTURE TONE[,] KEPT CONTROL OF THE CONSTRUCTION WORKSITE AND ASSIGNED ITSELF ALL SAFETY MONITORING AND ENFORCEMENT BY CONTRACTUAL AGREEMENT, IT IS LIABLE TO PLAINTIFF
A The Trial Court Failed to Recognize Binding Precedent
B. Structure Tone Retained Control of Safety Audits and Enforcement
III. THE ONLY WRITTEN CONTRACT ASSIGNS STRUCTURE TONE CONTROL OF THE WORKSITE AND SAFETY RESPONSIBILITIES
IV. STRUCTURE TONE RETAINED CONTROL OF MEANS AND METHODS
V. RAYMOND TARABOKIA IS A THIRD PARTY BENEFICIARY OF THE CONTRACT SIGNED BY STRUCTURE TONE
VI. THE FACTS IN QUESTION MUST BE LEFT TO A JURY
Having reviewed the record de novo, we conclude that summary judgment was properly granted.
There is no duty of care based solely on a finding that OSHA regulations had been violated. Alloway, supra, 157 N.J. at 236,
At common law, a general contractor enjoyed broad immunity from liability for injuries to an employee of a subcontractor resulting from either the condition of
While the general contractor’s immunity, “ ‘[is not] disturbed by the exercise of merely such general superintendence as is necessary to insure that the subcontractor performs his agreement^]’ ” Muhammad, supra, 176 N.J. at 199,
The fact that none of these exceptions are implicated in the summary judgment proofs in this case does not end our inquiry, however. The more modern approach to the traditional common law rule is for courts to identify, weigh and balance a combination of factors in determining the existence of a general contractor’s duty of reasonable care, Alloway, supra, 157 N.J. at 230,
Alloway involved a truck driver employed by an excavating subcontractor that had agreed to deliver crushed stone to a paving (general) contractor for a construction project. Alloway, supra, 157 N.J. at 225,
In finding that the general contractor had a duty to ensure the driver’s safety, the Court considered the following combination of factors: “the foreseeability of harm, the relationship between the parties, and the opportunity and capacity to take corrective action.” Id. at 233,
The Court also found that there was “a substantial and close relationship between the parties that could and did implicate workplace safety concerns.” Ibid. Notably, the principal of the subcontractor was also one of the general contractor’s employees, and any breakdown of delivery equipment would delay the paving contractor’s work. Id. at 233,
Moreover, this relationship gave the general contractor “both the opportunity and capacity ... to exercise authority and control over the equipment of [the subcontractor] if safety concerns were implicated.” Ibid. Indeed, the general contractor’s president acknowledged that his supervisors could dismiss the subcontractor’s trucks from the site if they had any problems, including concerns they could not be operated without danger to any employees in the area. Ibid. Control was further reflected by the general contractor’s attempt to repair the very truck that caused the injury the day before the accident. Ibid.
Accordingly, “as a matter of fairness and sound policy[,]” the combination of the foreseeability of harm, the relationship between the parties, and the opportunity and capacity to take corrective action supported the imposition of a duty of reasonable care on the general contractor to assure the safety of the driver on the work site. Id. at 233,
Weighing these same considerations, the Court in Carvalho v. Toll Brothers and Developers, 143 N.J. 565,
In addition to the foreseeability factor, the relationship of the parties in Carvalho was contractual, id. at 574,
Applying these principles to the faets of this case, we conclude that summary judgment was properly granted. Unlike Alloway, the general contractor here had no special or direct contractual relationship with the subcontractor and had not helped to create the dangerous condition. By contrast, in Alloway, the contractor had unsuccessfully tried to fix the truck that caused the plaintiffs injury and failed to warn her of the danger it posed and of which the contractor was well aware. Alloway, supra, 157 N.J. at 227,
This case presents a very different factual scenario. As noted, defendant had no formal contractual relationship with the subcontractor for whom plaintiff worked. Rather, their arrangement was governed by a series of work orders that did not address worker safety concerns. While the SSMP did address such concerns, it expressly placed on subcontractors the responsibility for ensuring the safety of their own workers.
As to the foreseeability of the risk of harm, there is no proof that defendant knew plaintiff was using the DX351 tool, much less handling it improperly and over a prolonged period of time. Nor had defendant any reason to know of the possible medical consequences of such use, namely that it may result in a repetitive motion injury. Unlike Alloway and Carvalho, where the dangerousness of the condition, although not inherent in the work performed, was nonetheless immediate and clearly visible, here the actual risk of harm concerned a latent injury not readily apparent that developed gradually from the repeated use of the tool over an extended time period. Plaintiff emphasizes that defendant performed daily safety inspections of the work site, but the risk here was not immediately obvious and did not involve an unsafe or hazardous physical condition on the premises. Nor did
As defense counsel acknowledged at oral argument before us, while actual knowledge of the risk of harm may be dispositive for the imposition of a duty of care, Carvalho, supra, 143 N.J. at 576-77,
Indisputably, H & B dictated the work plaintiff was to perform at the job site and the tool to use. H & B not only supplied plaintiff with that tool, but also arranged his training on it and directed him to use it with an extension pole instead of a ladder or other elevating device. Defendant, on the other hand, had no control over the choice of equipment selected by H & B, nor did defendant involve itself in the means or methods by which H & B’s employees, including plaintiff, performed their work. To the contrary, control over plaintiffs work fell squarely within H & B’s expertise, experience and knowledge as a highly reputable electrical subcontractor, qualities that defendant could reasonably rely upon in assuring H & B’s workers’ safety on site. See Slack v. Whalen, supra, 327 N.J.Super. at 194,
To be sure, the contractual arrangement between defendant and the developer assigned to defendant the overall responsibility for enforcing safety rules on the job. To that end, defendant, among other things, issued an SSMP that clarified the allocation of worker safety responsibility and put all on-site subcontractors on notice that the “maintenance of safe operations and the elimination of unsafe practices and conditions remains the responsibility of [defendant’s] subcontractors.” The SSMP further stated that defendant does not “direct, control or supervise the actual performance” of subcontractor work and that the information in the SSMP is to assist subcontractors in safety compliance. Thus, each subcontractor was required to designate its own safety officer to make weekly inspections and “assum[e] responsibility for complying with all applicable standards, regulations, rules or guidelines.” In other words, according to the SSMP, each subcontractor was responsible for its own safety equipment and the safety of its employees.
It is also uncontroverted that H & B well understood its responsibility. As noted, H & B required plaintiff to be trained in the use of the DX351 tool. H & B held weekly safety sessions that plaintiff attended. H & B also issued its own safety manual to all its employees. Under these circumstances, we find no basis in the record to impose a duty of care upon defendant that would essentially require its active involvement in the details of its subcontractors’ business.
In the first place, we need not decide the applicability of OSHA to resolve this matter because “non-compliance with [OSHA] standards does not alone create a viable cause of action, nor does it necessarily place a tort duty of care on the general contractor.” Costa, supra, 408 N.J.Super. at 372-73,
We have taken into account this factor, along with all other relevant considerations, in determining the existence of a duty in this matter. We are satisfied that under these circumstances, assuring compliance with OSHA regulations simply does not amount to the kind of control over the subcontractor’s work sufficient to implicate any duty on defendant’s part to protect H & B’s employees. As previously stated, although defendant maintained broad, general superintendence over the overall results to be accomplished by its subcontractors, defendant exerted no control over the means and details of that accomplishment, which required discrete occupational skills beyond the scope of defendant’s regular business. Moreover, there is no indication in the record that an OSHA investigation was conducted or that OSHA violation notices were issued to any entity working on the construction project.
None of the other factors deemed controlling for the imposition of a duty of care in Alloway and Carvalho are existent here. The very nature of the risk of harm involved in this case was incidental to, and arose out of, the highly specialized work of plaintiffs employer. Even though, as the motion judge correctly recognized, plaintiff and defendant shared responsibility for job site safety, defendant’s share of that responsibility should not be enlarged to include prevention of the type of unforeseeable harm suffered by plaintiff. The risk of harm here was not sufficiently foreseeable given its latency and defendant’s lack of any knowledge about plaintiffs use of the DX351 tool. Additionally, there was no contractual agreement with plaintiffs employer for defendant to provide safety oversight and nothing in their relationship suggested that defendant had the capacity to control plaintiffs work assignment or the tools he employed in its execution. And lastly, defendant’s expectation that on-site subcontractors use their occupational expertise and knowledge to monitor and ensure their own workers’ safety was objectively reasonable.
Weighing these factors in the context of all the circumstances presented, we find no basis in the summary judgment record for imposing on defendant a duty to ensure plaintiffs safe and proper use of equipment selected and supplied by his employer. Our sense of basic fairness and consideration of public policy does not compel a different result.
We deem all other issues raised by plaintiff to be of insufficient merit to warrant discussion in this opinion. R. 2:ll-3(e)(l)(E).
Affirmed.
Notes
Because the claims of his wife, Adrienne Tarabokia, are derivative of plaintiff's negligence claims, “plaintiff" will refer to Raymond Tarabokia, Jr.
Subpart E, 29 C.F.R. §§ 1926.95 to 1926.107, does not specifically mention hand protection, or what personal protective equipment (PPE) should be used when operating powder-activated tools.