Opinion
DOCKET NO. A-4133-08T3 DOCKET NO. A-4430-08T3
11-21-2011
ROMAN BUDNIK and KRYSTYNA BUDNIK, A-4629-08T3 Plaintiffs/Cross-Respondents, and TRAVELERS PROPERTY CASUALTY, Plaintiff/Intervenor-Appellant/Cross-Respondent, v. STATE OF NEW JERSEY, a public entity, ARMM-RAMM, INC., ARMM ASSOCIATES, INC., Defendants-Respondents/Cross-Respondents, and JARMEL KIZEL ARCHITECTS & ENGINEERS, INC., Defendant-Respondent/Cross-Appellant. ROMAN BUDNIK, Plaintiff-Appellant/Cross-Respondent, and KRYSTYNA BUDNIK, Plaintiff/Cross-Respondent, and TRAVELERS PROPERTY CASUALTY, Plaintiff/Intervenor-Cross-Respondent, v. STATE OF NEW JERSEY, a public entity, ARMM-RAMM, INC., ARMM ASSOCIATES, INC., Defendants-Respondents/Cross-Respondents, and JARMEL KIZEL ARCHITECTS & ENGINEERS, INC., Defendant-Respondent/Cross-Appellant. ROMAN BUDNIK, Plaintiff-Cross-Respondent, and KRYSTYNA BUDNIK, Plaintiff-Appellant/Cross-Respondent, and TRAVELERS PROPERTY CASUALTY, Plaintiff/Intervenor-Cross-Respondent, v. STATE OF NEW JERSEY, a public entity, ARMM-RAMM, INC., ARMM ASSOCIATES, INC., Defendants-Respondents/Cross-Respondents, and JARMEL KIZEL ARCHITECTS & ENGINEERS, INC., Defendant-Respondent/Cross-Appellant.
Alexander W. Ross, Jr., argued the cause for appellant/cross-respondent Travelers Property Casualty (Rakoski & Ross, P.C., attorneys; Janice L. Heinold and Mr. Ross, on the brief). Kenneth S. Javerbaum argued the cause for appellant/cross-respondent Roman Budnik (Javerbaum Wurgaft Hicks Kahn Wikstron & Sinins, attorneys; Mr. Javerbaum, on the briefs). Michael S. Raff argued the cause for appellant/cross-respondent Krystyna Budnik (Raff and Raff, attorneys; Mr. Raff, on the briefs). Andrew J. Carlowicz, Jr., argued the cause for respondent/cross-appellant Jarmel Kizel Architects & Engineers, Inc. (Hoagland, Longo, Moran, Dunst & Doukas, attorneys; Mr. Carlowicz, on the briefs). Paul Daly argued the cause for respondent/cross-respondent State of New Jersey (Hardin, Kundla, McKeon & Poletto, attorneys; Mark S. Kundla, of counsel and on the briefs). Margolis Edelstein, attorneys for respondents/cross-respondents ARMM-RAMM and ARMM Associates, join in the briefs of respondent/cross-appellant Jarmel Kizel.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, Ashrafi and Nugent.
On appeal from the Superior Court of New
Jersey, Law Division, Mercer County, L-2964
06.
Alexander W. Ross, Jr., argued the cause for
appellant/cross-respondent Travelers Property
Casualty (Rakoski & Ross, P.C., attorneys;
Janice L. Heinold and Mr. Ross, on the brief).
Kenneth S. Javerbaum argued the cause for
appellant/cross-respondent Roman Budnik
(Javerbaum Wurgaft Hicks Kahn Wikstron &
Sinins, attorneys; Mr. Javerbaum, on the
briefs).
Michael S. Raff argued the cause for
appellant/cross-respondent Krystyna Budnik
(Raff and Raff, attorneys; Mr. Raff, on the
briefs).
Andrew J. Carlowicz, Jr., argued the cause
for respondent/cross-appellant Jarmel Kizel
Architects & Engineers, Inc. (Hoagland,
Longo, Moran, Dunst & Doukas, attorneys; Mr.
Carlowicz, on the briefs).
Paul Daly argued the cause for
respondent/cross-respondent State of New
Jersey (Hardin, Kundla, McKeon & Poletto,
attorneys; Mark S. Kundla, of counsel and on
the briefs).
Margolis Edelstein, attorneys for
respondents/cross-respondents ARMM-RAMM and
ARMM Associates, join in the briefs of
respondent/cross-appellant Jarmel Kizel.
PER CURIAM
Plaintiffs Roman and Krystyna Budnik appeal from the Law Division's summary judgment dismissal of their personal injury and per quod complaint. Plaintiffs sued the State, among other defendants, for damages resulting from catastrophic injuries that Roman Budnik sustained when he fell through the roof of a State-owned building. He was working for the contractor the State had hired to repair the deteriorated roof. Plaintiffs contend the summary judgment motion record raised triable issues as to whether the State is liable under the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3, for a dangerous condition of its public property and for the negligence of its employees. The Law Division concluded the State has immunity from the claims of an independent contractor's employee injured as a result of the hazardous condition the State hired the contractor to remedy. For the reasons that follow, we affirm.
Intervenor Travelers Property Casualty also appealed, but settled its claim against all defendants. Following their appeals, plaintiffs settled with all defendants except the State. Accordingly, the issues in this appeal involve the dismissal of plaintiffs' claims against the State. We address only the facts and legal arguments relevant to those issues.
I.
A.
The following facts were developed in the summary judgment motion record. The State of New Jersey Department of Treasury, Division of Property Management and Construction (the State or DPMC), hired a contractor, Renaissance Coatings, Inc. (Renaissance), to replace a roof on a State building known as the DEPTCOR warehouse in Trenton. The DPMC also hired Jarmel Kizel Architects & Engineers, Inc. (Jarmel Kizel) as a consultant. Jarmel Kizel hired ARMM-RAMM, Inc. or ARMM Associates, Inc. (referred to collectively as ARMM-RAMM) as the "roof monitor."
It is not clear from the record whether ARMM-RAMM, Inc. and ARMM Associates, Inc. operated as separate entities, but that issue is now moot.
The State, its consultants, and its contractor were all aware of the condition of the DEPTCOR roof by the time the accident happened in November 2005. The State learned of the roof's deteriorated condition after it hired the engineering firm, Miller-Remick Corp., in April 2001 to evaluate the roof. Miller-Remick reported a "risk of catastrophic roof failure due to corrosion of the roof deck," which had "severe deterioration" in too many areas to permit repair.
Nearly three years later, on February 6, 2004, the DPMC developed a "Scope of Work" (the Scope Document) with the objective of removing the existing 56,840 square-foot roof down to the metal decking and replacing it with a new roof system (the Project). In May 2004, pursuant to the Scope Document, the DPMC contracted with Jarmel Kizel to be its consultant and design the new roof. In June 2004, Jarmel Kizel inspected the roof surface, underside, and mounting systems; and reported that the roof was in poor condition with numerous flaws, which included "clustered areas of rust" on the underside. Although no area had "rusted through completely to be a hole," it was "logical to assume that larger areas of the deck [were] rusted and not visible from the underside." Jarmel Kizel recommended complete replacement of the roof.
On August 25, 2005, the DPMC contracted with Renaissance to be the contractor for the project. Jarmel Kizel hired ARMM-RAMM as a sub-consultant to provide roof monitors to continuously inspect and monitor the construction work. The roof inspections made by Renaissance and ARMM-RAMM further disclosed the extent to which the roof had deteriorated.
To replace the roof, Renaissance employees removed the "top layer" of roofing until the metal decking was exposed. Renaissance foreman Kevin McCarthy and ARMM-RAMM monitor Robert Martorano inspected the decking and Martorano decided which sections required replacement. According to Renaissance superintendent Thomas Walker, Renaissance employees were told to stay away from areas that needed to be replaced.
Although construction was scheduled to begin on September 12, 2005, Renaissance did not start to replace the roof until October 17, 2005. According to Renaissance foreman McCarthy, on November 23, 2005, a piece of the old roof deck was partially cut so that it could be replaced, but it was left connected on one side and was not immediately removed. McCarthy and another Renaissance employee, Dan Shultz, were preparing to place a piece of the new decking approximately three feet wide and twenty or twenty-five feet long, when wind "kind of . . . like shook it." Roman Budnik ran to McCarthy's side to try to stabilize the new decking, "but he went in front of it instead of on the side and he went through" the roof. McCarthy testified that the accident happened because the old decking was partially detached, not because it was rotted.
Roof monitor Martorano was inside the building when plaintiff fell. He was looking at the deck to be replaced, which "looked like [S]wiss cheese, very small holes in the deck," when plaintiff fell through the roof. Martorano said the roof opening through which Roman fell "looked like a trapdoor."
Plaintiff's accident was the second that day. Approximately ten minutes earlier, another Renaissance employee was carrying a piece of decking when it was "caught by wind" and "cut [him] in the face."
Renaissance superintendent Walker knew that employees were cutting old decking on the day of the accident, and that plaintiff fell through a piece of decking that was scheduled for replacement that day. Walker, however, was not at the work site at the time of the accident and testified "we could not determine" after the accident whether the cuts in the location where plaintiff fell were made by Renaissance employees or by a prior contractor.
The Department of Labor Occupational Safety and Health Administration (OSHA) investigated the accident and fined Renaissance for failing to use fall protection equipment and for failing to erect a warning line "around all sides of the roof work area." Renaissance corrected the violations during OSHA's investigation.
B.
The contract documents specifically addressed Project safety and compliance with OSHA regulations. The Scope Document required the consultant to ensure that the "design documents . . . state that the Contractor shall comply with all OSHA safety requirements such as: safety devices [and] exposure to weather." The Scope Document also required that the "roofing work shall be performed between March 15 and November 15."
The contract between the State and Renaissance provided that the Director of the DPMC would be represented on the construction site through authorized representatives or technical staff. The contract incorporated "General Conditions" that described the duties of the technical staff:
According to the "General Conditions" section of the contract documents, the Director is authorized to administer the design, engineering, and construction of all State buildings and facilities.
This technical staff will conduct on-site inspections, maintain logs of construction progress and problems encountered, review and process contractors' invoices including stored materials on site, attend job meetings, serve as liaison between the architect/engineer and contractors, prepare and submit reports on special problems associated with the job, evaluate and process change orders, and generally remain fully cognizant and informed by the contractors of every aspect of ongoing construction. The Director's representatives have only those duties whichThe General Conditions also authorized the Director to terminate the Renaissance contract if the contractor "persistently or repeatedly refuses or fails . . . to supply enough properly skilled workers or proper materials" or "is guilty of a substantial violation of a provision of the contract documents or otherwise defaults or neglects to carry out the work in accordance with the contract documents . . . ."
are required of an owner; responsibility for completion of this project, pursuant to the contract documents, remains that of the contractor(s).
Jarmel Kizel's consulting agreement required it to visit the site regularly and advise the DPMC of the work's "progress and quality." The General Conditions incorporated into Renaissance's contract reflected Jarmel Kizel's oversight of the project, stating that the architect/engineer would "monitor the execution and progress of the work" and "recommend rejection of work which it believes does not conform to the contract documents." Although the General Conditions required "[a]ll personnel [to] observe all regulations in effect at the project site," Jarmel Kizel's authority was limited to monitoring and reporting:
The architect/engineer will not be responsible for, nor have control or charge of, construction means, methods, techniques, sequences of procedures, or safety precautions and programs in connection with
the work. The architect/engineer will not be responsible for, nor have control or charge of, the acts or omissions of the contractors, subcontractors, or any of their agents or employees, or any other person performing any of the work, but shall have the obligation to immediately inform the Director of any inadequate performance of the project.
The Scope Document required ARMM-RAMM to "continuously inspect and monitor the Contractor's work on site and file a daily inspection report to ensure compliance with the contract documents." The subjects to be included in the daily reports specifically included weather conditions and "comments on each phase of work," but did not include safety.
Renaissance did not dispute that the Project documents designated Renaissance as the contractor solely responsible for construction means and methods, safety, and compliance with the OSHA regulations.
C.
Deposition testimony concerning safety responsibility varied. Four State employees testified about safety: Robert Butts, Fred Armstrong, Drew DiDonato, and Donald Juechter. Butts was the DPMC design manager for the Project, but had no responsibility for safety and his involvement ended when construction began. He believed the roof monitors could stop Renaissance's work only if the work did not conform to design specifications; if work was being performed in an unsafe manner, the roof monitors and consultant had no obligation to stop it. Butts also believed Renaissance, rather than Jarmel Kizel or ARMM-RAMM, was responsible for workplace safety, though when asked why the language in the Project documents did not make all of them responsible for safety, he could not answer. He also testified that Jarmel Kizel and ARMM-RAMM, as the State's representatives, were responsible for exercising oversight to assure that Renaissance complied with all OSHA safety requirements. Finally, he believed that the consultant, monitors, and contractor could stop the work due to weather conditions if the weather would affect the building materials.
Armstrong, a construction management specialist with the Department of Corrections (DOC), acted as a liaison between the DOC and DPMC on the Project. When deposed, he responded "no" to the question, "[d]id you know what proper safety precautions would have been appropriate for this job, given the location of the workers?"; and "yes" to the question, "[a]nd you were in a position to insist on having proper safety precautions for this job site, correct?" He also testified that he was "banking on" representatives of DPMC to provide a safe work environment. Although Jarmel Kizel was required to ensure that Renaissance's contract incorporated OSHA requirements, Armstrong did not believe that either Jarmel Kizel or the roof monitors had a duty to ensure that Renaissance actually complied with OSHA regulations.
DiDonato, the initial project manager for the DPMC, viewed his job as administering the Project and assuring that it was constructed according to the plans and specifications, but he was not a safety inspector or monitor, and neither he nor his department enforced OSHA requirements. Citing Article 12 of the General Conditions, DiDonato stated that safety was Renaissance's responsibility. Stopping work for winds was "strictly the contractor['s]" decision.
DiDonato testified that he could have stopped work on the Project for a "blatant" risk, or if he saw "that somebody could get hurt right out in the front of [him]," but he would "say something to the foreman" rather than order the stoppage himself, and he would be acting out of a sense of personal integrity rather than to satisfy a formal duty.
Juechter, a DPMC construction manager, succeeded DiDonato on the Project after construction had begun. Juechter felt he was incapable of recognizing all unsafe work conditions. He believed Renaissance was solely responsible for such conditions. Juechter's lack of authority over construction means and methods meant that he could not do anything to "encourage" Renaissance to meet construction deadlines. In his opinion, Renaissance, not the State, Jarmel Kizel, or ARMM-RAMM, was responsible for safety and OSHA compliance.
Matthew Jarmel and John Zietkiewicz of Jarmel Kizel were deposed. Jarmel, an architect and principal of the company, testified that the firm was responsible for "construction contract administration," which meant monitoring the work to assure its quality, conformity to specifications, and timeliness. According to Jarmel, industry practice was that the contractor, not the architect or roof monitor, was responsible for worksite safety, and only if an architect assumed the responsibility of a contractor would the architect become responsible for jobsite safety. No one at Jarmel Kizel dealt with OSHA issues, and Jarmel did not consider himself an expert at recognizing unsafe worksite conditions. Jarmel testified the roof monitors recorded weather conditions because roofing materials and adhesives were affected by temperature and moisture, and they might be less pliable or adhesive than needed. Jarmel stated that Renaissance made the daily decisions about whether to work, not the consultant or sub-consultant.
Zietkiewicz, an architect and Jarmel Kizel's project manager, agreed with Jarmel that Renaissance had "safety oversight responsibility" because it provided the labor, materials, and equipment. He did not believe that he or the roof monitors had authority to stop work for safety issues.
Martorano, the ARMM-RAMM monitor, testified that he was required to be on the roof whenever feasible, but needed to monitor the roof from inside the building as well. He was not responsible for safety, monitoring the workers on the roof, or deciding when work should stop due to weather or wind conditions. His boss, John Hillman, ARMM-RAMM's Director of Monitoring, testified that the work performed after November 15, 2005, was past the contract deadline.
Renaissance superintendent Walker and foreman Kevin McCarthy testified that Renaissance was solely responsible for safety on the Project. Walker did not believe the roof monitor had authority over Renaissance's employees. Additionally, the representatives of the State and Jarmel Kizel were to speak to him if they wanted to communicate with Renaissance. According to Walker, only he, as Renaissance's representative, could stop work because of increased wind, but he also testified that once a section of roof had been removed, "you have no choice but to" finish replacing it. He explained that decisions about weather conditions were made jointly by the roof monitor and a Renaissance supervisor before work began.
Plaintiffs produced expert reports from Vincent A. Gallagher, Claude V. Baker, P.E., and Alan E. Meade, P.E., who opined that defendants violated provisions of the Project documents, OSHA and PEOSHA regulations, and safety regulations. According to the experts, the State violated the Project documents by failing to staff the Project with personnel who understood their responsibilities and who understood regulatory safety requirements and how to implement them; failing to stop the work of Renaissance in light of its consistent, open and obvious non-use of OSHA fall protection devices; permitting the work to continue past the November 15 deadline where winter weather conditions were hazardous to roofers; and permitting contradictory language to be included in the Project documents relative to safety management. The experts claimed the State violated OSHA and other safety regulations by failing to assure OSHA compliance as the "controlling employer," by failing to provide a safe place to work for its employees, by assigning unqualified personnel who were not fully familiar with OSHA, and by failing to assign safety management for the Project.
The New Jersey Public Employees' Occupational Safety and Health Act, N.J.S.A. 34:6A-25 to -50.
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D.
On November 15, 2006, plaintiffs Roman and Krystyna Budnik filed a negligence complaint against the State, Jarmel Kizel, and ARMM-RAMM, and a professional negligence claim against Jarmel Kizel. After orders were entered concerning a change of track and discovery, Travelers Property Casualty (Travelers) intervened and filed a complaint against defendants seeking statutory reimbursement of the workers' compensation benefits it had paid to plaintiffs.
On April 10, 2008, the trial court granted in part Jarmel Kizel's summary judgment motion, and dismissed plaintiffs' professional negligence claims but not the vicarious liability claims. All defendants subsequently moved for summary judgment on all remaining counts of plaintiffs' complaint and on April 14, 2009, the court granted the summary judgment motions.
The trial court found that the deteriorated roof constituted a dangerous condition of public property, and that the State had knowledge of the dangerous condition. However, the court determined that the contract documents showed that neither the State nor Jarmel Kizel had any involvement or control over the Project's safety methods, which were the sole responsibility of the contractor, Renaissance. The trial court also determined that the documents authorized the State and Jarmel Kizel to stop Renaissance's work only if it failed to meet the technical requirements for the new roof. Similarly, the documents authorized the roof monitors to stop work only if the Project failed to meet the design specifications or evidenced poor workmanship. The court found that testimony to the contrary could not alter the plain meaning of the contractual provisions, and that the existence of a duty of care was a legal question for the court to be determined by construing the contracts as a whole to determine the parties' intention.
Additionally, the court determined that a landowner was not responsible for the safety of the employees of an independent contractor hired to perform knowingly dangerous work unless the landowner retained responsibility for safety or the means of performing the work. The court found that the State clearly delegated those responsibilities. The court also explained that no precedent supported plaintiffs' argument that a landowner's right to make a contractor "abide by the contract" was equivalent to the landowner's control over the work site. Consequently, plaintiffs could not meet the TCA requirement that the State's action or inaction was palpably unreasonable.
The trial court further explained that while the summary judgment standard required it to construe the summary judgment record in plaintiffs' favor, the standard did not require the court to consider speculation and hearsay. Because Walker and Martorano did not have first-hand knowledge of the specific dangerous condition on the roof at the time of the accident, that is, the hole through which plaintiff Roman Budnik fell, the trial court concluded that Walker's speculation that a previous contractor might have made the cuts, and Martorano's hearsay testimony about a wind gust pushing Roman into the decking through which he fell, were incompetent evidence on a summary judgment motion. Accordingly, the evidence was one-sided that Renaissance made the roof cuts that ultimately resulted in the accident.
Plaintiffs appealed from the summary judgment orders as did intervenor Travelers. Jarmel Kizel filed "protective" cross-appeals. The parties subsequently settled all claims except plaintiffs' claims against the State.
II.
Plaintiffs contend the trial court improperly granted summary judgment to the State. They argue they demonstrated triable issues as to whether the State's conduct in failing to protect against the dangerous roof condition was palpably unreasonable; whether the State is liable under the common law landowner liability doctrine; and whether State employees were negligent.
A.
We review the grant or denial of summary judgment de novo. Turner v. Wong, 363 N.J. Super. 186, 198-99 (App. Div. 2003). Summary judgment must be denied if the evidence, "when viewed in the light most favorable to the non-moving party," would "permit a rational factfinder to resolve the alleged disputed issue in" that party's favor. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). However, the evidence must be more than "speculation" or "fanciful arguments," Merchs. Express Money Order Co. v. Sun Nat'l Bank, 374 N.J. Super. 556, 563 (App. Div.), certif. granted, 183 N.J. 592 (2005), appeal dismissed, Jan. 3, 2006, or an "abstract doubt" about a material fact. Hoffman v. Asseenontv.Com, Inc., 404 N.J. Super. 415, 426 (App. Div. 2009) (citing O'Loughlin v. Nat'l Cmty. Bank, 338 N.J. Super. 592, 606-07 (App. Div.), certif. denied, 169 N.J. 606 (2001)). Evidence must not be inadmissible hearsay. Robbins v. City of Jersey City, 23 N.J. 229, 240 (1957).
The New Jersey Legislature has declared as the "public policy of this State that public entities shall only be liable for their negligence within the limitations of [the TCA] and in accordance with the fair and uniform principles established [t]herein." N.J.S.A. 59:1-2. The TCA was "designed to reestablish the immunity of public entities while relieving some of the harsh results of the doctrine of sovereign immunity." Alston v. City of Camden, 168 N.J. 170, 176 (2001) (internal quotations and citations omitted). Moreover, underlying the reenactment of immunity was the Legislature's concern about the effect of liability on the public coffers. Ibid. "Consistent with those purposes, the substance of the [TCA] provides immunity for public entities with liability as the exception." Ibid. (citing Collins v. Union Cnty. Jail, 150 N.J. 407, 413 (1997)). "Thus, notwithstanding the Legislature's stated purpose to ameliorate the harsh results of the strict application of the common-law doctrine of sovereign immunity, 'the approach of the [TCA] is to broadly limit public entity liability.'" Ibid. (quoting Harry A. Margolis & Robert Novack, Claims Against Public Entities, comment to N.J.S.A. 59:1-2 (2001)).
"As the Comment to N.J.S.A. 59:2-1 . . . states, courts should employ an analysis that first asks 'whether an immunity applies and if not, should liability attach.'" Bligen v. Jersey City Hous. Auth., 131 N.J. 124, 128 (1993). Courts should also exercise restraint in accepting novel causes of action against public entities. Comment, N.J.S.A. 59:2-1; Ayers v. Twp. of Jackson, 106 N.J. 557, 574 (1987).
B.
We address first plaintiffs' contention that a triable issue existed as to whether the State's action or inaction in protecting against the roof's deteriorated condition was palpably unreasonable. The TCA narrowly prescribes the liability of a public entity for injury caused by a condition of its property. N.J.S.A. 59:4-2 states:
A public entity is liable for injury caused by a condition of its property if the plaintiff establishes that the property was in dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either:
a. a negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or
b. a public entity had actual or constructive notice of the dangerous condition under section 59:4-3 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.
Nothing in this section shall be construed to impose liability upon a public entity for a dangerous condition of its public property if the action the entity took to protect against the condition or the
failure to take such action was not palpably unreasonable.
Thus, in order to impose liability on the DPMC, plaintiffs must prove: (1) the warehouse roof was in dangerous condition; (2) the dangerous condition created a foreseeable risk of, and actually caused, injury to plaintiff; (3) the DPMC knew of the dangerous condition; and (4) the action taken by the DPMC to protect against the dangerous condition was palpably unreasonable. See Muhammad v. N.J. Transit, 176 N.J. 185, 194 (2003).
Plaintiffs bear the burden of proving that the State acted in a palpably unreasonable manner. Coyne v. N.J. Dep't of Transp., 182 N.J. 481, 493 (2005). "Palpably unreasonable" "implies behavior that is patently unacceptable under any given circumstance." Kolitch v. Lindedahl, 100 N.J. 485, 493 (1985). Although the question of whether a public entity acted in a palpably unreasonable manner is generally one of fact, see Vincitore v. N.J. Sports & Expo. Auth., 169 N.J. 119, 130 (2001), under some circumstances it can be decided as a matter of law. See Muhammad, supra, 176 N.J. at 199-200; Carrol v. N.J. Transit, 366 N.J. Super. 380, 390 (App. Div. 2004); Black v. Borough of Atlantic Highlands, 263 N.J. Super. 445, 451-452 (App. Div. 1993).
Plaintiffs support their contention that they established a triable issue as to the DPMC's palpably unreasonable conduct with the following arguments: the DPMC failed to explain why there was a three and one-half year delay between the first report that the DEPTCOR roof was in danger of imminent failure and the time the DPMC undertook the Project; the DMPC entered into Project contracts in an arbitrary and patently negligent manner because they failed to staff the Project with trained personnel familiar with OSHA regulations who were empowered to stop the work if Renaissance "persistently" failed to perform in accordance with the contract documents; and the DPMC should have stopped the work after realizing the crew was not using fall protection required by OSHA.
The State's delay between its receipt of the Miller-Remick report and its commencement of the Project did not alter its duty to Renaissance and its employees. Renaissance was hired to repair the roof condition as it existed at the time Renaissance entered into its contract with the State. It is undisputed that Renaissance was fully aware of the deteriorated condition of the roof. That the roof was or was not in worse condition than reported in the Miller-Remick report does not alter the State's duty or absence of duty as a landowner. Plaintiffs do not explain how the delay altered either Renaissance's knowledge of the hazardous condition as it existed when Renaissance commenced work, or DPMC's duty. Renaissance was fully aware of the condition of the roof and fully cognizant of its duty to provide for the safety of its employees. Whether the delay was due to an issue of allocation of resources or some other reason is of no moment in the context of the facts of this case. Because Renaissance knew of the roof's condition when work commenced, the condition did not affect the State's duty as a public entity or a landowner.
Plaintiffs' second argument requires an analysis of their contention that the State breached its duty as a landowner to provide a safe workplace for Renaissance's employees. In determining whether the State acted in a palpably unreasonable manner, we must evaluate the State's duty as a landowner in relation to Renaissance, an independent contractor. See Muhammad, supra, 176 N.J. at 197. Plaintiffs do not dispute that Renaissance was an independent contractor. The status of Renaissance as an independent contractor forms an important part of the analysis in determining the scope of the DPMC's duty and liability to Renaissance and its employees. Id. at 196.
A landowner has a non-delegable duty to provide a "reasonably safe place" for business invitees to perform their work. Piro v. Pub. Serv. Elec. & Gas Co., 103 N.J. Super. 456, 463 (App. Div.), aff'd o.b., 53 N.J. 7 (1968). The landowner "has a duty to eliminate or warn of potential operational hazards which are not or may not be obvious and visible to the invitee upon ordinary observation." Izzo v. Linpro Co., 278 N.J. Super. 550, 553 (App. Div. 1995). However, when a landowner hires an independent contractor, "the general principle is that the landowner is under no duty to protect an employee of [the] independent contractor from the very hazard created by the doing of the contract work." Gibilterra v. Rosemawr Homes, Inc., 19 N.J. 166, 170 (1955).
"An independent contractor is a person 'who, in carrying on an independent business, contracts to do a piece of work according to his own methods without being subject to the control of the employer as to the means by which the result is to be accomplished. . . .'" Bahrle v. Exxon Corp., 145 N.J. 144, 157 (1996) (quoting Wilson v. Kelleher Motor Freight Lines, Inc., 12 N.J. 261, 264 (1953)). See also AT&T v. Winback and Conserve Program, Inc., 42 F.3d 1421, 1435 (3d Cir.1994) ("If, however, the agent . . . is only subject to the general control and direction by the principal, the agent is termed an independent contractor."), cert. denied, 514 U.S. 1103, 115 S.Ct. 1838, 131 L.Ed. 2d 757 (1995).Furthermore, "[d]eveloping a project and directing that it be completed within a certain timeframe and within certain specifications . . . remain within the 'general supervisory power over the result to be accomplished rather than the means of that accomplishment.'" Id. at 197 (quoting Mavrikidis v. Petullo, 153 N.J. 117, 136 (1998)).
[Muhammad, supra, 176 N.J. at 196.]
Plaintiffs argue that the State maintained sufficient control over the Project to create a triable issue as to whether it breached the common law non-delegable duty to provide a contractor's employees with a safe workplace. To support that argument, plaintiffs rely upon the contract documents and the conflicting testimony of the State representatives concerning the interpretation of those documents.
The State did not interfere with the means and method by which the work of replacing the roof was done. See Gibilterra, supra, 19 N.J. at 171. The State did not supply Renaissance with materials or safety equipment. See Dawson v. Bunker Hill Plaza Assocs., 289 N.J. Super. 309, 320 (App. Div.), certif. denied, 146 N.J. 569 (1996). To the contrary, the undisputed testimony establishes that Renaissance actually supplied safety equipment to its employees, but the employees declined to use the equipment.
Plaintiffs do not cite to instances of actual interference by the DPMC representatives with the means and method by which Renaissance carried out the Project; instead, in arguing that the State controlled the Project they rely upon general contractual provisions and deposition testimony concerning the interpretation of those provisions. For example, plaintiffs cite the contractual authority of DPMC representatives to stop work, the requirement that Jarmel Kizel make site visits to monitor the work for compliance with the contract documents, the obligation of Jarmel Kizel to supply a full-time roof monitor to continuously inspect and monitor the work, and the contractual authority of the roof monitor to stop the work.
These references encompass the general supervisory power of the DPMC over the work, but do not establish the right to interfere or participate in the day-to-day means and methods of work. Landowner liability is not created by contracts in which the landowner reserves the right to "'such general superintendence as is necessary to insure that the []contractor performs his agreement[.]'" Muhammad, supra, 176 N.J. at 199 (quoting Wolczak v. Nat'l Elec. Prods. Corp., 66 N.J. Super. 64, 71 (App. Div. 1961)).
Plaintiffs maintain that the State was duty bound by the contract documents to enforce OSHA regulations. Plaintiffs also contend that the State breached that duty by staffing the Project with managers unable to recognize OSHA violations. Finally, plaintiffs contend that the conflicting testimony of State employees demonstrated the contracts were ambiguous and therefore precluded a finding as a matter of law that safety responsibility was completely and properly delegated to Renaissance.
Plaintiffs' arguments implicitly attempt to transform a landowner's right to general superintendence - - that is, the right to stop work if a contractor does not abide by the contract - - into control over the worksite and the requirement to enforce specifically anything that falls within the broad general superintendence umbrella. To accept these arguments would require our rejection of longstanding case law.
The contract documents were clear and explicitly provided that Renaissance had the sole obligation for safety on the Project. Renaissance was clearly aware of its safety responsibility.
A contract is ambiguous if its terms are susceptible to alternative interpretations that are reasonable inferences about the parties' intentions concerning the contract as a whole. Schor v. FMS Fin. Corp., 357 N.J. Super. 185, 191 (App. Div. 2002). Whether a provision in a contract is clear or unambiguous is a matter of law. Cooper River Plaza E., LLC v. Briad Grp., 359 N.J. Super. 518, 528 (App. Div. 2003). Here, the contracts unequivocally designated Renaissance as the entity responsible for job safety. Plaintiffs do not cite to a single provision in the contract that expressly identifies the State as being responsible for job safety. Neither the State's general supervisory power, nor the beliefs of its employees based upon references to isolated parts of the contract documents, provide ambiguity in the contract documents or a reasonable interpretation that the State maintained control over the means and methods of performance of Renaissance's work.
Moreover, violations of OSHA regulations do not constitute negligence, but merely evidence of negligence. Alloway v. Bradlees, Inc., 157 N.J. 221, 236 (1999). Consequently, when the State as landowner contracted with an independent contractor to replace a deteriorated roof; contractually charged the independent contractor with the duty to provide for its employees' safety, including complying with OSHA regulations; but, did not use its general supervisory authority to halt the project to enforce OSHA regulations, its conduct was not palpably unreasonable.
We turn next to plaintiffs' contention that the State negligently administered the Project, thereby creating a separate liability claim under N.J.S.A. 59:2-2(a), which provides that a "public entity is liable for injury proximately caused by an act or omission of a public employee within the scope of his employment . . . ." Plaintiffs rely again on the State's alleged negligent administration of the Project and contradictory deposition testimony concerning alleged interpretation of the contract.
The ordinary negligence standard of N.J.S.A. 59:2-2 must give way to the more stringent "palpably unreasonable" standard of N.J.S.A. 59:4-2 when a public employee's negligent conduct causes the plaintiff to come into contact with a condition of property that causes his or her injury. Ogborne v. Mercer Cemetery Corp., 197 N.J. 448, 459 (2009). Plaintiffs' contention is merely a different way of asserting the argument that the State negligently performed its contractual obligations, negligently administered the project, and failed to staff the Project with competent employees, thereby failing to protect Renaissance's employees against the unsafe roof condition. We have already addressed and rejected those arguments, and explained why the State's conduct was not palpably unreasonable.
Plaintiffs also contend the State breached the contract by permitting the work to start beyond the start date and continue beyond the contractual end date. Plaintiffs have cited no authority for the proposition that a public entity's breach of such a provision gives rise to tort liability. The accident occurred on November 23, 2005, and the contract documents provided the work was to be completed by November 15, 2005. Such a decision to permit a project to continue eight days beyond the original end date implicates the exercise of judgment and discretion. Moreover, Renaissance and ARMM-RAMM personnel, not the State, made the decision to work on the day of the accident. Consequently, we reject that argument.
Our decision is consistent with the Supreme Court's decision in Muhammad. Like Muhammad, the State here issued no orders to plaintiff Roman Budnik. Budnik took orders from Renaissance and Renaissance provided fall equipment that was available to Budnik. There is nothing in the record to indicate that Budnik was paid by anyone other than Renaissance, and he ultimately received workers' compensation benefits through Renaissance's workers' compensation carrier. See Muhammad, supra, 176 N.J. at 198.
Our decision is consistent not only with the Supreme Court's decision in Muhammad, but also with the TCA's cautionary comment that courts not accept novel causes of action against public entities. We affirm. We dismiss as moot the appeal of Travelers, Docket No. A-4133-08.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION