Opinion
DOCKET NO. A-1776-13T2
12-12-2014
RUBEN CORONEL, Plaintiff-Appellant/Cross-Respondent, v. SAL BRIGATI, KELLY BRIGATI, NORGE GIRON, LNC CONSTRUCTION CORP. t/a L.N.C. CONSTRUCTION CORP., REYNALDO CONSTRUCTION, Defendants, and P&T SONS CONSTRUCTION CORP., PERIN CONSTRUCTION CORP., Defendants-Respondents/Cross-Appellants.
Gerald H. Clark argued the cause for appellant/cross-respondent (Clark Law Firm, PC, attorneys; Mr. Clark, of counsel and on the briefs). Katherine Herr Solomon (Mauro Lilling Naparty, LLP) of the New York bar, admitted pro hac vice, argued the cause for respondent/cross-appellant (Hoagland Longo Moran Dunst & Doukas and Caryn L. Lilling, attorneys; Ms. Lilling and Ms. Solomon, of counsel; Ms. Lilling, on the briefs).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez, Waugh and Carroll. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-8031-08. Gerald H. Clark argued the cause for appellant/cross-respondent (Clark Law Firm, PC, attorneys; Mr. Clark, of counsel and on the briefs). Katherine Herr Solomon (Mauro Lilling Naparty, LLP) of the New York bar, admitted pro hac vice, argued the cause for respondent/cross-appellant (Hoagland Longo Moran Dunst & Doukas and Caryn L. Lilling, attorneys; Ms. Lilling and Ms. Solomon, of counsel; Ms. Lilling, on the briefs). PER CURIAM
By leave granted, plaintiff Ruben Coronel appeals the October 10, 2013 order granting defendants P&T Sons Construction Corp. and Perin Construction Corp. (Perin) a new trial on the limited issue of whether Perin was negligent in the hiring of defendants Norge Giron; LNC Construction Corp., trading as L.N.C. Construction Corp. (LNC); and Reynaldo Construction. Coronel was seriously injured when he fell on September 21, 2006, from a scaffold while installing siding at the home of defendants Sal and Kelly Brigati. At the time, he was employed by LNC. Coronel also appeals the judge's grant of a directed verdict to Perin on the claim that it had a duty of care under general negligence principles.
Perin cross-appeals, contending the trial judge should have granted its motion for a directed verdict as to the entire case because negligent hiring was not properly pled. Perin also cross-appeals the judge's decision to allow the parties a ninety-day discovery period limited to the negligent hiring claim. Lastly, Perin cross-appeals the trial judge's refusal to place the question of the Brigatis' percentage of responsibility under the Comparative Negligence Act, N.J.S.A. 2A:15-5.1 to -5.8, on the jury verdict sheet. The Brigatis settled with plaintiff after the trial began. For the reasons that follow, we affirm the judge's grant of a new trial on the issue of negligent hiring, allowance of an additional period of discovery, and refusal to submit the question of apportionment to the jury.
I
We briefly summarize the relevant facts developed during the trial. The Brigatis, acting as the general contractors for the construction of a new home, hired Perin to install a roof and siding. Darcy Perin (Darcy) is Perin's principal. The company had no employees, engaging subcontractors for all the jobs it brokered.
Darcy testified that his involvement on the Brigati job was limited to arranging for LNC to install the siding, after making on-site measurements and advising Brigati of the quantity of materials that were needed. The Brigatis directly paid LNC for the job, and LNC would have paid Perin a percentage for the referral.
Darcy had known Giron, LNC's owner, and his brother, Reynaldo, for a number of years. Darcy considered himself a friend of both men and subcontracted many jobs to them. It was his practice to have all his subcontractors "sign off" on two documents, essentially shifting the responsibility for work site safety from Perin to the subcontractor. Giron signed the safety forms for this job.
Giron did not participate in the trial. Darcy suggested he may have returned to his home country of Ecuador.
Darcy knew that his subcontractors were required to comply with the Occupational Safety and Health Act (OSHA), 29 U.S.C.A. §§ 651-678, but had no involvement with, or knowledge of, their safety practices or the manner in which they completed their work. Darcy, years prior, had actually given Giron OSHA-compliant tools, including safety equipment such as nets and guardrails for use on scaffolding.
Coronel, a "helper" hired for the Brigati job, was supervised by Giron, and never saw Darcy at the job site. To install the siding, Giron erected a twelve-to-fifteen-foot-tall pump jack scaffold, which was moved around the building as necessary. It is undisputed that the scaffolding complied neither "with OSHA [n]or industry standards." The scaffolding lacked any fall protection, and Coronel testified it was the same scaffolding as on other LNC jobs. Coronel asked Giron about the safety of the scaffolding but never complained to anyone else. After the accident, OSHA cited Giron for safety violations.
At trial, Darcy emphatically said he was never on the site after measuring the job. At his deposition, he said that he had been on the site and seen the scaffolding used on the job but did not remember when. That portion of the deposition testimony was read into the record.
At the close of the proofs, in deciding Perin's motion for a directed verdict, the judge stated:
What we have in this case is a single-family residence being constructed by a homeowner who is a full-time fireman, and building his own home. He's doing some of the work himself. He's getting family to do other work. And when he hits the roofing and siding he hires a contractor. There seems to be no dispute of fact that he hired Perin Construction Corporation.
. . . Perin subcontracted with Norge Giron and LNC Construction Corp.
. . . Coronel was an employee of LNC Construction Corp. . . .
. . . Perin got some sort of percentage, I guess a referral fee you could even call it, for turning the job over to LNC Construction Corp. LNC got the profit and LNC provided the worker's comp [] benefits. . . .
. . . .
. . . The [] only testimony of Perin's involvement was Perin measured the job site. The homeowner testified that the homeowner purchased the siding, but did so after being
told by Mr. Perin [] what it was he was to buy. . . .
The plaintiff produced evidence or read into the record some testimony that it was a question that said Perin controlled the site via subcontracting. Quite candidly, it just sort of states the obvious, you hired a subcontractor. So in that sense that determined who went to that job site. But that doesn't mean that Perin controlled the site itself or the safety [] of the site.
. . . .
. . . I give the plaintiff the benefit of all inferences [of] the facts, and then apply those to the question of duty. In the [c]ourt's view the duty doesn't exist. And as I said, as I've gone through this analysis I've assume[d] facts, given the plaintiff the benefit of [] all those facts.
. . . .
. . . The issue as I see it on the foreseeability of risk and the question of whether a contractor who has no involvement in the job can thus be liable if that risk materializes seems to me to -- because it would be foreseeable to all, to the worker, to [] LNC and to Perin is, is it some sort of -- the next inquiry is, is it some sort of hidden risk?
. . . .
. . . [O]ne contractor could never just brokerage a job out to another. As soon as they touch it they [] get an obligation to train, to inspect, to ensure the safety of equipment.
And so those factors I think don't balance out in the plaintiff's favor. . . .
. . . .
So when I balance all of those factors and I say, okay, what's fair here, it seems to me that unless I'm willing to say that no one can ever broker out a job to another contractor, take a percentage for brokering it out, and leaving it to that contractor as well as his employees to exercise care for their own safety I think that the fairness issue here weighs in favor of the defendant Perin on this issue of whether or not Perin had a duty to train, to provide equipment, to provide guardrails. So on that issue I'm going to direct a verdict on behalf of the defendant.
The judge then asked to hear from plaintiff's attorney with regard to the issue of negligent hiring. Plaintiff's counsel, apparently confused as to the import of the ruling, asked if the judge was "throwing the case out." The judge responded that she had just ruled on the issue of whether proofs had been presented pursuant to Alloway and its progeny, and that she wanted plaintiff to identify the evidence he thought he had presented in support of the claim of negligent hiring. Perin's counsel objected, stating that even negligent hiring required some knowledge of dangerous practices by the subcontractors, which it vigorously disputed plaintiff had proven. Ultimately, the court denied the motion for a directed verdict as to the theory of negligent hiring, and also ruled that no questions regarding the Brigatis' comparative negligence would be placed on the verdict sheet.
Alloway v. Bradlees, Inc., 157 N.J. 221 (1999).
--------
During summation, when Coronel's counsel began to argue to the jury that Perin was negligent in hiring LNC, Perin's attorney objected. The following colloquy occurred, ending in a stipulation which the judge relied upon in making her decision to grant a new trial:
The Court: What's the relevance, counsel?
[Coronel's counsel:] It's relevant because the safety [in]competent contractor knew about these regulations and chose not to follow them --
The Court: But the issue is what did Perin know.
[Perin's Counsel:] Right.
[Coronel's Counsel:] Well, Perin knew them for [fifteen] years.
The Court: But that's . . . your adversary's objection is the question that the jury is going to have to decide [which] is whether or not Perin knew or should have known that LNC was not competent. And so your argument that LNC intentionally broke safety regulations, your adversary's argument is that doesn't advance the issue that's in front of the jury.
. . . .
The Court: So I'm going to sustain that objection.
[Coronel's Counsel:] It goes to the issue that LNC is incompetent, safety incompetent.
[The Court:] If it goes to that issue which is something different than what you told me a few moments ago I'll overrule the objection.
[Coronel's Counsel:] Thank you, Your Honor.
Perin testified he also knew about the safety regulations. You'll recall that testimony. And the evidence suggests here that it -- it wasn't just wrong what happened in terms of hiring this safety incompetent contractor, it was worse than wrong. There was a decision made by this contractor, LNC, to simply not follow the rules. Whether it's to speed up the work --
[Perin's Counsel:] Objection, Judge.
The Court: What's the objection, counsel?
. . . .
The Court: He's talking about LNC, not -- not Perin.
[Perin's Counsel:] Yeah, but these . . . issues are not relevant to the issues that --
The Court: Do you agree that [LNC] on that job that the plaintiff was injured at was not safety competent?
[Perin's Counsel:] On this . . . job, but that doesn't --
The Court: On that job located on Smith Street in Wayne. Do you agree that LNC was not safety competent?
[Perin's Counsel:] Yes. But it doesn't go to the issue of hiring.
The Court: Counsel, . . . I just asked you yes or no. Are you willing to stipulate in front of this jury that -- on this job here in Wayne, New Jersey LNC did not conduct itself as a safety competent contractor?
[Perin's Counsel:] Yes.
The Court: Yes. Hence you have an agreement LNC did not conduct itself as a safety competent contractor on that day -- on that job, and so indeed the comments are relevant given that that is now agreed to.
The trial judge then addressed the jury:
The issue, ladies and gentlemen, is if Perin -- no one disagrees LNC did not comply with OSHA, or whatever it is they had to comply with. They didn't do that. They weren't safety competent. The issue is whether or not Perin is responsible for LNC not having done a safety competent job.
When the trial judge charged the jury, she stated:
the plaintiff must . . . prove; number one, that LNC was not a safety competent contractor, okay, that they were not competent in the areas of safety; number two, the plaintiff has to prove that Perin either knew or should have know[n] at the time they made the decision to give this job to LNC that LNC was not a safety competent contractor; number three, that it was reasonably foreseeable that LNC -- that it was reasonably foreseeable to the reasonably prudent person, okay, that it was reasonably foreseeable that LNC would fail to perform safely on this job in Wayne, New Jersey; and number four, that that negligence -- if you
found that negligence that that was a proximate cause of the fall at that location.
The verdict sheet posed the following questions, which we reproduce in full, including the jury's responses:
1. Has the Plaintiff Ruben Coronel proven that the Defendant Perin Construction Corporation was negligent in hiring LNC Construction?
YES v NO ___ 6-0
If your answer is "YES", go to Question #2.
If your answer is "NO", cease deliberations and return your verdict.
2. Was the negligence of Defendant Perin Construction Corporation a proximate cause of the fall incident of September 21, 2006?
YES v NO ___ 6-0
If your answer is "YES", go to Question #3.
If [y]our answer is "NO", cease deliberations and return your verdict.
3. Has Defendant Perin Construction Corporation proven that Plaintiff Ruben Coronel was negligent?
YES ___ NO v
If your answer is "YES", go to Question #4.
If your answer is "NO", cease deliberations and return your verdict.
After the jury rendered its verdict, Perin filed a motion for judgment notwithstanding the verdict based on the argument that plaintiff presented no evidence whatsoever that Perin knew or should have known that it hired a safety incompetent contractor. The judge denied the motion, deciding instead to grant a new trial, triggering this appeal. She agreed with Perin that the claim of negligent hiring was not pled in the complaint, which only alleged that defendants were negligent and violated the strictures of OSHA. Despite the fact that the judge agreed the complaint did not raise the issue, she was satisfied that Perin had sufficient notice about it from Coronel's pre-trial brief, opening statements, and summation, for a new trial on the cause of action.
In ruling on Perin's application for a new trial after the jury rendered its verdict, the judge stated as follows:
First, I do believe it is . . . my understanding of this case that there was a serious nomenclature issue; that is, the, quote, "safety competent," close quote, contractor. As I said, there was no evidence that he was incompetent. One counsel is arguing about safety competence and the other counsel is arguing about whether or not Perin had reason to know that LNC would not follow the rules that they were competent to follow. I'm satisfied that part of that dichotomy in what plain -- both counsel are arguing is born of the fact that the issue was not raised until the time of trial, and in that regard any doubt on that score was removed when plaintiff's
counsel began to pack up his things and leave the courtroom when the [c]ourt ruled on the issue of who had the responsibility, the safety responsibility, on the job site. There can be -- I just don't think there can be any inference from that other than plaintiff's counsel himself either did not truly believe that was still in the case or, again, going back to, you know, you get set up for a trial, you have a certain theory that you're proceeding on, and sometimes the rest gets lost in -- in the heat of battle. But I note that even now in the arguments and in response to this motion that the plaintiff is mixing this issue of what is the safety duty.
. . . .
Even now the plaintiff is mixing this question of safety, the duty to provide the safe work environment with this question of whether or not Perin had reason to know that LNC would not observe safety -- would not observe its duty to provide a safe workplace. And it's again[] in this context that the plaintiff's closing -- plaintiff's counsel's closing, which was focused on, primarily, whether the job was safe, and indeed that's what most of the testimony was about, whether the job site was safe, when all agreed it wasn't safe. The issue was not, is the job site safe, albeit the plaintiff had to establish that, the issue was did Perin have reason to know that LNC would not make it safe.
Now as I indicated, the moving defendant at the present time did not raise before trial that the plaintiff had not raised the issue, and if the defendant had raised that issue before trial, the plaintiff's counsel could have said, well, you know what Judge, I think it's in here, I think I have enough evidence, if this is about notice, give us all [sixty] days,
we'll thrash it out in discovery and . . . then go ahead. And so I'm not going to prejudice anybody. No one here is going to get ambushed. I'm satisfied it wasn't raised before trial. I'm satisfied defense counsel should have made that argument before trial. I'm satisfied both sides got an unfair advantage by not raising the issues that they should have in a timely fashion, and the only way that I can see clear to rectifying those issues is by granting a new trial on liability.
After her ruling, the trial judge asked Coronel's counsel if he wanted additional time for discovery to "refine this issue," and he assented. Defense counsel also agreed, since plaintiff's attorney had been granted additional time for discovery. Accordingly, the judge set a ninety-day discovery period. This appeal and cross-appeal followed.
II
On appeal, plaintiff raises the following points for our consideration:
I. THE ORDER GRANTING PERIN CORP. A NEW LIABILITY TRIAL SHOULD BE REVERSED AND THE MATTER REMANDED FOR A DAMAGES TRIAL.
A. There Was Sufficient Evidence to Support the Jury Verdict That Perin Corp. Hired a Safety Incompetent Contractor; in Fact the Issue Was Stipulated.
B. There Was No Ambush or Surprise in the Claim about Hiring an Incompetent Contractor; in Fact Defense Counsel Admitted as Much.
II. ALTERNATIVELY, IF THE NEW TRIAL ORDER IS AFFIRMED, THE DIRECTED VERDICT ON PERIN CORP.'S DUTY FOR SAFETY SHOULD BE REVERSED BECAUSE, AS ANOTHER JUDGE PREVIOUSLY FOUND, IT HAD A RESPONSIBILITY TO MANAGE SAFETY AND ENFORCE OSHA WITH RESPECT TO ITS PORTION OF THE WORK.
A. Perin Corp. Had a Responsibility to Enforce OSHA with Respect to its Portion of the Work.
1. State and Federal Law and Industry Standards Are Clear Perin Corp., is Required to Make Sure its Subcontractor Follows Safety Rules.
2. The Lower Court Also Erred in Adopting Perin Corp.'s "Manner and Means" Argument.
B. Perin Corp. is Further Liable under General Negligence Principles and a "Fairness Analysis."
Defendant's cross-appeal raises the following issues:
POINT I
PLAINTIFF FAILED TO ELICIT SUFFICIENT PROOF IN SUPPORT OF A CLAIM FOR HIRING AN INCOMPETENT CONTRACTOR. THE TRIAL COURT PROPERLY SET ASIDE THE JURY'S VERDICT, BUT SHOULD ALSO HAVE DISMISSED THE CASE.
The Applicable Law.
Assuming Plaintiff Properly Noticed the Claim, It Should Never Have Been Submitted to the Jury.
Even the Trial Court Recognized that The Record was Barren of Evidence to Support the Single Liability Finding.
The Absence of Evidence That LNC Was Incompetent Should Have Resulted in Dismissal.POINT II
The Record Is Barren of Evidence That Perin Knew or Should Have Known of LNC's Alleged Incompetence.
Plaintiff Resorts to Misrepresenting the Record Evidence In Lieu of Actual Evidence.
Ordering Additional Discovery and A New Trial Was Not the Appropriate Remedy.
If the Case is Not Dismissed, A New Trial is Appropriate.
Grounds for a New Trial.
In the Event of a New Trial, the Question of Brigati's Negligence Should Be Submitted to the Jury.
THE TRIAL COURT PROPERLY CONCLUDED THAT PERIN DID NOT RESERVE CONTROL OF THE MANNER AND MEANS OF THE CONTRACTED WORK.
The Applicable Law.
Denial of Summary Judgment is Irrelevant.
OSHA Does Not Create a Duty.
The Cases Relied upon by Plaintiff Fail to Demonstrate That the Trial Court Erred.
We review the trial judge's grant of Perin's motion for a new trial, Rule 4:49-1(a), with considerable deference. The reason for that deferential review is that only the trial judge "has gained a 'feel of the case' through the long days of the trial." Lanzet v. Greenberg, 126 N.J. 168, 175 (1991).
Jury verdicts should be set aside only with "great reluctance, and only in cases of clear injustice." Boryszewski v. Burke, 380 N.J. Super. 361, 391 (App. Div. 2005), certif. denied, 186 N.J. 242 (2006). "On a motion for a new trial, all evidence supporting the verdict must be accepted as true, and all reasonable inferences must be drawn in favor of upholding the verdict." Ibid. A new trial should be granted only where it clearly appears that "there was a miscarriage of justice under the law." R. 2:10-1; R. 4:49-1(a). On appeal, our standard as to whether a miscarriage occurred is "substantially similar to that used at the trial level . . . ." Jastram v. Kruse, 197 N.J. 216, 230 (2008) (quoting Feldman v. Lederle Labs., 97 N.J. 429, 463 (1984)).
Briefly, Coronel's position is that it is reasonable to infer that Perin was well aware of LNC's practice of failing to adhere to safe industry practices or OSHA standards because of its longstanding business relationship with LNC. Coronel also construes Darcy's deposition testimony to mean he had been on the Brigati job site while LNC was installing the siding, an interpretation emphatically disputed by Darcy at trial.
Coronel further contends that the stipulation agreed to during his summation was that LNC was "safety incompetent," not just on the Brigati job, but at all times. In somewhat circular fashion, Coronel also argues that the court's denial of Perin's motion for a directed verdict on the issue must mean the record contained enough proof to support the jury's verdict. Perin responds that the judge's error was in granting a new trial instead of a directed verdict, and that even if LNC was a safety incompetent contractor, Coronel presented no evidence that Perin knew or should have known.
A.
A general contractor is not liable for injuries to a subcontractor's employees "'[a]bsent control over the job location or direction of the manner in which the delegated tasks are carried out.'" Muhammad v. N.J. Transit, 176 N.J. 185, 198-99 (2003) (alteration in original) (quoting Wolczak v. Nat'l Elec. Prods. Corp., 66 N.J. Super. 64, 71 (App. Div. 1961)). It is not unreasonable to assume that an "'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.'" Tarabokia v. Structure Tone, 429 N.J. Super. 103, 113 (App. Div. 2012) (quoting Accardi v. Enviro-Pak Sys., 317 N.J. Super. 457, 463 (App. Div.), certif. denied, 158 N.J. 586 (1999)), certif. denied, 213 N.J. 534 (2013).
The exception to this general rule occurs when the contractor controls the "manner and means" of the work, knowingly engages a safety incompetent subcontractor, or the work is inherently dangerous. Ibid. (citations omitted). Even supervision by the contractor to ensure that the subcontractor has completed the job as called for by the parties' agreement does not suffice to expose the contractor to liability. Muhammad, supra, 176 N.J. at 199.
A contractor is liable for harm to third persons by failing to exercise care in hiring a subcontractor "(a) to do work which will involve a risk of physical harm unless it is skillfully and carefully done, or (b) to perform any duty which the employer owes to third persons." Puckrein v. ATI Transp., Inc., 186 N.J. 563, 575 (2006) (quoting Restatement (Second) of Torts § 411 (1965)).
To prove that a general contractor is liable for hiring an incompetent subcontractor, "a plaintiff must show that the [sub]contractor was, in fact, incompetent or unskilled to perform the job for which [it] was hired, that the harm that resulted arose out of that incompetence, and that the principal knew or should have known of the incompetence." Id. at 576 (citing Mavrikidis v. Petullo, 153 N.J. 117, 136 (1998)); see also Basil v. Wolf, 193 N.J. 38, 68 (2007). In order for a contractor to be liable for the harm caused by the subcontractor, the harm must have resulted from a quality of the subcontractor which made it incompetent. Id. at 576 (quoting Restatement (Second) of Torts § 411 cmt. b).
A safety competent contractor is one "'who possesses the knowledge, skill, experience, and available equipment which a reasonable man would realize that a contractor must have in order to do the work which he is employed to do without creating unreasonable risk of injury to others.'" Puckrein, supra, 186 N.J. at 575 (quoting Restatement (Second) of Torts § 411 cmt. a). The issue of whether the jury understood that it needed to find that LNC was a safety incompetent contractor before it could find Perin guilty of negligent hiring, as the trial judge noted, was muddied by the parties', and her own, use of the phrase "safety incompetent contractor."
Turning to the meaning of the stipulation entered into in front of the jury during Coronel's summation, our reading of the transcript is that Perin only intended to acknowledge that on the day in question, LNC's safety practices were inadequate. It is equally clear from the record that Coronel thought Perin had stipulated that LNC was a safety incompetent contractor as a general proposition. That the parties thereafter referred to LNC as "safety incompetent" was therefore misleading.
The subsequent usage of the phrase may well have prevented the jury from engaging in meaningful consideration of the question of whether Coronel had proven that Perin was negligent in hiring LNC, despite the judge's instruction that Coronel had to prove that LNC was safety incompetent. The first question on the verdict sheet was whether Coronel had proven Perin was guilty of negligent hiring. Prior to reaching that question, the jury was not asked to determine whether LNC was safety incompetent or whether Perin knew or should have known of any incompetence.
Although Coronel testified that LNC did not employ safety measures on its scaffolding, that fact, in and of itself, was not sufficient to establish that LNC lacked the "knowledge, skill, experience, and available equipment which a reasonable man would realize that a contractor must have in order to do the work . . . without creating unreasonable risk of injury to others." Mavrikidis, supra, 153 N.J. at 136 (internal citation omitted). Similarly, the fact that Perin's expert agreed that the scaffolding was unsafe alone does not support the notion that LNC was a safety incompetent contractor, as the expert did not have any information regarding earlier safety practices.
It is undisputed that on the day in question LNC was negligent — but the question the jury should have first addressed was whether LNC was ignorant of or unable to implement safe practices on the job site — i.e., was LNC safety incompetent. Even if LNC purposefully chose to forego the practices it knew complied with industry and OSHA standards, that choice was negligent, and did not establish safety incompetence per se. See Ibid. Having heard, immediately before deliberations began, that LNC was a safety incompetent contractor, it is unlikely that the jury would have rendered any verdict but the one it returned.
It is possible, as the judge observed, that the jury's verdict may have been the product of doubts regarding Darcy's credibility since Darcy and Giron had known each other for years. But that does not diminish the effect on the jury of repeatedly hearing the phrase "safety incompetent" to describe LNC. In this case, therefore, the new trial was properly granted because of the risk that a miscarriage of justice occurred as a result of the court and counsel mistakenly using the term of art in front of the jury.
In sum, to be safety incompetent, a subcontractor must lack the knowledge, skill, and equipment that a reasonable person would have to safely complete a job. Puckrein, supra, 186 N.J. at 576. The stipulation elicited from Perin was only as to that day and proved the obvious — when Coronel fell, the scaffold was unsafe. Accordingly, the trial judge's rationale setting aside the jury's verdict in favor of a new trial in part because of the "safety incompetent issue," was proper because "it clearly and convincingly appear[ed] that there was a miscarriage of justice under the law." R. 4:49-1(a).
B.
On appeal, Coronel renews the arguments previously made to the trial judge in his motion for a directed verdict or judgment notwithstanding the verdict. Specifically, Coronel contends that even if he did not provide adequate notice of his negligent hiring cause of action prior to the commencement of the trial, by the time the trial began, the claim was known. This is the additional basis expressed by the trial judge for granting Perin's new trial request.
The trial judge, in rendering her decision granting Perin a new trial, noted that nothing in Coronel's complaint could be interpreted as alleging a negligent hiring cause of action. The judge went on to dismiss Coronel's argument that this cause of action could be inferred from his expert report, as the court previously ruled, in Perin's directed verdict motion, that Perin "could not be liable as an entity that had a requirement of supervising safety on the job site."
We agree that the complaint did not provide notice of any negligent hiring cause of action. When reviewing pleadings to determine whether a claim had been asserted, a court is "charged with the responsibility of searching the complaint in depth and with liberality to ascertain whether the fundament of a cause of action may be gleaned even from an obscure statement of claim." Velop, Inc. v. Kaplan, 301 N.J. Super. 32, 56 (App. Div. 1997) (internal citation omitted), appeal dismissed, 153 N.J. 45 (1998). Reading Coronel's complaint with that obligation in mind, one can only conclude that it did not allege a cause of action for negligent hiring.
By the time the pretrial brief had been filed and opening statements made, however, Perin was on notice of the claim. The trial judge's calculus regarding the necessity for a new trial included Perin's lack of adequate, timely notice of the negligent hiring claim.
In deciding these matters, a trial court must accept as true the evidence supporting the position of the non-moving party, together with all legitimate inferences. Verdicchio v. Ricca, 179 N.J. 1, 30 (2004) (quoting Estate of Roach v. TRW, Inc., 164 N.J. 598, 612 (2000)). But even where the evidence supports a directed verdict, "[t]he court has discretionary power to grant a new trial rather than to enter judgment and should do so if it appears that the party who obtained the verdict may be able to supply the deficiency in evidence, or may win on another issue not fully tried, or for some other reason justice so requires." Wenner v. McEldowney & Co., 102 N.J. Super. 13, 22 (App Div.), certif. denied, 52 N.J. 493 (1968). By ordering the new trial in this case, the judge allowed both parties a fair opportunity to present their positions to a jury.
C.
The trial judge did not abuse her discretion by allowing additional discovery. Perin raises this point, despite having requested an extra sixty days in addition to the ninety days ordered by the trial judge. This argument is likely barred by the doctrine of invited error, which prevents "a disappointed litigant from arguing on appeal that an adverse decision below was the product of error, when that party urged the lower court to adopt the proposition now alleged to be error." Brett v. Great Am. Recreation, Inc., 144 N.J. 479, 503 (1996). Assuming that this request is not barred by the doctrine of invited error because of the position in which Perin's counsel found himself since he prevailed in his request for a new trial but did not anticipate that additional discovery would be ordered, we will employ the plain error standard of review, as no objection was made to the entry of the order. See R. 2:10-2.
A trial judge's decisions regarding discovery are reviewed for abuse of discretion. Leitner v. Toms River Reg'l Sch., 392 N.J. Super. 80, 87 (2007). Pursuant to Rule 4:24-1(c), discovery periods are generally not extended once a trial date has been fixed, except when "exceptional circumstances are shown."
In this case, it would be inequitable to apply the rule literally. A new trial had been ordered because a late claim was raised, having minimal evidentiary anchors, and the jury was likely confused about key terms. The trial judge ordered discovery relating to a new trial, thus we do not construe the rule as applicable. This exceptional circumstance warranted the judge's exercise of discretion. We see no error.
D.
We next address Coronel's contention that the trial court erred in granting Perin a directed verdict on the issue of negligence. Coronel argues that Perin possessed a nondelegable duty to ensure safety at the job site, and that because LNC engaged in unsafe practices, Perin is liable. Perin's position is that it acted as a broker, was paid a percentage as a fee, and exercised no other control over the manner and means LNC worked.
Review of a trial court's decision on a motion for a directed verdict made pursuant to Rule 4:40-1 is de novo. Boyle v. Ford Motor Co., 399 N.J. Super. 18, 40 (App. Div.), certif. denied, 196 N.J. 597 (2008). Like the trial court, we "must accept as true all the evidence which supports the position of the non-moving party, according him or her the benefit of all legitimate inferences." RSB Lab. Servs., Inc. v. BSI, Corp., 368 N.J. Super. 540, 555 (App. Div. 2004). If reasonable minds could differ on the issue on which the motion was made, it must be denied. Potente v. Cnty. of Hudson, 187 N.J. 103, 111 (2006).
First, as we have said, the existence of an OSHA violation does not per se establish negligence as a matter of law. Alloway, supra, 157 N.J. at 236. Alloway, although affirming that a contractor could be found to owe a duty to a subcontractor's employees under general negligence principles, also found that the analysis requires evaluation of the traditional elements, such as "the foreseeability of the risk of injury;" the identification, weighing, and balancing of the relationship between the parties; the nature of the risk; the opportunity and ability to exercise care; and public interest in the proposed solution. Id. at 230. The imposition of a duty of reasonable care must be both fact specific and principled, satisfying an abiding sense of basic fairness. Ibid.
This record does not support the claim that Perin controlled the manner and means that LNC performed its work at the job site. Although Darcy testified that he had given Giron safety equipment in years prior, that did not impose upon Perin control over the manner and means by which Giron completed the work. Darcy testified at trial that he did not return to the site after making the initial measurements until after being notified of Coronel's injury. His seemingly contradictory deposition statement is rendered doubtful by the fact that he then said he did not remember when he saw the scaffold. Thus the judge's decision to grant a directed verdict because Perin did not exercise control over the manner and means of the work was not error.
Nor did the judge err in concluding that Perin should not be held responsible under general negligence principles. Perin did not know, or have reason to know, that LNC would not use fall protection. As the judge said, it would simply be unfair, as a matter of public policy, to impose a duty on Perin on this record. The judge observed that to do so would mean "essentially [] one contractor could never just brokerage a job out to another. As soon as they touch it they -- they get an obligation to train, to inspect, to ensure the safety of equipment." The judge added:
So when I balance all of those factors and I say, okay, what's fair here, it seems to me that unless I'm willing to say that no one can ever broker out a job to another contractor, take a percentage for brokering it out, and leaving it to that contractor as well as his employees to exercise care for their own safety I think that the fairness issue here weighs in favor of the defendant Perin on this issue of whether or not Perin had a duty to train, to provide equipment, to provide guardrails. So on that issue I'm going to direct a verdict on behalf of the defendant.
This question resembles that addressed in Tarabokia, where we found a general contractor had no duty of care for the safety of a subcontractor's employee, injured by the use of a power-activated anchoring tool over a prolonged period without anti-vibration gloves. Tarabokia, supra, 429 N.J. Super. at 121. In that case, we declined to extend a duty in part because the business arrangement between the contractor and the subcontractor was based on a series of work orders. Id. at 117. The contractor in Tarabokia did not contribute to the risk of injury and placed the responsibility for work site safety on its subcontractors. Id. at 118-19. Since no special relationship existed between the contractor and subcontractor, and the contractor could not foresee the harm, we did not impose a duty of care. Id. at 121.
The relationship between LNC and Perin is similar to that between the parties in Tarabokia. Even drawing the benefit of all legitimate inferences to Coronel, Perin's relationship was just that of a broker. After arranging for the completion of the job, Perin was not involved. Perin had no "on-the-job oversight" nor reason to have exercised such oversight and lacked any direct or indirect authority over Coronel. Perin had no actual knowledge, or reason to know, of LNC's practices on this job. See id. at 114. Additionally, Perin required LNC to sign two safety agreements, one of which provided that LNC had "sole[] responsib[ility] for safety issues connected to the siding job." Accordingly, the trial court did not err in its decision that Perin had no duty under general negligence principles.
E.
Finally, Perin contends that the trial judge erred by not submitting the question of the Brigatis' negligence to the jury. On that score, when declining to do so she said:
I'm not putting Brigati on this verdict sheet. I -- I must be candid and tell you I didn't even know why Mr. Brigati was in this lawsuit after listening to the testimony. He's a guy who buys a piece of land that's got a small house on it, he's going to build
another house on it. It takes him three years. He hires somebody to pour the foundation and then he and his buddies, and sometimes his cousins, do work on the job. He writes checks as people give him bills. That was it. . . . He lived in the little house on the piece of property off on the side while he built his . . . dream house to live in. He didn't do anything. He didn't control any means or methods.
And talk about an overriding sense of fairness, it would be completely unfair for the man who's building the house, he's writing the checks to people who are licensed and saying, yeah, take care of that, let me know when it's over. He's not even arguing with them about when they do it, how they do it. He's not setting deadlines. He's not adding -- there's no evidence he's adding pressure to get it done. He did nothing but write a check and hire somebody as far as I could tell from the testimony.
He doesn't belong on this verdict sheet. And -- and -- and as much as I may have been able to see both sides of the argument about Perin I could barely perceive what the argument would be as to the homeowner. So Brigati is not going on the verdict sheet.
The Comparative Negligence Act, N.J.S.A. 2A:15-5.1 to -5.8, among other statutes, provides the "framework for the allocation of fault when multiple parties are alleged to have contributed to the plaintiff's harm." Town of Kearny v. Brandt, 214 N.J. 76, 96 (2013). Under the Comparative Negligence Act, a "'non-settling defendant has the right to have a settling defendant's liability apportioned by the jury." Cockerline v. Menendez, 411 N.J. Super. 596, 617-18 (App. Div.) (quoting Mort v. Besser Co., 287 N.J. Super. 423, 431 (App. Div. 1996), certif. denied, 147 N.J. 577 (1997)), certif. denied, 201 N.J. 499 (2010). The factfinder "must make an allocation of causative fault between settling and non-settling defendants, so that the court can calculate the amount of credit due the non-settler." Young v. Latta, 123 N.J. 584, 592 (1991). "[T]he quantum of evidence required to qualify for an apportionment charge is low. The law favors apportionment even where the apportionment proofs are imprecise, allowing only for rough apportionment by the trier of fact." Boryszewski, supra, 380 N.J. Super. at 384.
"The fact of settlement does not prove the settlor's liability." Mort, supra, 287 N.J. Super. at 431. A "non-settling defendant is not entitled to a credit if the plaintiff settles with a party found not to be a tortfeasor." Young, supra, 123 N.J. at 591. If the non-settling defendant fails to offer facts by which the jury could find the settling defendant liable, the factfinder may not be asked to apportion the defendants' liability. Mort, supra, 287 N.J. Super. at 431-32.
Perin relies upon Costa v. Gaccione, 408 N.J. Super. 362 (App. Div. 2009), in support of his argument. In Costa, the plaintiff subcontractor's employee was injured when he fell from a makeshift scaffold at the defendant's home. The plaintiff argued that the defendant was a de facto general contractor who owed him a duty of care. We reversed the trial judge's grant of summary judgment, as we found that there was enough evidence in the record for the question of whether the defendant acted as a de facto general contractor to go to the jury. In that case, although the defendant did not exercise direct control over the job site, he "oversaw operations" daily. Id. at 275. He purchased the materials that the builders requested, and reviewed the building plans with the workers that he hired. Ibid. He was familiar with the construction business. Ibid. Given those circumstances, when viewing the evidence in the light most favorable to that plaintiff, there were issues of material fact not only as to his role as a de facto contractor, but also the foreseeability of the injuries suffered by the plaintiff. Ibid. That was not the case here where the Brigatis, as the trial judge found, did not control any aspect of the work.
Perin also relies upon Daidone v. Buterick Bulkheading, 191 N.J. 557 (2007), where the homeowner testified that he acted as his own general contractor. The homeowner acknowledged obtaining the construction permits, paying the subcontractors, and owning a construction company. That familiarity with the industry distinguishes the case from this one.
The Brigatis lacked any control over the job site and were not even aware that LNC was completing the job — Sal Brigati actually thought Perin was doing so. They had neither any knowledge nor any resulting duty to ensure that LNC complied with OSHA and industry safety standards. Accordingly, we agree with the judge's refusal to place them on the verdict sheet and to ask the jury to apportion liability.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION