Opinion
16979/06.
Decided on July 2, 2009.
Plaintiff was represented by Jeffrey B. Manca, Esq.
Defendants were represented by Stephen M. Knudsen, Esq. of Durkin Durkin, LLP.
On December 31, 2004, plaintiff Antonio Ramirez, an employee of nonparty American Rolling Door, allegedly sustained personal injuries when he fell from a ladder while installing a garage door at premises owned by Waste Management of New Jersey, Inc. ("WMNJ") located in Elizabeth, New Jersey. In its motion, WMNJ contends that it is entitled to summary judgment dismissal of Plaintiff's Complaint because it hired American Rolling Door as an independent contractor, and WMNJ did not control the manner and method of Plaintiff's work.
In support of its motion, WMNJ proffers the deposition testimony and affidavit of Peter Paloscio, the owner of American Rolling Door, who avers that Plaintiff was an employee of American Rolling Door since 1993; that Plaintiff's regular duties included aiding in the installation of rolling doors; that Plaintiff was experienced at his job, and did not require instruction; that WMNJ hired American Rolling Door to repair and reinstall a rolling door; that WMNJ had never exercised supervision over the means and method of American Rolling Door's work on any prior occasion or on the date of the accident; that American Rolling Door supplied all tools and equipment used in its work; and that he supervised American Rolling Door's employees, including Plaintiff, on the date of the accident.
Mr. Paloscio further avers that on the date of the accident, he, "Ed", and Plaintiff worked at the site to reinstall the door; that Plaintiff climbed a ladder to secure the door with strips of rope; that he and "Ed" held the ladder while Plaintiff climbed the ladder; that Plaintiff took one piece of rope with him and secured it to the door, but that he did not bring another piece of rope that was also required to secure the door; that he made three efforts to throw the other piece of rope up to Plaintiff, but Plaintiff was unable to catch it; that after the third attempt, he told Plaintiff to get down from the ladder; that he let go of the ladder in order to pick up a piece of rope while Plaintiff was still on the ladder; that after he picked up the piece of rope, he observed
Plaintiff clinging to the ladder as the ladder fell 14-15 feet; and that Plaintiff released the ladder just before he hit the ground.
WMNJ also submits the affidavit of James Bray, WMNJ's Site Manager on the date of the accident, who avers that in December 2004, he "hired American Rolling Door, Inc. to repair one of the rolling doors that cover the entry bays to the tipping floor"; that American Rolling Door "worked at the site as an independent contractor"; that American Rolling Door had repaired and installed doors for WMNJ on prior occasions; that American Rolling Door "controlled the means and method of the work"; and that "[n]either myself in my capacity as Site Manager nor anyone else on behalf of WMNJ exercied supervision over the work that American [Rolling Door] performed." In this regard, Mr. Bray refers to a contract attached to WMNJ's papers, demonstrating that American Rolling Door prepared a contract on its own letterhead that did not contain any provision allowing WMNJ to supervise or control the manner or means of American Rolling Door's work.
WMNJ also submits the deposition testimony of Plaintiff, to the effect that WMNJ did not supervise or control the manner and means of his work on the date of the accident; and that the ladder fell while he attempted to catch a piece of cord thrown by Mr. Paloscio.
By order, entered on August 8, 2008, the court (Hinds-Radix, J.) determined that New Jersey substantive law applies in this case, and, as such, New York Labor Law provisions do not apply. Indeed, there is a stark contrast in how New Jersey and New York resolve cases involving workers who fall from ladders or scaffolds. In New York, Labor Law § 240(1) imposes upon property owners, except owners of one and two-family dwellings who contract for but do not direct or control the work, a non-delegable duty to furnish laborers with devices which shall be so constructed, placed and operated as to give the laborer proper protection from gravity-related risks. A fall from a ladder as described by Mr. Paloscio would establish prima facie the liability of the property owner. ( See Mingo v Lebedowicz , 57 AD3d 491 , 493 [2d Dept 2008]; Ricciardi v Bernard Janowitz Construction Corp ., 49 AD3d 624 [2d Dept 2008]; Salon v Millinery Syndicate, Inc ., 47 AD3d 914 , 915 [2d Dept 2008].) As will be illustrated, New Jersey does not impose a duty upon property owners even remotely similar to that imposed by Labor Law § 240(1), and the result is appreciably different.
In New Jersey, "an owner of property who engages an independent contractor to work upon his premises extends to the employees of the latter, while at the job location executing the work, an implied assurance that ordinary care has been exercised to render the location reasonably safe for the invitees' purposes." ( Wolczak v National Electric Products Corp., 66 NJ Super 64, 73, 168 A2d 412, 417 [App Div 1961].) "[T]he active interference of the owner in the manner of doing the work may implicate him in negligence for injuries to the employees of the subcontractor related to the manner in which the work is performed or to the furnishing of defective equipment." ( Id.)
"The duty to provide a reasonably safe place in which to work is relative to the nature of
the invited endeavor and does not entail the elimination of potential operational hazards which are obvious and visible to the invitee upon ordinary observation." ( Wolczak v National Electric Products Corp., 66 NJ Super at 75, 168 A2d at 417.) "This is especially so when the invitee is an experienced laborer hired either to correct the very danger present or to perform his tasks amidst the visible hazards." ( Id.) The landowner may assume that the worker, or his superiors, are possessed of sufficient skill to recognize the degree of danger involved and to adjust the methods of work accordingly. ( Id.; see also Accardi v Enviro-Pak Systems Company, Inc., 317 NJ Super 457, 463, 722 A2d 578, 580 [App Div 1999].) "[T]he duty to provide a reasonably safe working place for employees of an independent contractor does not relate to known hazards which are part of or incidental to the very work the contractor was hired to perform." ( Id.). "An independent contractor is one 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 but only as to the result of the work." ( Accardi, 317 NJ Super at 463, 722 A2d at 580.)
"This exception to the landowner's general duty of care is not absolute where the landowner retains a duty to exercise reasonable care for work involving independent contractors: first, where the landowner retains control over the manner and means of the doing of the work which is the subject of the contract; second, where the landowner hires an incompetent contractor; or third, where the activity contracted for constitutes a nuisance per se." ( Accardi, 317 NJ Super at 463, 722 A2d at 580-81[citations and internal quotation marks omitted].)
Here, WMNJ sufficiently demonstrates prima facie that the ladder fell soon after Plaintiff was attempting to catch a cord being thrown towards him by his boss, Mr. Paloscio, and when Mr. Paloscio was not holding the ladder; that WMNJ exercised no supervision or control over the work of American Rolling Door; and that American Rolling Door provided its own equipment, including the subject ladder, for the job. WMNJ establishes through Mr. Bray's affidavit and Mr. Paloscio's affidavit and deposition testimony that American Rolling Door was an independent contractor. As such, WMNJ establishes that "as landowner, [it] plainly did not owe a duty to [Plaintiff], as [an] employee of an independent contractor, to prevent injury from a risk which was incident to the very task [he] was hired to perform, and therefore is not liable to [Plaintiff] for the injuries [he] sustained in this accident." ( See Dawson v Bunker Hill Plaza Associates, 289 NJ Super 309, 319, 673 A2d 847, 852 [App Div 1996]; see also Wolczak v National Electric Products Corp., 66 NJ Super at 76, 168 A2d at 418.) WMNJ demonstrates that it "was entitled to rely upon and assume that [American Rolling Door] had sufficient skills to safely [reinstall the door] and take the steps necessary to protect [its] own employees from the risks incident to the work [it] performed." ( See Dawson v Bunker Hill Plaza Associates, 289 NJ Super at 319, 673 A2d at 852.) Accordingly, WMNJ demonstrates prima facie entitlement to summary judgment dismissal of Plaintiff's Complaint.
In opposition, Plaintiff submits, among other things, his own affidavit in which he avers that on December 24, 2004 (a week prior to the accident), he and a co-worker went to the WMNJ site to remove the door; that at that time, he spoke to an unnamed "supervisor", who discussed
with him "how the job should be done"; that the unnamed supervisor blocked the work area off with cones, and directed traffic around them; that the "supervisor" told him that he and his coworker should use "their lift in order to remove the door", and that they should be careful and not damage a sprinkler pipe on top of the door; and that the "supervisor" watched them perform the work. Plaintiff avers that on the date of the accident, his boss Peter Paloscio "spoke with the supervisor who told him what to do"; that he does "not know why we were not given the lift to reinstall the door"; and that the "supervisor" had his workers block off the area with cones, and direct traffic around the work site.
Contrary to Plaintiff's contentions, Plaintiff's averments do not raise a triable issue as to whether WMNJ controlled the manner and means of Plaintiff's work. That WMNJ cordoned the area off shows only that it was attempting to render the location reasonably safe for the purpose of allowing American Rolling Door to do its job, but does establish that it was directing the manner and means of Plaintiff's work. That the unnamed "supervisor" warned Plaintiff not to damage a sprinkler pipe on top of the door is related to WMNJ's concern about American Rolling Door's damaging its property while performing work on the door, as opposed to instructing it regarding the method and means of removing, repairing, and reinstalling the door, and, in any event, would not be sufficient to demonstrate that WMNJ retained a duty to exercise supervision or control of the manner and means of American Rolling Door's work on the date of the accident. ( See Dawson v Bunker Hill Plaza Associates, 289 NJ Super at 320, 673 A2d at 852; see also Majestic Realty Associates, Inc. v Toti Contracting Co., Inc., 30 NJ 425, 431, 153 A2d 321, 324 ["The supervisory interest relates to the result to be accomplished, not to the means of accomplishing it"].)
Plaintiff's conclusory averments that a week prior to the accident, he was told by the unnamed supervisor "how the work should be done", and that on the date of the accident, the unnamed supervisor told his boss Peter Paloscio "what to do" does not establish that WMNJ controlled the manner and means of the work, especially in light of Plaintiff's deposition testimony that he was never instructed or supervised by anyone from WMNJ how to perform the work on the date of the accident, and that he never observed Mr. Paloscio speak with anyone from WMNJ. ( See Dawson v Bunker Hill Plaza Associates, 289 NJ Super at 320, 673 A2d at 852 ["While partners of Bunker Hill [the property owner] were occasionally on the job site, those partners did not and could not determine if the trusses were being installed properly and did not give any instructions with respect to the erection of the trusses."]; see also Gadonniex v Lombardi, 277 AD2d 281, 282 [2d Dept 2000] ["Where a party submits an affidavit in opposition to a motion for summary judgment which is directly contrary to his or her deposition testimony, the affidavit will be rejected as a feigned attempt to avoid the consequences of the earlier admission."]; see also Hernandez-Vega v Zwanger-Pesiri Radiology Group , 39 AD3d 710 , 711 [2d Dept 2007].)
Plaintiff avers in his affidavit that the "ladder fell because it was not properly secured and because the floor was slippery." Nonetheless, Plaintiff never mentioned the slippery condition of the floor in his prior deposition testimony, nor does he allege a slippery condition in his Verified
Bill of Particulars. Moreover, Plaintiff fails to adequately explain how the slippery condition caused him to fall, in light of his testimony and averment that he fell after he reached to catch a cord thrown by Peter Paloscio, and because nobody was holding his ladder as he started to descend it. To the extent that Plaintiff contends that a lift supplied by WMNJ should have been used on the date of the accident, as it had purportedly been used to remove the door two weeks prior, such claim has no relevance here, where there is no dispute that on the date of the accident, American Rolling Door was an independent contractor whose principal Peter Paloscio was supervising Plaintiff's work, and who provided all of the equipment for the project, including the ladder from which Plaintiff fell. ( See e.g. Wolczak v National Electric Products Corp., 66 NJ Super at 74, 168 A2d at 417 ["the failure to use scaffolding was primarily the result of a deliberate on-the-spot decision by plaintiff's superior"].)
Plaintiff also proffers the expert affidavit of Daniel S. Burdett, who neither inspected the accident site nor the ladder, and whose averments were not otherwise based upon personal knowledge. The expert affidavit also relies in part on the affidavit of Jesus Guerrero, which was not submitted by Plaintiff in his opposition papers. Since the expert's affidavit lacks sufficient foundational support, it is without probative value. In any event, to the extent that the expert avers that OSHA regulations were violated, defendant WMNJ, as property owner, may not be held liable for failure to comply with OSHA regulations. ( See Rigatti v Reddy, 318 NJ Super 537, 543-44, 723 A2d 1283, 1286-87 [App Div 1999]; Dawson v Bunker Hill Plaza Associates, 289 NJ Super at 321, 673 A2d at 853.)
Plaintiff also fails to demonstrate that WMNJ may be held liable because it hired an incompetent contractor. ( See Mavrikidis v Petullo, 153 NJ 117, 136, 707 A2d 977, 986.) Plaintiff makes no showing that American Rolling Door "was incompetent or unskilled to perform the job for which [it] was hired, and that [WMNJ] knew or had reason to know of [American Rolling Door's] incompetence." ( Mavrikidis, 153 NJ at 137, 707 A2d at 986.)
Plaintiff similarly fails to make any showing that the work itself was "inherently dangerous because its very nature involve[d] a peculiar and high risk of harm to members of the public or adjoining proprietors of land unless special precautions [were] taken" ( see Majestic Realty Associates, Inc., 30 NJ at 327, 153 A2d at 436.)
The case of Alloway v Bradlees, Inc. ( 157 NJ 221, 723 A2d 960), cited by Plaintiff, is inapposite, as that decision only considered the basic issue of "whether a general or prime contractor has a duty to assure the safety of an employee of a subcontractor" ( 157 NJ at 225, 723 A2d at 962), as opposed to the duty owed by a property owner, as is the case here. The duty of the general or prime contractor is governed by statute in New Jersey ( see Construction Safety Act, NJSA 34:5-166 et seq.), which abrogated the common law principles that would otherwise be applicable, and that remain applicable to landowners ( see Meder v Resorts Int'l Hotel, Inc., 240 NJ Super 470, 473-75, 573 A2d 922, 924-25 [App Div 1989].)
Similarly, Carvalho v Toll Brothers and Developers ( 143 NJ 565, 569, 675 A2d 209, 211
) is inapposite, as that decision considered whether an engineer "has a legal duty to exercise reasonable care for the safety of workers on a construction site when the engineer has contractual responsibility for the progress of the work but not for safety conditions yet is aware of working conditions on the construction site that create a risk of serious injury to workers."
Accordingly, the branch of defendant WMNJ's motion for summary judgment dismissal of Plaintiff's Complaint as against it is granted. Since the Complaint has already been dismissed as against defendant Waste Management Inc., the Complaint is dismissed in its entirety, rendering the other branch of defendant WMNJ's motion, seeking to amend the caption, moot.
It should be noted that in determining the motion, the Court did not consider any of the affidavits contained in WMNJ's Reply ( see Juseinoski v Board of Education of City of New York , 15 AD3d 353 , 355 [2d Dept 2005]; Azzopardi v American Blower Corp., 192 AD2d 453, 454 [1st Dept 1993]), nor the affidavit of James Bray, dated June 22, 2009, since it is dated after the motion was fully submitted and, as such, cannot be the "correct" Exhibit "B" of WMNJ's Reply papers as stated by defense counsel.