Opinion
DOCKET NO. A-0222-10T4
01-18-2012
LUIS PADILLA and CINDY PADILLA, as wife per quod, Plaintiffs-Appellants, v. 201 HARRISON, LLC, Defendant-Respondent, and NAT SALVEMINI, RITCO SECURITY SYSTEMS INC., WILLIAM J. GUARINI INC., MOLFETTA CONSTRUCTION COMPANY and MICHAEL NIRCHIO jointly, severally and individually, MOLFETTA CORPORATION and MICHAEL NIRCHIO, jointly, severally and individually, and APPLEGATE ASSOCIATES, INC., Defendants.
Law Office of Evelyn Padin, attorneys for appellant (Evelyn Padin, on the brief). Ronan, Tuzzio & Giannone, attorneys for respondent (Gregory W. Boyle, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman, Fisher and Nugent.
On appeal from the Superior Court of New
Jersey, Law Division, Hudson County, Docket
No. L-347-08.
Law Office of Evelyn Padin, attorneys for
appellant (Evelyn Padin, on the brief).
Ronan, Tuzzio & Giannone, attorneys for
respondent (Gregory W. Boyle, of counsel and
on the brief).
PER CURIAM
Plaintiff Luis Padilla was an employee of defendant Molfetta Construction Company, a subcontractor hired by defendant Molfetta Corporation, which was a general contractor hired by 201 Harrison, LLC (Harrison), to construct a condominium building (the Neopolitan), on property Harrison owned in Hoboken. On January 23, 2006, Padilla fell from scaffolding at the construction site and sustained devastating personal injuries. Plaintiff and his wife commenced this action against Harrison, the general contractor and others. All claims were either settled or disposed of by way of summary judgment, and plaintiffs appealed, asserting that the trial court erred in granting summary judgment in favor of Harrison.
Harrison is the sole respondent in this appeal.
The facts at the heart of plaintiffs' appeal concern a transaction that changed the membership of Harrison, the limited liability company that owned the property where the injury occurred. Nat Salvemini, the managing member of Harrison, testified at his deposition that Harrison was formed "to acquire land where the Neopolitan now sits and to retain a general contractor[,] [which would] literally handle the entire construction from start to finish and literally hand [Harrison] the key at the end of the project." After selecting Molfetta Corporation as Harrison's general contractor, but before actually signing the construction contract, Salvemini thought it might serve to "better bring the project in on time" and "within budget" if the general contractor had "some monetary skin in the game." As a result, Harrison agreed to transfer 27% of its membership to Molfetta Harrison, LLC, pursuant to the terms of an operating agreement executed on April 25, 2005. Following this transaction, Salvemini remained Harrison's managing member with the power to "make all decisions relating to the management and conduct of [Harrison's] business."
The documents memorializing this transaction reflect that Molfetta Harrison's sole member was Molfetta Development Group, LLC (Molfetta Development), and that Molfetta Development's sole members were Michael Nirchio and Nader Khodadoust.
On June 13, 2005, Harrison and the general contractor entered into a contract for the construction of the Neopolitan. Among other things, the general contractor agreed: to be responsible for the acts and omissions of its own employees and all subcontractors and others performing the work required by the contract; to assume the obligation to "supervise and direct" the work, using its "best skill and attention"; and to be
solely responsible for and have control over construction means, methods, techniques,In addition, the contract contained a section devoted to the "protection of persons and property," by which the general contractor assumed responsibility "for initiating, maintaining and supervising all safety precautions and programs" in connection with the performance of the contract. The general contractor also agreed it would "take reasonable precautions for safety of, and shall provide reasonable protection to prevent damage, injury or loss to . . . [e]mployees on the [w]ork and other persons who may be affected thereby." And the contractor promised it would "comply with all applicable laws, ordinances, rules, regulations and lawful orders of public authorities bearing on safety of persons or property or their protection from damage, injury or loss" and would "erect and maintain . . . reasonable safeguards for safety and protection." These provisions clearly and unambiguously placed the sole responsibility for operating a safe construction site on the general contractor, as Michael Nirchio, who was affiliated with the general contractor, conceded in his deposition testimony.
sequences and procedures and for coordinating all portions of the [w]ork under the [c]ontract, unless the [c]ontract [d]ocu-ments give specific instructions concerning these matters. If the [c]ontract [d]ocuments give specific instructions concerning construction means, methods, techniques, sequences or procedures, the [general contractor] shall evaluate the jobsite safety thereof and, except as stated below [dealing with the general contractor's options if it were to determine that these specific instructions are unsafe], shall be fully and solely responsible for the jobsite safety of such means, methods, techniques, sequences or procedures.
The contract additionally contained the general contractor's stipulation that it would require each subcontractor "to the extent of the [w]ork to be performed by the [s]ubcontractor, . . . to assume toward the [general contractor] all the obligations and responsibilities, including the responsibility for safety of the [s]ubcontractor's [w]ork."
In their appeal brief, plaintiffs refer to Nirchio as "the principle [sic] owner" of the general contractor. Plaintiffs have not alluded to the record on appeal in this regard and our review of the record has uncovered no evidence that would describe Nirchio's precise relationship to either the general contractor or the subcontractor that employed plaintiff Luis Padilla.
Nirchio answered "yes" when asked whether the general contractor "was responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the performance of the contract," and answered "no" when asked whether Salvemini "ever participate[d] or ever ask[ed] [him] questions regarding the safety of the subcontractors."
These and other contract provisions, as well as other unrebutted deposition testimony, demonstrate that Harrison owed no duty to plaintiffs in these circumstances. To be sure, as a general proposition, a landowner possesses "a non-delegable duty to use reasonable care to protect invitees against known or reasonably discoverable dangers." Kane v. Hartz Mountain Indus., 278 N.J. Super. 129, 140 (App. Div. 1994), aff'd, 143 N.J. 141 (1996). But it is also well-settled that a landowner is under no duty to protect a contractor's employee "from the very hazard created by doing the contract work." Accardi v. Enviro-Pak Systems Co., 317 N.J. Super. 457, 463 (App. Div.) (quoting Dawson v. Bunker Hill Plaza Assoc., 289 N.J. Super. 309, 318 (App. Div.), certif. denied, 146 N.J. 569 (1996)), certif. denied, 158 N.J. 685 (1999). This exception, which insulates a landowner when an independent contractor is hired to perform work "according to his own methods without being subject to the control" of the landowner, Bahrle v. Exxon Corp., 145 N.J. 144, 157 (1996) (quoting Wilson v. Kelleher Motor Freight Lines, Inc., 12 N.J. 261, 264 (1953)), is based on the understanding that a landowner is entitled 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," Accardi, supra, 317 N.J. Super. at 463.
Salvemini testified he lived in the area and would occasionally drive by the construction site but only visited the site "once per month, once every other month" during construction.
Plaintiffs do not challenge these concepts but instead argue that the trial judge erred in granting summary judgment because the exception does not insulate a landowner when it hires an unskilled or incompetent contractor. Plaintiffs also contend Nirchio was a principal of both the general contractor and Harrison and, as a result of this connection between general contractor and owner, Harrison cannot claim the benefit of the exception. We reject these arguments.
First, the trial judge correctly concluded that the evidential materials presented, when viewed in the light most favorable to plaintiffs, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995) -- a standard that also governs our disposition of this appeal, Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007) -- did not support plaintiffs' contention that Harrison hired an incompetent contractor. As the Court held in Puckrein v. ATI Transport, Inc., 186 N.J. 563, 576 (2006), this theory may support a finding of landowner liability if it can be proved "that the contractor was, in fact, incompetent or unskilled to perform the job for which he/she was hired, that the harm that resulted arose out of that incompetence, and that the principal knew or should have known of the incompetence." The Puckrein Court relied upon Restatement (Second) of Torts, § 411, comment a (1965), in defining a competent contractor as "a contractor 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.
The record reveals that, prior to hiring the general contractor, Harrison took into consideration other jobs performed by the general contractor, interviewed other companies, and obtained information about the general contractor through verbal inquiries. There is nothing in the record to suggest Harrison knew or should have known of the past OSHAviolations upon which plaintiffs rely in asserting Harrison hired an incompetent contractor. Indeed, even if the record were to suggest that Harrison should have known of these past OSHA violations and further suggested they related to the precise circumstances that gave rise to plaintiff's injuries, the fact that is fatal to plaintiffs' claim on this theory is that the OSHA violations were committed by Molfetta Construction, and not the general contractor. That is, even if the OSHA violations referred to are sufficient to suggest incompetence, they suggest only the incompetence of a subcontractor -- plaintiff's employer -- not the general contractor itself.
The Occupational Safety and Health Administration.
--------
Second, plaintiffs argue that Harrison is not entitled to the exception described in Kane and other cases because of the transaction by which Molfetta Harrison became a 27% member of Harrison. Largely disregarding the existing corporate veils, plaintiffs argue that Michael Nirchio is the "owner" of both Molfetta Construction and the general contractor, and that "Nat Salvemini and Michael Nirchio were the only shareholders" of Harrison. Plaintiffs contend that the jury could have rejected the defense that Harrison permissibly turned over its obligation to provide a safe place for plaintiff Luis Padillo and others because of the overlapping ownership of both the general contractor and Harrison.
This theory must be rejected because it is predicated on an assumption that Michael Nirchio is the alter ego of both the general contractor and Molfetta Harrison. In other words, while plaintiffs may have blithely referred to Nirchio as the general contractor and as a member of Harrison, in fact Molfetta Corporation was the general contractor, not Nirchio, and Molfetta Harrison, and not Nirchio, was a member of Harrison. Absent a legal or equitable basis for piercing the corporate veils of those two entities -- and plaintiffs have provided nothing to support such a contention -- the individual shareholders of either of those entities are permitted the protection afforded as a result of their incorporation and these corporate entities are entitled to rely upon their separate identities. See, e.g., Lyon v. Barrett, 89 N.J. 294, 300 (1982) (recognizing that "a corporation is an entity separate from its stockholders" and "[i]n the absence of fraud or injustice, courts generally will not pierce the corporate veil to impose liability on the corporate principals").
Plaintiffs' claim in this regard must fail even if we were to assume that the general contractor -- and not Molfetta Harrison -- was a member of Harrison. That transaction did not give the general contractor, or Nirchio, or any other Molfetta entity, the ability to control Harrison. To the contrary, that transaction provided Molfetta Harrison with a minority interest in Harrison; Salvemini remained the managing member of Harrison and, thus, retained control over Harrison's conduct. Additionally, it has not been shown that Salvemini or Harrison had an interest or position in the general contractor or any other Molfetta entity. Accordingly, even if we were to disregard the corporate veils and assume the general contractor was, in reality, a member of Harrison, it obtained only a 27% interest in Harrison and did not acquire the power or authority to control Harrison's business decisions. And Salvemini, either in his own name or in Harrison's name, obtained no interest in the general contractor.
For these reasons, we find no merit in any of plaintiffs' arguments that the trial court erred in granting summary judgment in favor of Harrison.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION