Appellate Division Limits GC’s Duty of Care To Injured Employee of Sub-contractor
Even in the presence of an OSHA violation
Tarabokia v. Structure Tone, N.J. Super. Ct., Appellate Div. (Nov. 16, 2012)
By William H. Tobolsky
The Parties: The defendant was the general contractor for an office building construction site. A standard AIA Owner-GC Agreement was used. Hatzel & Buehler (H&B), one of the 20 largest electrical contractors, was hired as the electrical sub-contractor.
The plaintiff was an employee of H&B, hired out of the Union hall. He was directed, supervised and controlled solely by his employer, the sub-contractor.
The Incident: Plaintiff allegedly suffered permanent repetitive motion injuries1 as a result of improper use of a power-actuated anchoring tool. This equipment was supplied to him by the subcontractor. Though OSHA2 regulations required protective antivibration gloves, none were supplied to the plaintiff either by his employer or by the defendant General Contractor. Plaintiff was trained and certified in the use of this equipment by a representative of the manufacturer of the equipment. This training was arranged by H&B. Employee received a card from the manufacturer signifying his completion of the training. In addition, weekly safety meetings were conducted by H&B throughout the duration of the work.
Safety Procedures in Place: The defendant BC was obliged by its contract with the project owner to designate an accident-prevention representative to provide for “all safety precautions and programs in connection with the performance of the contract.” The GC prepared a site specific safety management plan, available for review by all subcontractors. The GC’s safety officer had the authority to stop all work due to a safety concern until it was addressed and corrected. Extensive safety precautions and procedures were instituted and observed throughout the course of the project. However, the subs maintained complete direct control of their own employees. The sub-contractor H&B provided plaintiff with a company safety handbook, and provided him with a safety orientation course. There was no evidence, so says the Court, to permit an inference that any
blatant misuse of this or other equipment by employees of the subs was observable to the GC during the course of construction.
The Negligence Claim: Plaintiff employee sued defendant GC in negligence for damages arising from his bodily injury alleged to have been incurred through improper use of the equipment. In Tabokia v. Structure Tone (Nov. 16, 2012)3 the N.J. Appellate Division denied plaintiff’s claim, holding that as a matter of law the GC had no duty of care toward the plaintiff under these circumstances.
- OSHA Violation Although the GC is charged with overall non-delegable responsibility for OSHA compliance on the job site,4 the violation of an OSHA safety regulation does not in and of itself, without more evidence, justify a finding of negligence of tort liability. Alloway v Bradlees, Inc.5 Rather, general negligence principles are applied. The existence of an OSHA violation is to be considered with other fairness factors to determine whether a duty of care should be imposed on the GC. Costa v. Gacione, 408 N.J. Super. 362, 372-73 (App. Div. 2009).
- General Rule of Immunity At common law a GC was generally immune from the negligence of its subcontractors6. The GC may normally rely upon the expertise of the sub7.
- Exceptions to General Rule:
a. when the GC controls “the manner and means” of how the sub does its work8;
b. when the subcontractor is incompetent9; and,
c. when the work to be done is sufficiently inherently dangerous as to constitute a nuisance per se10.
None of these factors was present. However, there is another, more
- Overriding Principle Even if there is no “traditional” common law liability, the GC is not yet off the hook. “The more modern approach” employs an additional screening mechanism to GC immunity. The court must now identify, weigh and balance other relevant factors11, including (a) whether the general contractor knew or should have known (constructive knowledge) of the specific risk involved, i.e., whether the harm (both its nature and severity) was foreseeable12, (b) the GC’s actual knowledge of dangerous conditions13,
(c) the GC’s “opportunity and capacity to take corrective action” and (d) public policy considerations (“an abiding sense of basic fairness” in light of all the circumstances, including the relationship of the parties, the nature of the risk, the opportunity to exercise case, and the public interest)14. The actual knowledge of the risk of harm may in itself be dispositive in finding a duty of care.
The general contractor escaped liability in this case because it fulfilled its contractual safety procedures obligations, it did not have a close business relationship with the sub-contractor, it specifically allocated the various safety duties and responsibilities in work orders, it had no control of the selection of this equipment and the specific procedures used by the sub-contractor, it had not created or attempted to fix the problem, and the danger was not immediately apparent. No “active involvement in the sub-contractor’s business” occurred. The facts did not permit an inference that the GC had actual knowledge of the risk of harm15.
Criticism: The decision is extremely fact dense. It sounds more like a deliberation finding that there was no evidence that a duty of care was breached rather than a legal decision that no duty of care existed. The more fancy way to say this is that the Appellate Division “conflates” the two issues of duty and breach. Does a legal duty exist? Or was the legal duty breached? This may be inevitable given the broad brush that Alloway provides to the Court to make a general “public policy” decision which overrides the traditional common law rule of immunity and its three recognizable and specific exceptions. The factors to be considered in the “more modern” approach are in some instances vague and ambiguous.
It is difficult to conclude that a jury could not find that the GC was aware of safety violations when the plaintiff’s failure to wear protective gloves was clearly observable by anyone in the area, including the GC’s safety inspectors. Moreover, a jury could find from the mere existence of the OSHA violation that the GC breached a duty of care. A more predictable and principled method to resolve these issues is either to return to the general rule of immunity subject to the three relatively uncomplicated exceptions, or to find that a duty exists on the GC in all cases and let the jury decide.
1 Multiple level polyneural compression syndrome.
2 20 CFR § 1926.302(e).
3 A-3822-11T2, 2012 N.J. Super. LEXIS 180 (approved for publication).
4 29 C.F.R. § 1926.16(a).
5 157 N.J. 221, 236 (1999); Costa v. Gaccione, 408 N.J. Super. 362, 372-73 (App. Div. 2009).
6 Muhammad v. N.J. Transit, 176 N.J. 185, 198-99 (2003).
7 Accardi v. Enviro-Pak Sys. Co., 317 N.J. Super. 457, 463 (App. Div.), certif. denied, 158 N.J. 685 (1999).
8 Muhammad, supra, 176 N.J. at 198.
9 Majestic Realty Assocs., Inc. v. Toti Contracting Co., 30 N.J. 425, 431 (1959).
10 Majestic Realty Assocs., Inc. v. Toti Contracting Co., 30 N.J. 425, 431 (1959).
11 Alloway, supra, 157 N.J. at 230.
12 Carey v Lovett, 132 N.J. 55, 57 (1993).
13 Alloway, supra, 157 N.J. 231-32.
14 Hopkins v Fox & Lazo Realtors, 132 N.J. 426, 439 (1993); Alloway, supra, 157 N.J. at 230.
15 Compare, Carvalho v. Toll Brothers and Developers, 143 N.J. 565, 571, 72 (1996)(imposing duty of care on the GC).