Gerald Clark Wins $525,000 Jury Verdict for Severely Injured Worker

Gualberto v. Kara Homes and JM Framing Corporation

New Jersey Construction Accident Injury Case Report

$525,000 Verdict, Including Punitive Damages, in Construction Site OSHA Violation Fractured Ankle Case

On October 18, 2004, Jose Gualberto was working for a framing sub-contractor on a Kara Homes, Inc. construction project in Monroe Township, N.J. Gualberto set up a ten foot strait ladder at 45 degree angle to install joist hanger brackets to the underside of the second floor. The ladder slipped out and fell, causing Gualberto to suffer ankle fracture injuries requiring internal fixation surgery. Plaintiff sued Kara Homes, Inc, the general contractor on the project, and JM Framing Corporation, the sub-contractor that hired his employer. Gualberto was represented by Gerald Clark, Esq. of the Keefe Bartels & Clark law firm in Monmouth County and Newark, N.J.

Gualberto claimed Kara Homes and JM Framing were negligent in failing to manage safety on the worksite and ignoring their duties under the federal workplace safety regulations known as OSHA. Gualberto claimed the workers were not properly trained or supervised and that they were not provided the right equipment to safely do their work. At one point Gualberto complained the ladder was not safe for the work, but his boss told him to do his job with the equipment available to him.

Defendants claimed Gualberto himself was negligent in choosing to use the wrong ladder and setting the ladder up at a 45 degree angle. Gualberto explained that he had no meaningful choice in the matter and that he set up the ladder in the safest possible position. He explained that if he refused to do his assigned tasks or waited for an a-frame ladder to become available, he would risk being fired. He explained the workers were under intense pressure by Kara Homes and JM Framing to complete their work quickly.

The case (Jose Gualberto v. Kara Homes et al. MID-L-6145-05) was tried over the course of seven days before the Honorable Phillip Lewis Paley, J.S.C., Middlesex County. The compensatory damages phase took place from March 10^th to March 17^th and the punitive damages trial took place on March 31^st. The eight person jury awarded $500,000 for pain and suffering compensation and $15,000 for lost wages. No medical bill claims were submitted to the jury.

The jury also found defendant JM Framing Corporation's failure to follow the OSHA regulations was willful, wanton or with reckless disregard for plaintiff's safety. JM Framing offered evidence that it was financially insolvent and was fined $10,000. Since the Kara Homes Corporation was in bankruptcy, plaintiff is limited to their insurance coverage and was not permitted to pursue any punitive damages claim against them.

James Kane of the Law Offices of Carroll McNulty Kull LLC was counsel for the Kara Homes Inc. defendants and David Maselli, of the Law Offices of Wright & O'Donnell, P.C., was counsel for the JM Framing, Corporation defendant. The case is Jose Gualberto v. Kara Homes et al. MID-L-6145-05.

Plaintiff's liability expert was Wayne Nolte, P.E., Ph.D, Hazlet, N.J. Plaintiff's damages expert was orthopedic surgeon, Michael Reiber, MD, Springfield, N.J.

More Detailed New Jersey Personal Injury Case Facts

I. The Construction Project

Kara Homes hired defendant JM Framing as one of the framing/carpentry subcontractors on the project. JM Framing in turn sub-subcontracted out its work to plaintiff's employer, FM Ituana/Sebestaio Ferreira. JM Framing had an ongoing subcontracting relationship with Kara Homes. As such, on July 20, 2004, JM Framing entered into a "Legal Master Subcontractor Agreement" with Kara Homes. This Legal Master Subcontractor Agreement was intended to apply to all work JM Framing performed for Kara Homes moving forward. Among other things, JM Framing agreed in this Legal Master Subcontractor Agreement to the following in connection with its subcontracting work with Kara Homes:

• to supply the necessary tools and equipment to properly and safely complete the work;

• to understand and comply with OSHA, the N.J. Construction Safety Act and all other applicable laws;

• that prior to commencement of the work, Jose Gualberto and all the employees under JM Framing will be trained "in the recognition and avoidance of unsafe conditions and the regulations applicable to his work environment to control or eliminate any hazards or other exposure to illness or injury" as per OSHA section 1926.21 (b)(2);

• that prior to commencement of the work, Jose Gualberto and all the employees under JM Framing will be trained in how to recognize and avoid the hazards associated with the work as per OSHA section 1926.21;

• that Jose Gualberto and all the employees under JM Framing will continue to be trained "in the recognition and avoidance of unsafe conditions and the regulations applicable to his work environment to control or eliminate any hazards or other exposure to illness or injury" as per OSHA section 1926.21 (b)(2);

• that all ladders will be erected and maintained by JM Framing so as to prevent injury to the workers;

• that JM Framing will have at all times while work is in progress a responsible person to oversee and supervise the work;

• that JM Framing will not sub-contract out its work without the express, written consent of Kara Homes;

• that if it does sub-contract out work, that JM Framing will remain fully responsible for the work as set forth in the contract;

• JM Framing shall not employ on the project anyone who is unfit or not skilled to perform the work.

The evidence showed JM Framing did little if anything to meet its contractual and independent legal duties to enforce safety of its sub-contractors and comply with OSHA. For example, JM Framing's discovery responses and the deposition testimony of its representative, John Boyle, showed among other things:

• it did not look into the safety histories of its sub-contractors;

• it did not make sure the necessary tools and equipment were on hand to safely complete the work;

• it did not require or make sure that prior to commencement of the work, Jose Gualberto and all the employees under JM Framing were trained "in the recognition and avoidance of unsafe conditions and the regulations applicable to his work environment to control or eliminate any hazards or other exposure to illness or injury" as per OSHA section 1926.21 (b)(2);

• it did not require or make sure that prior to commencement of the work, Jose Gualberto and all the employees under JM Framing were trained in how to recognize and avoid the hazards associated with the work as per OSHA section 1926.21;

• it did not require or make sure that all ladders were erected and maintained by JM Framing so as to prevent injury to the workers;

• it did not have at all times while work is in progress a responsible person to oversee and supervise safety;

• it sub-contracted out its work without the express, written consent of Kara Homes

Jose Gualberto is a 48 year old husband and father of two children. He immigrated to the United States from Brazil out of economic necessity to support his family. Gualberto arrived in the United States about one year before the accident. Prior to coming to the United States Gualberto had no training, knowledge or experience in carpentry or construction. Gualberto has almost no formal education, having only attend school for a total of four years in Brazil. As of the time of the accident, Jose Gualberto had received no construction safety or OSHA training whatsoever and no training as it relates to the safe use of ladders, scaffolding or any other construction equipment. In 2004 Gualberto would typically work six days a week, many hours a day. He would be paid about $13/hr cash and never received overtime pay.

As of the time of the accident Gualberto had been working for FM Ituana/Sebestaio Ferreira for about two weeks. As indicated above, at no time did he ever receive any ladder or construction safety training whatsoever. He would simply arrive at the job site and do what he was told. Gualberto was expected to simply do the work he was directed to. He was not expected to ask questions or complain. Aside from about a ½ to eat lunch, he was also not expected to take any breaks. He and his co-workers were under intense pressure to get the work done quickly as they were getting paid by the hour and his employer was getting paid by the job. Gualberto understood that if he did not do what was expected of him, or if he raised any safety concerns or complained about safety, he would be quickly replaced with another worker.

Safety and the prevention of accidents was something that was simply never discussed at FM Ituana; Gualberto and his co-workers, who were all non-union laborers, were expected to simply do their jobs and not complain or ask questions. If there were not sufficient tools or materials available, Gualberto was expected to improvise and get the job done by whatever means necessary. If an accident or injury occurred on the job, Gualberto and his co-workers were expected to keep it quiet. They were not to report it to anyone. Unless absolutely necessary, they also were expected to not seek out medical attention. If they did go to the hospital, they were told they should state that the accident happened other than while on the job. This was all because the employer did not want to have to report it to the workers compensation insurance company and risk increased premiums.

In fact, after the accident Gualberto was dropped off at the hospital and the person from work who took him there quickly left. He was never again contacted by Sebastio Ferreira or anyone from FM Ituana and his work with them was terminated because he got in the accident. He did try contacting Sebastio Ferreira but when he knew it was him calling, he would not answer the phone. He once called him from a different phone and he answered. He told him he needed money for food and to pay rent. Ferreira told him he would not help in any way. Gualberto could not work and he lost his apartment. He was then forced to live in a burnt out Mosque in Elizabeth for 6 months where he was forced to work repairing the building with a severely broken leg or be thrown out on the street.

Although Gualberto suffered severe leg fractures, his employer failed to report it to anyone, including the workers compensation insurance carrier. He also refused to provide the insurance information to Gualberto so that he could obtain the care and temporary income payments he needed to survive.

Thus, although N.J. law requires the injured worker receive automatic medical and temporary income benefits, to this day Gualberto has not received a penny in workers compensation benefits and the only medical treatment he has received has been from local hospital emergency rooms.

II. The Construction Workplace Accident

The accident happened on October 18, 2004. Gualberto arrived at the job site with his co-workers and began working promptly at 7a.m. He had worked at the same Kara Homes project the day prior. From 7 am until about 10 am Gualberto and his co-workers were performing various framing work on the house. The day before the accident Gualberto and his co-workers worked an entire day at another Kara Homes house. As they were expected, those workers would use ladders, carrying things in both hands up and down and using them as work platforms. In fact, Gualberto saw another worker using a strait ladder like just like he was at the time of my accident, working on the framing around windows.

After working there for about 3 hours, at ten a.m. Gualberto was directed to again install ceiling joist brackets on the first floor to the underside of the second floor. OSHA requires 3 point contact (two hands and a foot, two feet and a hand) at all times while on a ladder. As such, OSHA prohibits workers carrying things in hand while climbing a ladder or using a ladder as a work platform. 29 CFR §1926.1053 (b) (21) and (b) (22) Nevertheless, the normal procedure for JM Framing subcontractors to install ceiling joist brackets was to carry the brackets in one hand and the nail gun in the other, climb a ladder and install them while balancing on the ladder.

At the time Gualberto was directed to do this work, no A-frame ladders were available. As such, Gualberto was expected to use the only other ladder that was available to get the job done, a 12 foot extension ladder, and he did just that the best way he could. Since the plywood floor of the second floor was in place, the best configuration Gualberto could make was to lean the ladder against the wall at a 45 degree angle with the feet some 8 feet away from the wall.

As he was expected, Gualberto climbed the ladder holding his nail gun and brackets. As he went to install a second bracket, the bottom of the ladder slid out, and he went down with the ladder. His foot got caught in the ladder rungs and as it all hit the ground, his leg snapped causing severe injuries. (Exhibit A, Deposition of Jose Gualberto at 25-32, 38-40)

III. "The [Kara Homes OSHA] Violations are Too Numerous to Mention"

OSHA requires that Kara Homes and JM Framing saw to it that before he started working on this job, Gualberto was trained in and knew how to safely use a ladder. Gualberto however received no safety training whatsoever. In fact, Kara and JM Framing allowed on its jobs an employer that not only failed to comply with OSHA, but where workers actually faced replacement if they spoke up about any safety issues. Such OSHA violations were rampant on Kara Homes' job sites.

From 2002 through 2005, an OSHA compliance company called Applegate Associates performed a comprehensive review of the construction site safety practices of the Kara Homes construction operations. These inspections revealed abysmal worksite safety conditions throughout the Kara Homes operations, including an inspection of the Sterling Acres project in June, 2004. To wit, a memo was sent to all Kara Homes subcontractors by its regional project manager, Bill Marmo in January, 2005:

Please be advised that we have been notified by Applegate Associates that we are not in compliance with OSHA regulations on most of our jobs. The violations are too numerous to mention.

Plaintiff was injured when he was expected to utilize a ladder in an unsafe manner. Having never received any workplace safety training, Plaintiff was unaware of the risks associated with that ladder set up. And even if he were aware, he was employed by a company that was allowed on this project even though it maintained a culture of exploitation where no worker dared complain and those who were injured were terminated and blocked from making any workers compensation claim.

The Applegate Associates inspection reports which resulted in the OSHA "violations are too numerous to mention" memo documented countless ladder safety violations of the types that resulted in the injuries to Gualberto. For example:

• Sterling Woods - March 23, 2004 - An employee was observed standing on the top part of a three (3) foot ladder against its intended and safe use.

• Sterling Acres - June 30, 2004 - A sub-contractor employee was using a step ladder to access the second floor, which was only accessible by using the top step of the ladder against its intended and safe use.

• Aspen Woods - December 16, 2002 - Ladders in use were not secured or properly extended to prevent movement, shifting, or tipping.

• Tallymawr - April 15, 2004 - "Two job made ladders without cleats under rungs were found on-site. An A-frame ladder was found with faulty braces."

• Island Breeze - August 13, 2004 - Employees were standing on the top step of an extension ladder which is against its intended and safe use.

• Lenesy Estates - May 12, 2004 - Eight (8) Ladders were in use, not tied off to prevent movement, shifting, or tipping.

• Saxon Estates - September 18, 2003 - "Electricians were observed standing on top of an A-frame ladder on the second floor balcony, which was missing guardrail protection, making the fall hazard twice as bad."

• Crine West Estates - March 22, 2005 - Approximately six (6) defective (improperly built) job-made ladders were found throughout the construction site.

• Island Woods at Stafford - April 25, 2003 - "Step ladders are positioned against wood supports and workers are standing on the top step of those ladders" which is against its intended and safe use.

• Horizons at Woods Landing - July 22, 2005 - Improperly job-made ladders were found on numerous lots on the construction site.

• Cottage Gate - May 6, 2005 - "Ladders not visually inspected prior to use. They are not secured from movement and are improperly extended."

Admitting that the Sterling Acres project, as well as its companion project, Bergen Mills Estates, were not adhering to Kara Homes' responsibility to comply with OSHA, Kara Home later issued another notice memo to JM Framing and the rest of it sub-contractors as follows:

As of 1 July 2005 the above referenced projects will begin holding monthly safety meetings to re-establish our position on adhering to all State and Federal regulations in accordance with individual scopes of works and OSHA standards. Our intent is to provide you the information you need to conduct business for Kara Homes. Its is your responsibility as Sub-Contractor's to enforce these standards in your workers.

Still more workplace safety violations were documented by another risk management company called Kipcon Incorporated through 2006. These reports further demonstrate Kara Homes' chronic inability to get its workplace safety act together. The abysmal safety record of Kara Homes shows it placed profits over the well-being of workers. This is further shown in internal Kara Homes documents and other evidence which demonstrates sub-contractors were under tremendous pressure to finish their work quickly. For example, in a December 7, 2005 meeting minutes memo it is documented that Kara himself (Zudhi Karagjozi) complains that subcontractors are not producing "fast work" and that "work needs to be done fast ... so that we can get our homes delivered and closed." And if they do not work fast, "then move old sub-contractor out and new one in." In fact, Kara Homes maintained such a callous and dispensable attitude toward labor and the well being of workers they had this poster hanging in their on site management trailer:

IV. Expert Analysis of OSHA Violations and Accident

Plaintiff has retained Wayne Nolte, PE, Ph.D. to give an expert analysis of the circumstances surrounding this accident and the applicable standard of care in the field of workplace safety. Dr. Nolte reviewed extensive documentation and other materials related to this matter. Based on his extensive training, knowledge and experience in the field of engineering, he concluded, among other things, that Kara Homes and/or JM Framing failed to:

• look into the safety histories and practices of its sub-contractors;

• make sure the necessary tools and equipment were on hand to safely complete the work;

• make sure that prior to commencement of the work, Jose Gualberto and all the employees under JM Framing were trained "in the recognition and avoidance of unsafe conditions and the regulations applicable to his work environment to control or eliminate any hazards or other exposure to illness or injury" as per OSHA section 1926.21 (b)(2);

• require that prior to commencement of the work, Jose Gualberto and all the employees under JM Framing were trained in how to recognize and avoid the hazards associated with the work as per OSHA section 1926.21;

• require that all ladders were erected and maintained by JM Framing so as to prevent injury to the workers;

• have at all times while work is in progress a responsible, competent person to oversee and supervise safety.

Dr. Nolte also discusses in detail the abysmal safety record history of Kara Homes and the breach of the relevant standards of care in the field of construction site safety management and how those failures ultimately lead to the severe injuries plaintiff sustained in this matter.

LEGAL DISCUSSION

I. IT IS FOR A JURY TO DETERMINE WHETHER DEFENDANTS BREACHED THEIR DUTIES TO PROPERLY MANAGE SAFETY AND ENFORCE OSHA IN THIS WORK ACCIDENT CASE

A. History of Occupational Injuries in the United States

In the United States, about a million workers have been killed on-the-job since the 1920's.¹Our country's prior industrial history is even more egregious. The United States Bureau of Labor Statistics estimated annual workplace fatalities at 30,039 in the early 1920's.² 75,000 railroad workers died in the quarter century before World War I alone.³ The construction industry was just as dangerous, if not more so. The International Association of Bridge and Structural Steel Workers (Iron Workers), for example, lost a full one percent of its membership to workplace accidents in fiscal year 1911-12.⁴ A leading skyscraper construction firm admitted at the end of the 1920's that one worker died for every 33 hours of employed time during the previous decade.⁵ The United States led the world in casualty rates. Coal worker fatality rates were triple those in the United Kingdom, to cite one example.⁶

Shamefully high fatality and injury rates continued beyond the early twentieth century. Into the 1990's, the Iron Workers continued to report losing about 100 members a year to workplace accidents.⁷ Responding to National Safety Council statistics suggesting that 14,000 Americans are killed and 2.5 million permanently injured in the workplace every year.⁸, the United States Congress passed the Occupational Safety and Health Act of 1970 "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources." At the time of OSHA's passage, the country was losing more men and women to workplace accidents than to the war in Vietnam.⁹ Today, according to OSHA's own numbers, 6,000 American workers per year die from workplace accidents, 6 million American workers per year suffer injuries due to such accidents, and 50,000 American workers per year die from illnesses related to occupational hazards.

Death and disability due to unsafe or unhealthy workplaces remain America's hidden epidemic. In 1994, there were 6.8 million job-related injuries and illnesses in the private sector alone, an average of more than 18,000 injuries and/or illnesses each and every day of the year. U.S. Department of Labor, Bureau of Labor Statistics, Annual Survey of Occupational Injuries and Illnesses, 1994. The cost of these injuries and illnesses has been estimated at $120 billion for 1994 alone. National Safety Council, Accident Facts, (1995 Edition). Researchers at Mt. Sinai Medical School have estimated that 50,000 to 70,000 workers die each year as a result of major occupationally acquired diseases like cancer, lung disease and coronary heart disease. Landrigan PJ, Baker DB, "The recognition and control of occupational disease," Journal of the American Medical Association 1991;266:676-80. In 1998, the number of confirmed deaths due to occupational injuries in the U.S. was 6,026, approximately one-tenth the estimated number of deaths due to occupational illnesses. U.S. Department of Labor, Bureau of Labor Statistics, "National Census of Fatal Occupational Injuries," 1998, U.S. Department of Labor, August 4, 1999.

OSHA was implemented with these systematic inadequacies, as well as our country's bloody industrial history, in mind. OSHA was enacted to provide prevention; however, as discussed earlier, a high incidence of occupational injury and illness persist. When construction site leaders ignore OSHA, the imposition of liability through tort law is essential to discourage irresponsible conduct, compensate the injured and create incentives to minimize risks of harm. Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 448 (1993); People Express Airlines, Inc. v. Consolidated Rail Corporation, 100 N.J. 246, 266 (1985); Weinberg v. Dinger, 106 N.J. 469, 494 (1987); see also Prosser and Keeton on Torts § 4 (5th Ed.1984) (noting that "prophylactic" factor of preventing future harm is a primary consideration in tort law). Tort law provides the bite to work in conjunction with OSHA's bark. It provides real economic incentive for firms to invest in safety for their workers, rather than turn a profit on the potential for injury.

In this case both defendants failed to meet their duties and responsibilities to effectively manage safety on this job site and enforce OSHA. These failures were a cause of the unsafe environment plaintiff found himself in and a proximate cause of his injuries. Defendants' motions for summary judgment should be denied.

B. New Jersey and Federal Law Recognize That for Meaningful Workplace Safety Practices to Occur on a Job Site, There Must Be Top Down Responsibility in the Construction Site Hierarchy for Managing Safety and Enforcing OSHA

Under well-settled construction law in New Jersey, the general contractor on a work site has a non-delegable duty to maintain a safe workplace that includes "ensur[ing] 'prospective and continuing compliance' with the legislatively imposed non-delegable obligation to all employees on the job site, without regard to contractual or employer obligations." Alloway v. Bradlees Inc., 157 N.J. 221, 237-38 (1999), citing, Kane v. Hartz Mountain, 278 N.J.Super. 129, 142-43 (App. Div. 1994) State public policy and OSHA impose a duty on the general contractor to ensure the protection of all of the workers on a construction project, irrespective of the identity and status of their various and several employers, by requiring, either by agreement or by operation of law, the designation of a single repository of the responsibility for the safety of them all. Alloway, 157 N.J. at 238, citing Bortz v. Rammel, 151 N.J.Super. 312, 321 (App. Div. 1977), cert. den. 75 N.J. 539. As a matter of public policy and federal law, the general contractor is the single repository of responsibility for the safety of all employees on the job. As such, the general contractor bears responsibility for all OSHA violations on the job site. Meder v. Resorts International, 240 N.J.Super. 470, 473-77 (App. Div. 1989), cert. den. 121 N.J. 608; Kane, 278 N.J.Super. at 142-43; Dawson v. Bunker Hill Plaza Assocs., 289 N.J.Super. 309, 320-21 (App.Div.1996).

Indeed, the OSHA Regulations address the Rules of Construction and explain that the general contractor/prime contractor/construction manager is ultimately responsible for compliance with all of the OSHA Regulations.

... In no case shall the prime contractor be relieved of overall responsibility for compliance with the requirements of this part for all work to be performed under the contract." 29 CFR1926.16(a).

... The prime contractor assumes all obligations prescribed as employer obligations under the standards contained in this part, whether or not he contracts any part of the work." 29CFR1926.16(b)

This principle was discussed in great detail by the Supreme Court in Alloway v. Bradlees, 157 N.J. 221, 236-37 (1999). The Supreme Court in Alloway cited with favor the discussion of this principle in Bortz v. Rammel, 151 N.J.Super. 312 (App.Div. 1977) as follows:

[The Bortz court] determined that the Construction Safety Act and its implementing regulations, primarily N.J.A.C. 12:180-3.15.1, "substantially qualified" the common-law rule by imposing a non-delegable duty on a general contractor to "assure compliance with the requirements of this Chapter from his employees as well as all subcontractors," and that those legislative mandates gave rise to a duty on the part of a general contractor "to take the necessary steps to insure the safety of [the subcontractor's] employees." Id. at 319-20.

In Meder, supra, the court observed that OSHA regulation 29 C.F.R. § 1926.16 imposed the same non-delegable duty for workplace safety on a general contractor as had the Construction Safety Act. 240 N.J.Super. at 476.

Alloway, 157 N.J. at 236-237. The Alloway Court recounted New Jersey law on the issue:

The Appellate Division in Kane, supra, considered the effect of OSHA regulations on the existence and scope of a duty of care, and stated that general and subcontractors have a joint, non-delegable duty to maintain a safe workplace that includes "ensur[ing] 'prospective and continuing compliance' with the legislatively imposed non-delegable obligation to all employees on the job site, without regard to contractual or employer obligations." 278 N.J.Super. at 142-43 (citation omitted). The court further observed that the common-law duty of a general contractor to assure the safety of its subcontractor's employees is not necessarily identical to the duty that arises from a general contractor's duty to comply with an OSHA regulation. Id. at 142, 650 A.2d 808. It thus recognized that "[c]ompliance with an OSHA regulation does not in and of itself preclude a finding of negligence," and, conversely, non-compliance with an OSHA regulation does not, as such, preclude a finding that there was no negligence. Ibid.

...

The court in Bortz, supra, concluded that the State's statutory imposition of a duty on the general contractor expressed a clear legislative intention "to ensure the protection of all of the workers on a construction project, irrespective of the identity and status of their various and several employers, by requiring, either by agreement or by operation of law, the designation of a single repository of the responsibility for the safety of them all." 151 N.J.Super. at 321, 376 A.2d 1261; cf. Dawson v. Bunker Hill Plaza Assocs., 289 N.J.Super. 309, 320-21, 673 A.2d 847 (App.Div.1996) (reaffirming state public policy favoring general contractor as single repository of responsibility of safety of all employees on job but declining to extend liability to landowner, upon whom OSHA imposes no affirmative duties).

Alloway v. Bradlees, 157 N.J. at 237-38. Furthermore, the interim sub-contractor that hired plaintiff's employer, JM Framing Corporation, equally bears responsibility for failing to see to it that OSHA was enforced with respect to its sub-contractors on the site. See, e.g., Carvalho v. Toll Bros., 143 N.J. 565 (1996) (contractor with control over sub-contractor responsible for job site OSHA violations); Alloway v. Bradlees Inc., 157 N.J. 221, 237-38 (1999) (same); see also 29 CFR §1926.32(k) (defining "employer" for purposes of OSHA safety training, compliance and enforcement under §1926.20(b)(1) as "contractor or subcontractor.")

In this case, as has been exhaustively set forth above, both defendants JM Framing and Kara Homes failed to meet their responsibilities under OSHA and the other workplace safety standards. Both defendants failed to see to it that the sub-contractors were properly trained in OSHA and ladder safety; negligently allowed on site an employer that did not adhere to OSHA and would replace any worker who complained; failed to see to it the proper equipment was on site to safety complete the work and; failed to properly supervise and manage safety. Their summary judgment motions should be denied.

C. The Unpublished Opinion Kara Homes Relies Upon Has No Precedential Value and is Otherwise Not Applicable

The Court Rules provide that no unpublished opinion shall constitute precedent or be binding upon any court. R. 1:36-3; see e.g., Trinity Cemetry v. Wall Tp., 170 N.J. 39, 48 (2001)(Verniero, J., concurring)(an unreported decision "serve[s] no precedential value and cannot reliably be considered part of our common law'). The rule only permits unpublished opinions to be called to the attention of the court by a party as a type of secondary research material. Falcon v. American Cyanamid, 221 N.J. Super. 252, 261 (App. Div. 1987). Accordingly, as a threshold matter, the unpublished opinion defendant Kara Homes relies upon has no precedential value and should be disregarded. This is particularly so where the published body of case law setting forth the general contractor's duty for OSHA compliance and enforcement on the jobsite is well established and well settled.

Rule 1:36-3 further states:

No unpublished opinion shall be cited to any court by counsel unless the court and all other parties are served with a copy of the opinion and of all other relevant unpublished opinions known to counsel including those adverse to the position of the client.

The unpublished opinion Kara Homes cites is factually off the mark and simply has no applicability to this case. If we were going to dispense with the binding precedents of Alloway, Kane, Meder and Bortz, in favor of unpublished decisions, then the appropriate decision to rely upon is Analuisa v. Richards, et al., A-6669-03T1 (Decided June 21, 2005) , attached hereto as Exhibit T.

In Analuisa v. Richards, et al., A-6669-03T1 (Decided June 21, 2005), just like the instant matter, plaintiff was standing on a ladder supplied by his employer when he fell from the ladder to the ground sustaining multiple injuries. Plaintiff argued that the general contractor on the site- who did not get involved in the manner and means of the job- nevertheless owed him a non-delegable duty to maintain a safe work environment since under OSHA regulations and general negligence liability law, the general contractor is responsible to ensure that the work site is safe. (Exhibit T- Analuisa v. Richards at 2) Plaintiff's expert in Analuisa arrived at essentially the same opinions and conclusion as Dr. Nolte does in this case; for example: 1) that the strait ladder was not the appropriate equipment for this work and that it would have been better to use a scaffold or lift; 2) that Kara Homes (and JM Framing) violated their duties under OSHA to ensure that its requirements are met; 3) that Kara Homes (and JM Framing) violated OSHA, among other ways, by failing to see to it the sub-contractor employees were properly trained in construction safety and the use of ladders as is required under 29 CFR §1926.21 and §1926.1060(a)(1)(v) and by failing to see to it they were provided the necessary equipment (not necessarily by them), and that their safety was properly supervised.

The defendant in Analuisa made essentially the same arguments Kara Homes makes here; that they have no liability because they did not supervise the plaintiff or get involved in the manner and means of the work. The Appellate Division held that the general contractor owed a duty to the plaintiff since obligations imposed against general contractors under OSHA support a tort claim under state law citing Alloway, supra, 157 N.J. at 235-36 (violation of OSHA regulation relevant on liability inquiry). Id. at 7. Thus, plaintiff's evidence of OSHA violations supported his cause of action against the general contractor. Id. at 11.

Specifically, the OSHA regulations provide that "no contractor or subcontractor for any part of the contract work shall require any laborer or mechanic employed in the performance of the contract to work in surroundings or under working conditions which are unsanitary, hazardous, or dangerous to his health or safety." 29 C.F.R. § 1926.20. Thus the subcontractor (JM Framing) had the responsibility to enforce the OSHA regulations of its sub-contractors, and Kara Homes as the general contractor was ultimately responsible enforce these regulations as it relates to all on-site contractors. 29 C.F.R. § 1926.16. As such, a general contractor cannot delegate its duties to maintain a safe workplace under the federal OSHA regulations to another; but rather, the general contractor must maintain overall responsibility for the project.

(a) The prime contractor and any subcontractors may make their own arrangements with respect to obligations which might be more appropriately treated on a jobsite basis rather than individually. Thus, for example, the prime contractor and his subcontractors may wish to make an express agreement that the prime contractor or one of the subcontractors will provide all required first-aid or toilet facilities, thus relieving the subcontractors from the actual, but not any legal, responsibility (or, as the case may be, relieving the other subcontractors from this responsibility). In no case shall the prime contractor be relieved of overall responsibility for compliance with the requirements of this part for all work to be performed under the contract.

(b) By contracting for full performance of a contract subject to section 107 of the Act, the prime contractor assumes all obligations prescribed as employer obligations under the standards contained in this part, whether or not he subcontracts any part of the work.

(c) To the extent that a subcontractor of any tier agrees to perform any part of the contract, he also assumes responsibility for complying with the standards in this part with respect to that part. Thus, the prime contractor assumes the entire responsibility under the contract and the subcontractor assumes responsibility with respect to his portion of the work. With respect to subcontracted work, the prime contractor and any subcontractor or subcontractors shall be deemed to have joint responsibility.

(d) Where joint responsibility exists, both the prime contractor and his subcontractor or subcontractors, regardless of tier, shall be considered subject to the enforcement provisions of the Act."

29 C.F.R. §1926.16 (emphasis added); see Alloway v. Bradlees, supra at 237-38. (a general contractor on a work site has a non-delegable duty to maintain a safe workplace that includes "ensur[ing] 'prospective and continuing compliance' with the legislatively imposed non-delegable obligation to all employees on the job site, without regard to contractual or employer obligations.")

Accordingly, defendants' motions for summary judgment should be denied.

Keefe Bartels & Clark
Monmouth County, New Jersey

By: GERALD H. CLARK
Counsel for Plaintiffs

Dated: March, 2008

1. Linder, Marc. Fatal Subtraction: Statistical MIAs on the Industrial Battlefield. 20 J. Legis. 99 (1994).

2. Linder, 20 J. Legis. 99.

3. Linder, 20 J. Legis. 99.

4. Linder, 20 J. Legis. 99.

5. Linder, 20 J. Legis. 99.

6. Linder, 20 J. Legis. 99.

7. Linder, 20 J. Legis. 99.

8. Linder, 20 J. Legis. 99. See Also Getting Away with Murder: Federal OSHA Preemption of State Criminal Prosectuions for Industrial Accidents. 101 Harv. L. Rev. 535 (1987).

9. Linder, 20 J. Legis. 99.