Submitted by New Jersey Personal Injury Lawyer, Jeffrey Hark.
This is another case involving the absolutely necessity to invest and find the best expert for your individual cases. An expert who knows what his specific area of expertise and professional obligations are, where to find proof of negligence in the safety regulations, and how to communicate them in a clear and concise manner to prove negligence and survive the standard summary judgment motion filed by the defense attorneys at the close of discovery.
In this case plaintiff was allegedly injured when he fell off of a ladder while performing sheet rocking in an elevator shaft in a private home construction site of a home under construction and Brigantine New Jersey. The plaintiff obtained Worker’s Compensation coverage and also sued the land owner, general contractor, subcontractor and others. The issue in the case is whether the drywall sub-subcontractor was able to bring a claim against the general contractor and others because he was instructed to use a ladder as opposed to scaffold in the elevator shaft when he was working. It was clear at the conclusion of testimony that use of the ladder and securing the ladder in a makeshift matter was unsafe. Plaintiff provided an expert report discussing numerous industry standards and how the general contractor and subcontractor deviated from those standards. The expert made reference to OSHA regulations and how this general contractor failed to comply with the regulations which caused plaintiff’s injuries as well.
This court relied on the New Jersey Supreme Court decision in Alloway v. Bradlees, 157 N.J. 221 (1999), which outlined the general contractor’s duty to maintain the premises in a reasonably safe work condition for persons who the contractor may reasonably expect to come to the work site. The duty of care at the work site for general contractors and sub-contractors depends on the foreseeability of the risk of injury, identifying and balancing several factors. Those factors include the relationship of the parties, the intended nature of the risk, the opportunity and ability to exercise care and the public interest in the proposed solutions. Further the duty can clearly be established by the applicable federal safety regulations. OSHA regulations are considered highly relevant.
It is important to understand that New Jersey Supreme Court has explicitly stated violations of OSHA regulations without more do not constitute an independent basis of a direct tort claim/cause of action but those very same proof of OSHA violations do constitute evidence of negligence sufficient to overcome a motion for summary judgment.
In this case plaintiff’s expert produced a report explaining the behavior performed by the general and subcontractor violated OSHA regulations; clearly evidence of negligence. The appellate panel determined that as a result of said report, at the summary judgment motion stage of the litigation, the non-moving plaintiff is entitled to all reasonable inferences. As a result, plaintiff is entitled to present his case to a jury and the summary judgment motion decision by the trial judge was reversed because plaintiff established the cause of action of negligence through his expert and created a question of fact for the jury to determine based on the violation of OSHA regulations.
Jeffrey S. Hark, Esq.
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