Docket No. A-4583-17T1
Submitted by New Jersey Personal Injury Lawyer, Jeffrey Hark.
ISSUES:
Did the trial court err in granting summary judgment dismissal of plaintiff’s wrongful death action against defendant Ashbritt Environmental, Inc. (Ashbritt)? Did the trial court err in denying Ashbritt’s motion on cross-appeal to bar as “net” the opinion of the Friedauers’ engineering expert?
FACTS:
In the aftermath of Hurricane Sandy which struck much of New Jersey, the state hired Ashbritt Environmental, Inc. to be its prime contractor “for hurricane or other natural disaster debris recovery, remediation and disposal in Brick Township.” Ashbritt subcontracted a portion of the work to Glenside Equipment Co., the decedent’s employer. During the course of his employment, the decedent was directing traffic when he was struck and fatally injured by a Nissan Pathfinder.
The trial court concluded that Ashbritt owed no duty to Glenside’s employees while they performed the subcontracted work. Based on the summary judgment record, the trial court determined Ashbritt retained no control over the manner and means of how Glenside performed its work, did not knowingly engage an incompetent subcontractor, and did not subcontract inherently dangerous work. After conducting a fact-specific and principled analysis, which included consideration of the foreseeability of injury, the relationship of the parties, the nature of the risk involved, the ability to exercise care, and the public interest, the trial court found as a matter of law that Ashbritt owed no duty to Glenside’s employees.
The plaintiffs’ engineer opined that the terms of the Ashbritt-Glenside subcontract required Ashbritt to conform to Occupational Safety and Health Administration (OSHA) regulations. According to the expert, Ashbritt’s failure to comply with OSHA regulations and failure to monitor Glenside to ensure its employees complied with OSHA regulations rendered Ashbritt ultimately responsible for the safety of the work site and the fatal accident. The appellate court agreed with the trial court’s conclusion which noted that whether Ashbritt owed a duty to decedent was a question posed for the court, not the plaintiffs’ engineer.
Regardless of the fact that OSHA did not cite Ashbritt for any violations, the trial court ruled that non-compliance with OSHA regulations, without more, does not give rise to a cause of action. The trial court reasoned that OSHA regulations were only to be used in making a threshold determination of whether a general contractor owed a duty of care to a subcontractor’s employees.
On appeal, the appellate court affirmed the trial court’s decision to grant summary judgment dismissal of plaintiff’s wrongful death action because they too believed that there was no genuine issue of fact that required resolution by a jury, and that Ashbritt was entitled to summary judgment as a matter of law. One thing the appellate court added to their decision not which was not included in the trial court’s decision was that the plaintiff framed the issue as whether Ashbritt was entitled to immunity, which was incorrect. As the appellate court noted, Ashbritt correctly pointed out that the question was not one of immunity, but rather one of duty. Since the appellate court affirmed the dismissal of plaintiffs’ complaint against Ashbritt, the court stated that Ashbritt’s cross-appeal challenging the denial of its motion to bar the engineer’s opinion was moot.
At Hark & Hark we represent clients in these types of matters. We do not require any fees up front because payment is contingent based. We only get paid if you recover. Please call us to discuss any wrongful death case or survivor action. We represent clients for any case in any county in New Jersey including Camden, Burlington, Essex, Atlantic, Gloucester, Cape May, Cumberland, Ocean, Salem, and Mercer counties.