SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

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HUGO M. PILLACELA ARIA S , Plaintiff

- Appellant,

v. 129 LEVITT, LLC, Defendant, and
CARDINAL ESTATES , LLC, ROSSEN FRAMING, LLC, BRITO CONSTRUCTION, LLC, and GMG BRITO CONTRACTORS, LLC, Defendant s - Respondent s .

_______________ ____ ___________

Submitted December 8, 2021

– Decided January 6, 2022 Before Judges Hoffman, Whipple , and Susswein. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court

. " A lthough it is posted on the internet , this opinion is binding only on the parties in the case and its use in other cases is limited

. R

. 1:36

- 3.2 A

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- 20 Ginarte Gallardo Gonzelez Winograd, LLP, attorneys for appellant (John J. Ratkowitz, on the briefs). Goetz Schenker Blee & Wiederhorn, LLP , attorneys for respondent (David W. Gannon, on the brief).
PER CURIAM This matter arises from injuries plaintiff su stain ed while work ing at a construction site for a new home, 129 Levitt Avenue in Bergenfield

. Plaintiff appeals from a Law Division order granting the summary judgment dismi ssal of his claims against defend an t Cardinal Estates, LLC ( Cardinal Estates ) , the general contractor for 129 Levitt Avenue

. Plaintiff contends he presented sufficient evidence to withstand defendant ' s motion for summary judgment

. Because a reasonable ju ry weighing the evidence in plaintiff ' s favor could determine the existence of facts that would support the determination that Cardinal Estates breached a duty of care owed to plaintiff , we reverse . I. We ascertain the following facts from the record , view ed in the light most favorable to plaintiff as the non

- moving party. See Brill v. Guardian Life Ins. Co. of Am. , 142 N.J. 520, 523 (1995). Eran Schoulman , the sole member of Cardinal Estates, rented and sold used cars until 2017 , when he started3 A

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reno vating propert ies and building ho m es. 1 129 Levitt Avenue was the third ho me built by Schoulman.
A s the general contractor for 129 Levitt Avenue, Cardinal Estates had only oral contracts with its subcontractors

. On behalf of Cardinal Estates, Schoulman arranged for Rossen Framing, LLC (Rossen) to complete the framing work at 129 Levitt Avenue

. T he only terms of the contract between Cardinal Estates and "Alex" (last name unknown), 2 the owner of Rossen , were that Rossen would complete the frami ng work at 129 Levitt Avenue and Cardinal Estates would
pay Rossen. 3

1 According to Schoulman , when he enter ed the construction field he w a s a ware that the Occupational Safety and Health Administration (OSHA) played a role in enforcing safety o n construction sites; however, he never completed any OSHA safety courses.

2 Schoulman described Alex as Portuguese and acknowledged having difficulty communicating with him "[o]n the phone," but said he spoke "enough [English] to get by " in person .
3 At Schoulman 's deposition, the following colloquy occurred: Q. Did you have an agreement with Alex from Rosson Framing about the work he was going to do at 129 Levitt?
A. Verba l ly, yes. Q. What was the agreement?4 A

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Relevant to the matter under review , Schoulman admitted he did not know whether Rossen used OSHA

- trained workers. In addition, Schoulman was unaware that Rossen subcontract ed to other sub contractors the work it verbally agreed to complete

. Thus, Schoulman was unaware that Rossen subcontracted the sheathing portion of the framing work to Jaime Castillo, p laintiff ' s employer

. Schoulman maintained that the subcontractor s hired to perform the work on 129 Levitt Avenue were responsible for the safety of their workers , notwithstanding the absence of any written contracts with the subcontractors. Significantly, Schoulman admitted he had no understanding of the obligations of a general contractor under OSHA regulations when plaintiff's accident occurred. Nevertheless, Schoulman stated that if he saw an unsafe condition at the job site, he would "absolutely" hav e had the authority to correct the condition. While h e sta ted that he visited 129 Levitt Avenue every other day , he could not recall if he saw any workers wearing hard hats or using safety harnesses. On August 29, 2018, plaintiff reported to work at 129 Levitt Avenue and began working at 9 a . m. Initially , plaintiff secured his ladder by nailing a piece

A. Frame the house

. . . [a] nd [ you'll ] get paid.5 A

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of wood on the ground to b l ock his ladder from sliding out from under him. Soon therea fter, one of the work ers for the framing subcontractor approached
him and asked him to move. After plaintiff moved, the framing subcontractor asked him to relocate a second time , back to where he was initially working. When he returned to his initial location, the wood plaintiff had used to block his ladder from sliding was gone. Plaintiff attempted to secure the ladder by placing a single nail in wood at the base of the ladder ; however, when he went up the ladder to take measurements, the ladder shifted , caus ing him to fall. As a result,
p laintiff suffered severe injuries and required spi nal fusion surgery.
Plaintiff retained William Mizel (Mizel), a board

- certified safety professional , as a liability expert. O ver the past thirty year s, Mizel conducted over one thousand OSHA

- type investigations at various types of facilities. After reviewing the evidence in this case, Mizel concluded that Cardinal Estates acted as the general contractor on the jobsite, Rossen Framing acted as a prime fra ming contractor ; however, neither of these contractors provided any safety oversight. Mizel ' s report cited the following OSHA regulations , found at 29 C.F.R. 1926.16 , as outlin ing the safety responsibilities of prime and general contractors on constructio n sites: a) The prime contractor and any subcontractors may make their own arrangements with respect to obligations6 A

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- 20 which might be more appropriately treated on a jobsite basis rather than individually. Thus, for example, the prime contractor and his subcont ractors 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. 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 h is 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 su bcontractors, regardless of tier, shall be considered subject to the enforcement provisions of the Act. [29 C.F.R. 1926.16(a)

- (d).] In his expert report , Mizel explained that under Letters of Interpretation issued by OSHA , a " general contractor normally has responsibility to ensure that7 A

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the other contractors fulfill their obligations with respect to employee safety which effects the entire site "; in addition, a g eneral contractor share s

" responsibility for those violations by its subcontractors which it could reasonably have detected and corrected. " Mizel further noted that , according to
OSHA ' s Multi

- Employer Citation Policy, to determine whether a controlling

e mployer like a general or prime contractor exercised reasonable care to prevent and detect violations of OSHA standards on a construction site, OSHA

c ompliance o fficers inquire about whether a general or prime contractor:

a. conducted periodic inspections of appropriate frequency

. . . . ; b. implemented an effective system for promptly correcting hazards; and

c. enforce[ed ] the other employer's compliance with safety and health requirements with an effective, graduated system of enforcement and follow

- up inspection. Mizel concluded that plaintiff's accident occurred because OSHA safety regulations were violated on the jobsite. In particular, 29 C.F.R. 1926

. 1053(b)(6) was not followed, which requires ladders to be used only on a stable, level su rface unless secured to prevent displacement. Further, 29 C.F.R. 1926.1053(b)(7) was violated because ladders must be secured to prevent displacement when placed on a slippery surface. Finally, because plaintiff and8 A

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other workers were required to carry sheathing plywood up the ladders they were climbing, ladders on the jobsite were being used in a way that violated 29 C.F.R. 1926.1053(b)(22) , which prohibits carrying loads that can cause employees to lose their b alance. Mizel concluded that Cardinal was citable for the ladder safety hazards , as a controlling employer , that resulted in p laintiff ' s injuries because it did not act with reasonable care as a general contractor when it failed to :

• "conduct proactive safe ty inspect ions ";

• " implement an effective system for promptly correcting hazards "; and

• "enforce any type of safety requirements related to ladders or fall protection."
Mizel not only evaluated whether OSHA safety regulations were violated and whether Cardinal was citable for those violations , but his report also identifi ed standards adopted by professional organizations that were breached by Cardinal on the construction site.
Plaintiff filed suit i n September 20 19 , naming Cardinal Estates and 1 29 Levitt, LLC , 4 " the owner/ developer of the construction project , " as defendants.

4 According to Schoulman, the owner of 129 Levitt Avenue was 129 Levitt, LLC , a company owned by himself and Tal Venture. In November 2019, plaintiff dismissed his complaint against 129 Levitt, LLC

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Cardinal Estates moved for summary judgment in 2020

. On August 31, 2020,

t he motion judge granted Cardinal ' s motion , finding there "were no OSHA violations before [the] court to consider" and concluding the evidence did not support imposing a duty of care upon Cardinal. Plaintiff filed a motion for reconsideration , which a different judge denied on September 18, 2020 , after th e first judge retired.
II.
A. On appeal, we review summary judgment orders de novo , using the same standards applied by the trial courts

. Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. , 224 N.J. 189, 199 (2016). Rule 4:46

- 2(c) compels summary judgment "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a jud gment

. . . as a matter of law." After review ing the evidence presented "in the light most favorable to the non

- moving party , " Brill , 142 N.J.
at 540, we must determine " whether the evidence presents a sufficient disagreement to require submission to a ju ry or whether it is so one

- sided that10 A

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one party must prevail as a matter of law

. " Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 251

- 52 (1986)

. The non - moving party bears the burden to present evidence that there is a genuine issue of material fact for tr ial. Invs

. Bank v. Torres , 457 N.J. Super. 53, 64 (App. Div. 2018). " An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non

moving party, would require submission of the issue to the trier of fact. " R. 4:46

- 2(c). " [F] acts which are immaterial or of an insubstantial nature, a mere scintilla, fanciful, frivolous, gauzy or merely suspicious , " do not raise a genuine issue of material fact. Brill , 142 N.J. at 529 (quoting Judson v . Peoples Bank & Trust Co. of Westfield , 17 N.J. 67, 75 (1954)) (internal quotation marks omitted). "To sustain a cause of action for negligence, a plaintiff must establish four elements: '(1) a duty of care, (2) a breach of that duty, (3) proximate cause, and (4) actual damages.'" Townsend v. Pierre , 221 N.J. 36, 51 (2015) (citations omitted). "[T]he question of whether a duty exists is a matter of law properly decided by the court

. . . . " Strachan v. John F. Kennedy Mem'l Hosp. , 109 N.J. 523, 529 (1988).11 A

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- 20 B. The dispositive issue in this case is whether Cardinal Estates, the general contractor on this new

- home construction project, owed a duty of care to ensure the safety of plaintiff, an employee of a subcontractor of a subcontractor. Our analysis is guided by the principles adopted by the Court in Alloway v. Bradlees,
Inc

. , 157 N.J. 221 (1999 )

. A general contractor has an even more comprehensive duty than the property owner to ensure the safety of the employees of any subcontractors working at a c onstruction site. Id. at 232

- 33. This duty is based on the public policy considerations embodied in the Federal Occupational Safety and Health Act and New Jersey's Construction Safety Act:

It was obviously the legislative intention to ensure the protecti on of all of the workers on a construction project, irrespective of the identity or status of their various and several employers, by requiring, either by agreement or by operation of law, the designation of a single repository for the safety of them all. [ Bortz v. Rammel , 151 N.J. Super. 312, 321 (App. Div. 1977).] That "single repository" is the general contractor, not the property owner. See Dawson v. Bunker Hill Plaza Assocs. , 289 N.J. Super. 309, 321 (App. Div. 1996). Any contractor that hires another contractor to perform work on the12 A

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owner's project will be viewed as the "general" or "prime" contractor for purposes of establishing a duty of care. See Alloway , 157 N.J. at 2 38. "[G]eneral negligence principles govern the determination of whether a legal duty should be imposed on a contractor for injuries sustained by another contractor's employee." Slack v. Whalen , 327 N.J. Super. 186, 191 (App. Div. 2000) (citation omitted ). A major consideration of the determination of the existence of a duty of reasonable care under negligence principles is the foreseeability of the risk of injury. Alloway , 157 N.J. at 230 (citing Carey v. Lovett , 132 N.J. 44, 57 (1993)). "Foreseeabi lity requires a determination of whether the defendant was reasonably able to ascertain that his allegedly negligent conduct could injure the plaintiff in the manner it ultimately did." Robinson v. Vivirito , 217 N.J. 199, 212 (2014). While foreseeability is the major consideration for imposing a tort duty, the determination of such a duty "involves identifying, weighing, and balancing several factors

– the relationship of the parties, the nature of the attendant risks, the opportunity and ability to exerc ise care, and the public interest in the proposed solution." Alloway , 157 N.J. at 230 (citing Hopkins v. Fox & Lazo Realtors , 132 N.J. 426, 439 (1993)).13 A

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The analysis leading to the imposition of a duty of reasonable care is "both fact

- specific and princip led," and must satisfy "an abiding sense of basic fairness under all of the circumstances in light of considerations of public policy." Ibid. Determining whether a general contractor owes a duty of care to assure the safety of a subcontractor's employee " necessarily involves consideration of the relevance of statutory and regulatory requirements, more specifically, OSHA regulations, imposed on general or prime contractors relating to the safety of employees of subcontractors at the work site." I d. at 229

. Where it is alleged that a contractor violated OSHA regulations, such violation is treated similarly to a violation of an industry standard. Costa v. Gaccione , 408 N.J. Super. 362, 372 (App. Div. 2009) (citation omitted). Viewing the facts in the light most favorable to the plaintiff, the motion judge erred in granting summary judgment to Cardinal Estates. The judge incorrect ly determined that the absence of actual citations by OSHA for violating OSHA regulations ended the inquiry into whether the relevant regulatory scheme favored the imposition of a duty of care upon Cardinal Estates owed to plaintiff. This analysis does not comport with Alloway

. In Alloway , the Supreme Court made clear that, when analyzing whether
a ge neral contractor owes a duty of reasonable care to the employee of a14 A

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subcontractor, the inquiry "necessarily involves consideration of the relevance of statutory and regulatory requirements, more specifically, OSHA regulations." 157 N.J. at 229. Mizel's report clearly describes that OSHA regulations were violated on the jobsite. In particular, Mizel identifies 29 C.F.R. 1926.1053(b)(6) (requiring ladders to be used only on a stable, level surface unless secured to prevent displacement), 29 C.F.R. 1926.10 53(b)(7) (requiring ladders to be secured when used on a slippery surface), and 29 C.F.R. 1926

. 1053(b)(22) (prohibiting carrying loads that can cause employees to lose their balance). The motion judge failed to consider these relevant regulatory requireme nts. Had the judge considered these regulatory requirements, summary judgment would have been inappropriate. Considering the relevant regulatory requirements identified in Mizel's report, plaintiff's injuries were foreseeable to Cardinal Estates. Indee d, plaintiff fell from a ladder, suffering spinal injuries. Mizel identified regulations that aim to prevent falls from ladders. Plaintiff's injuries were therefore foreseeable to defendant after considering the relevant regulatory requirements , as Allow ay requires. Defendant subcontracted the framing work at 129 Levitt Avenue to Rossen Framing, wh ich then subcontracted the work to Jaime Castillo, plaintiff ' s15 A

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employe r . Cardinal Estates contends that it did not know that Rossen Framing had subcontracted work to Jaime Castillo. Defendant conducted all business through oral contracts and t here is no convincing evidence that defendant's oral contracts prohibited subcontracting or in any way addressed worke r safety

. T he nature of the attendant risks were of a type that the relevant OSHA regulations seek to prevent. As outlined by plaintiff's expert , relevant OSHA regulations sought to prevent injuries from an unstable ladder. Plaintiff suffered his inju ries when he fell from a ladder that was not secured properly. Significantly , Schoulman admitted he had the opportunity and ability to exercise control over the construction site at 129 Levitt Avenue. Defendant
stat ed he visited the construction site "every other day." Importantly, defendant agreed that if he saw something unsafe, he "absolutely" had the auth ority to have the work done in a different way. Accordingly, we find that Cardinal Estates retained sufficient opportunity and ability to exercise control under Alloway

. The final Alloway factor is whether the public interest weighs in favor of imposing a duty o n Cardinal Estates

. Schoulman, the sole member of Cardinal Estates, worked in real estate before selling used cars. Approximately a year before plaintiff's accident, Schoulman started working as a member of Cardinal Estates building new homes

. Becoming a general contractor meant Schoulman16 A

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filled out a form, paid a fee, and received a general contractor's license. Schoulman took no courses in construction site safety. Nor did he take any steps to educate himself on the relevant OSHA requirement s ; in fact, he lacked knowledge of relevant OSHA regulation s as recently as his deposition. The public interest is clearly served when construction contractors are charged with knowledge of relevant safety regulations in cases like this one, where the r ecord lacks any credible evidence of any steps taken to protect workers from unsafe working conditions

. When contractors and subcontractors are aware of relevant safety regulations, the risks inherent in construction work
are minimized for all employees a nd the public. Had the court properly considered the relevant OSHA requirements rather than summarily dismissing plaintiff's assertions, summary judgment would have been inappropriate in this case. Reversed and remanded. We do not retain jurisdiction

.