SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0933-20

HUGO M. PILLACELA

ARIAS,

Plaintiff-Appellant,

v.

129 LEVITT, LLC,

Defendant,

and

CARDINAL ESTATES, LLC,

ROSSEN FRAMING, LLC, 

BRITO CONSTRUCTION, LLC, 

and GMG BRITO 

CONTRACTORS, LLC,

Defendants-Respondents.

______________________________

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-6750-18.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although 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.
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A-0933-20

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 sustained while working at a 

construction site for a new home, 129 Levitt Avenue in Bergenfield. Plaintiff 

appeals from a Law Division order granting the summary judgment dismissal of 

his claims against defendant 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 jury 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, viewed 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 started 
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renovating properties and building homes.1 129 Levitt Avenue was the third 

home built by Schoulman.

As 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. The only terms of the contract between Cardinal Estates

and "Alex" (last name unknown),2the owner of Rossen, were that Rossen would

complete the framing work at 129 Levitt Avenue and Cardinal Estates would 

pay Rossen.3

1

 According to Schoulman, when he entered the construction field he was aware 

that the Occupational Safety and Health Administration (OSHA) played a role 

in enforcing safety on 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. Verbally, yes. 

Q. What was the agreement? 
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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 subcontracted to other subcontractors the work it verbally 

agreed to complete. Thus, Schoulman was unaware that Rossen subcontracted 

the sheathing portion of the framing work to Jaime Castillo, plaintiff's employer. 

Schoulman maintained that the subcontractors 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" have had the authority to correct 

the condition. While he stated 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.
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of wood on the ground to block his ladder from sliding out from under him. 

Soon thereafter, one of the workers 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, causing him to fall. As a result, 

plaintiff suffered severe injuries and required spinal fusion surgery.

Plaintiff retained William Mizel (Mizel), a board-certified safety 

professional, as a liability expert. Over the past thirty years, 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 

framing 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 outlining the safety responsibilities of prime and general 

contractors on construction sites: 

a) The prime contractor and any subcontractors may make 

their own arrangements with respect to obligations 
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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 firstaid 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 

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(a)-(d).]

In his expert report, Mizel explained that under Letters of Interpretation 

issued by OSHA, a "general contractor normally has responsibility to ensure that 
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the other contractors fulfill their obligations with respect to employee safety 

which effects the entire site"; in addition, a general contractor shares

"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 

employer like a general or prime contractor exercised reasonable care to prevent 

and detect violations of OSHA standards on a construction site, OSHA 

compliance officers 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 surface 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 and 
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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 balance.

Mizel concluded that Cardinal was citable for the ladder safety hazards, 

as a controlling employer, that resulted in plaintiff's injuries because it did not 

act with reasonable care as a general contractor when it failed to:

• "conduct proactive safety inspections";

• "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 

identified standards adopted by professional organizations that were breached 

by Cardinal on the construction site.

Plaintiff filed suit in September 2019, naming Cardinal Estates and 129 

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, 

the 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 the 

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 judgment . . . as a matter of law." After reviewing 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 jury or whether it is so one-sided that 
10 A-0933-20

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 trial. 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 nonmoving 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-0933-20

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 construction 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 

protection 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 the 
12 A-0933-20

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 238. 

"[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)). 

"Foreseeability 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 exercise 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-0933-20

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

fact-specific and principled," 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." Id. 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 

incorrectly 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 general contractor owes a duty of reasonable care to the employee of a 
14 A-0933-20

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. 1926.1053(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 requirements. 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. Indeed, 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 Alloway

requires.

Defendant subcontracted the framing work at 129 Levitt Avenue to 

Rossen Framing, which then subcontracted the work to Jaime Castillo, plaintiff's 
15 A-0933-20

employer. 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 there is no convincing evidence that defendant's oral 

contracts prohibited subcontracting or in any way addressed worker safety. 

The 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 injuries 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 

stated he visited the construction site "every other day." Importantly, defendant 

agreed that if he saw something unsafe, he "absolutely" had the authority 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 on 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 Schoulman 
16 A-0933-20

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 requirements; in fact, he lacked 

knowledge of relevant OSHA regulations 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 record 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 and 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.