SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1760-19

ALAN O'CONNELL and

LINDA O'CONNELL, his wife,

Plaintiffs-Respondents,

v.

MR. JOHN,

Defendant, 

and

NETWORK CONSTRUCTION

COMPANY, INC.,

Defendant-Appellant.

__________________________

Argued May 26, 2021 – Decided June 25, 2021

Before Judges Whipple, Rose and Firko.

On appeal from the Superior Court of New Jersey, Law 

Division, Camden County, Docket No. L-1222-17.

Michael J. Marone argued the cause for appellant 

(McElroy, Deutsch, Mulvaney & Carpenter, LLP, 

NOT FOR PUBLICATION WITHOUT THE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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attorneys; Michael J. Marone and Richard J. Williams, 

Jr., of counsel and on the briefs).

Michael A. Galpern argued the cause for respondents 

(Javerbaum Wurgaft Hicks Khan Wikstrom & Sinins, 

PC, attorneys; Eric G. Kahn, of counsel and on the 

brief; Annabelle Steinhacker, on the brief).

PER CURIAM

Defendant Network Construction Company, Inc. appeals the Law 

Division's December 6, 2019 order entering judgment and awarding plaintiffs, 

Alan O'Connell and Linda O'Connell, $2,522,881.53, inclusive of pre-judgment 

interest, in this construction accident case tried before a jury. Defendant also 

appeals the denial of its motion for a new trial. We affirm.

I.

We discern the following facts and procedural history from the record on 

appeal. On April 1, 2015, plaintiff Alan O'Connell1 worked as a tile finisher for 

a subcontractor, Baumgardner Floor Coverings (BFC), on a construction project 

in Galloway Township, managed by defendant, the general contractor. As of 

that date, plaintiff had already been working for three or four days in a building 

1

 We refer to Alan O'Connell as "plaintiff" in this opinion unless otherwise 

noted.
3

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at the jobsite and had been using temporary portable toilets2located near an exit 

in the middle of the building.

However, on April 1, those toilets were blocked off due to newly poured 

concrete, leaving only one available portable toilet located outside, several 

hundred yards away against the building's exterior, and inside a narrow planting 

bed. Plaintiff testified that there was an eighteen-inch space between the door 

of the portable toilet and the curb framing the edge of the planting bed. No one 

had measured the height or width of the curb. On the opposite side of the curb 

was a parking lot where there was a small wooden step or ramp that workers 

with wheelbarrows would lift up and use to dispose of debris in an adjacent 

dumpster. When the door of the portable toilet was fully opened, it could hit the 

dumpster.

That day, plaintiff had no difficulty stepping from the parking lot over the 

curb to enter the portable toilet. He had enough room to open the door without 

having to step into the planting bed. Upon exiting, plaintiff opened the door, 

stepped out, and was simultaneously looking for a front-end loader that he 

previously observed in the parking lot before entering the portable toilet. At 

2

 In this opinion, we refer to portable toilet as "porta john," "porta-potty," "porto-potty," and "toilet" interchangeably.
4

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that moment, the heel of his boot struck the curb, causing him to trip, fall, and 

twist his right knee.

Dr. Matthew Pepe, an orthopedic surgeon, diagnosed plaintiff as suffering 

from complex tears of the medial and lateral menisci and a neuroma of the right 

knee. After undergoing knee injections and five surgeries, Dr. Pepe opined that 

plaintiff would never work again as a tile finisher; would always have pain and 

limited function; and eventually would require knee replacement surgery.

On March 21, 2017, plaintiffs filed a negligence complaint against 

defendant and co-defendant Mr. John, seeking damages resulting from plaintiff's 

accident at the construction site. Plaintiff's wife also asserted a claim for loss 

of consortium. Defendant and Mr. John filed answers to the complaint. Prior 

to trial, plaintiffs' claims against Mr. John were settled and dismissed.

The case was tried over eight days from October 21 to November 1, 2019. 

The parties stipulated that plaintiff's past medical expenses totaled $101,980.79. 

Plaintiff's wife testified he is in pain on a daily basis and that his injuries 

substantially worsened his life and their lives together. Plaintiffs' liability 

expert, Dr. Stephen A. Estrin, was qualified as an expert in Occupational Safety 
5

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and Health Administration (OSHA) and construction safety.3 Estrin opined that 

as the general contractor, defendant was solely responsible for plaintiff's 

accident and injuries under three theories: (1) failing to meet federal OSHA 

requirements; (2) failing to meet the obligations of defendant's prime 

construction contract; and (3) failing to meet the obligations of the industry's 

standard practice to maintain a jobsite free of obvious tripping hazards that could 

cause injury.4

Specifically, Estrin first testified that the OSHA construction regulations 

found in 29 C.F.R. § 1926 placed sole responsibility on the general contractor 

for the safety of all workers at a jobsite.5 That is, defendant, as a general 

3

 In April 2019, defendant moved to bar Estrin's testimony and report. On 

October 21, 2019, the trial court denied defendant's motion but permitted 

defendant to renew its motion at the time of trial.

4

 During oral argument, counsel for the parties could not confirm whether 

defendant was cited for any OSHA violations or if an OSHA hearing was 

conducted.

5

 We note that OSHA's general safety and health provisions for construction 

and general industry, 29 C.F.R. § 1926.20, were amended in February 2020 

following this trial. The summary of the amendments states: "These revisions 

do not affect the substantive requirements or coverage of the standards, do not 

modify or revoke existing rights or obligations, and do not establish new rights 

or obligations." OSHA Standards and Regulations; Corrections, 85 Fed. Reg. 

8726 (Feb. 18, 2020) (Summary).
6

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contractor controlled by a prime construction contract, was ultimately 

responsible under OSHA standards for the safety of all workers who came onto 

the construction site.

Estrin next testified about defendant's prime construction contract. 6 An 

enlarged copy was shown to the jury. It read in part:

§ 3.3 SUPERVISION AND CONSTRUCTION 

PROCEDURES

§ 3.3.1 The [c]ontractor shall supervise and direct the 

[w]ork, using the [c]ontractor's best skill and attention. 

The [c]ontractor shall be solely responsible for, and 

have control over, construction means, methods, 

techniques, sequences and procedures and for 

coordinating all portions of the [w]ork under the 

[c]ontract, unless the [c]ontract [d]ocuments give other 

specific instructions concerning these matters.

Estrin stated that those general contract conditions came from the 

industry-wide standard legal forms prepared by the American Institute of 

Architects (AIA) for construction projects and conferred sole liability on 

defendant for jobsite worker safety. He explained:

[T]he general conditions of the contract in this case are 

[taken from] an AIA, . . . general conditions to the 

prime contract. It's the AIA 201-20[0]7. They have 

within it a lot of stuff, but the two parts of it that are 

6

 Plaintiff describes the contract as defendant's "contract with [p]laintiff's 

employer." However, Estrin was speaking about the prime construction contract 

"between Barrett, the owner of the property" and defendant. 
7

A-1760-19

extremely important are Article 3 Contractor, 

specifically . . . section 3.3.1, which states, in sum and 

substance, that the contractor shall apply his best skill 

and ability to the work and that he is solely responsible 

for construction means and methods, techniques, 

procedures, sequencing, and coordination of the work.

Now, construction means and methods in and of 

themselves, by definition, include job site safety. 

However, because the writers of that general conditions 

[sic], which go all the way back to 1992, have a specific 

section which deals with personal safety and property. 

And that's Article 10. Article 10.2 deals specifically 

with workers.

. . . .

That's the safety article of the general conditions. 

It deals with personal and property protection.

Estrin further stated that Section 3.3.1 of the AIA's standard form 

conditions and of defendant's signed contract made the general contractor "one 

hundred percent responsible. No matter what you subcontract out, whatever you 

do, you are solely responsible, one hundred percent, for your direct employees 

and your subcontractors . . . ." Under Section 3.3, the general contractor also 

was solely responsible for "housekeeping," which meant "[h]ow you set 

equipment up on the job, how you set temporary toilets up on the job, all of that 

is housekeeping." Thus, in addition to OSHA regulations making defendant 
8

A-1760-19

responsible for everyone on the jobsite, defendant had signed a "contractual 

promise to be solely responsible for the safety and the housekeeping."

Next, Estrin testified that defendant was liable for all of plaintiff's injuries 

because it failed to meet the obligations of the industry's standard practice to 

maintain a jobsite free of obvious tripping hazards that could cause injury. 

Specifically, defendant had failed to exercise reasonable care in the portable 

toilet's positioning, which created an obvious tripping hazard. In addition, 

Estrin attributed responsibility to defendant's representative, the construction 

site supervisor, superintendent, John L. Carman, and pointed to defendant's 

safety manual. 

First, according to the interrogatories submitted by defendant's president, 

Carman was the person responsible for directing placement of the portable toilet 

on the jobsite. Plaintiff's counsel then read Carman's deposition testimony to 

the jury:

Q. Did you ever receive any OSHA training?

A. No.

Q. Before this accident ever happened either on this job 

site or at any other job site, you had [sic] ever seen a 

portable toilet near a curb?

A. Specifically no, but I've seen them a lot of different 

places.
9

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Q. But you have to move them and put them in an area 

on the job site that [is] not only convenient, but [is] as 

safe as possible. Is that correct?

A. That's correct.

Q. And, sir, if you look at the location of the portable 

toilet there, is there any reason why that door has to 

open out facing the curb?

A. No. It could have been spun the other way.

Q. However, nothing would prevent that . . . portable 

toilet . . . [f]rom being spun [ninety] degrees, though, 

would it?

A. Not that I'm aware of.

Q. And if it was spun [ninety] degrees, someone could 

walk out and take multiple steps on a flat surface; right?

A. Yes.

Q. Sir, I think we already went over it, but can we agree 

that someone shouldn't step out of a portable toilet and 

onto a curb; right?

A. Yes.

Q. And we already said that [defendant] was 

responsible for the overall safety of the job site; right?

A. That's true.

Q. Do you agree with me that locating a place for 

portable toilets should not create any unsafe or tripping 

hazards to exposed workers?
10 A-1760-19

A. I agree.

Q. And we agree that someone should not be hurt 

stepping out of a portable toilet and onto a curb; 

correct?

A. Yes.

Based on this deposition testimony, Estrin concluded that Carman was not 

a "competent person" and that defendant did not have any competent person 

supervising the jobsite. According to Estrin, a "competent person" would have 

noticed there were tripping hazards near the portable toilet and corrected them. 

He elaborated:

[A] competent person, by definition under OSHA, at 

[29 C.F.R. §] 1926.32(f) states that it is an individual 

who is capable of determining existing and predictable 

hazards in the workplace and has the authority to take 

immediate correction when those hazards are 

identified.

So now we start with you're going to put a porta 

john in a location. That's a predictable hazard if that 

location has a curb in front of the porta john access and 

egress. That's predictable. So you don't put it there to 

begin with. If, for some reason, you decide to put it 

there, you make a mistake, well now it's an existing 

hazard.

This unit was in place approximately four weeks 

prior to [plaintiff]'s accident. They -- and a competent 

person is required under 1926.20(b)(2) to make regular 

and frequent inspections of the job site, which Mr. 
11 A-1760-19

Carman testified that he did. Therefore, he had to check 

this site out not only for a porta john, but for the 

dumpster.

Now, Mr. Carman . . . has . . . no training to 

identify these kind of hazards under OSHA, because he 

was never trained by his employer. Therefore, if he had 

been competent, he would have picked it up before it 

was placed and definitely after it was placed, and well 

before [plaintiff] was subjected to the unsafe condition 

of the porta john or the temporary toilet behind a curb.

In fact, based on his own OSHA and construction knowledge and experience, 

Estrin asserted to make the site safer, defendant only had to "[t]urn the toilet 

[ninety] degrees so that the long flat dirt area was where the door opened up to 

get in[gress] or egress from. Then you could just walk down that way and then 

it just flares out from there and there's no problem."

Second, Estrin testified about defendant's safety manual. That document 

stated: 

[T]he program contained in this manual shall be 

established through accomplished -- a series of bullet 

points.

The first is "To protect and promote the health 

and safety of employees by integrating safety into our 

daily operations."

Second, "To minimize employee injuries by 

providing safe and healthful work environments, 

preventing unsafe acts, and controlling exposures to 

health and safety hazards on all jobs."
12 A-1760-19

Third, "To assure all managers and employees 

have received orientation instruction and training in 

health and safety."

. . . .

Five, "To comply with pertinent regulatory 

obligations."

And six, "Assure the safety, health and 

environmental and loss control programs are given the 

proper priority and attention and are achieving the 

required results."

Applying those bullet points, Estrin opined that defendant had not met the 

policies espoused in its own safety manual because it had not: (1) complied with

OSHA standards; (2) trained Carman; or (3) provided a safe and healthful 

environment for subcontractors and employees like plaintiff. Estrin explained 

that the second bullet point affected defendant's employees and all outside 

subcontractors and their employees on the sites defendant controlled as the

general contractor. The fifth bullet point meant federal and/or state OSHA 

standards and regulations and other laws. Thus, Estrin concluded that:

pursuant to the contract between Barrett, the owner of 

the property, and [defendant], and the OSHA 

regulations which established the fact that the general 

contractor [defendant] is 100 percent responsible for 

job site worker safety, the proximate cause of the 

accident is [defendant's] failure to have done what was 

necessary to ensure [plaintiff]'s safety; that he had a 
13 A-1760-19

[jobsite] free of a tripping hazard and going to a 

temporary toilet is part of the [jobsite] as important as 

any other part of the [jobsite], and it be free of a tripping 

hazard, and that was not done. That they had more than 

adequate time to have identified the tripping hazard and 

to have corrected it as they were required to do if in fact 

they had a competent person on the job in the form of 

their superintendent, Mr. Carman. He was not an 

OSHA qualified competent person, and therefore, was 

unable to do what he was required to do pursuant to the 

contract which required them to be 100 percent 

responsible for not only construction means and 

methods, but also the safety of all workers on the job. 

And the OSHA responsibility is exactly the same.

Further, Estrin testified that Mr. John, which had an oral contract with 

defendant, was not liable for plaintiff's injuries because its employees only had 

the responsibilities to service, clean and sanitize the portable toilets on "a 

weekly basis" and "to inform the construction superintendent on a job site if they 

discover anything that they feel is unsafe." Also, Mr. John was not responsible 

for the toilet's improper placement that resulted in a tripping hazard. Estrin 

emphasized: 

Pursuant to [Mr. John's] policy and their 

standards or procedures, very simply that if the 

individual who delivers the toilet is told to place it in a 

location in which that individual feels it is unsafe, he is 

to tell the superintendent on the job not to place it there 

or to move it.

. . . .
14 A-1760-19

If in fact he does not get a positive response from 

the superintendent, he's to call back to the office and 

talk to his superior, and his superior there would then 

go forward and try and work out a reasonable solution

so everybody was happy.

Additionally, Estrin testified that BFC was not liable for plaintiff's 

injuries. He explained, citing OSHA's 29 C.F.R. § 1926.20(b)(2), that BFC was 

responsible for "provid[ing] a safe workplace free of recognized hazards, 

tripping hazard[s], which would cause injury to a worker," and for "mak[ing] 

regular and frequent inspections of the job site by a competent person to 

determine the predictable and existing hazards on the job site."

7 However, there 

was no evidence that BFC or any of its employees had ever worked in the area 

where this particular portable toilet had been located before plaintiff's fall on 

April 1, 2015.

Estrin also testified that plaintiff:

did not in any manner contribute to his accident because 

for example, under the OSHA regulations, he has a 

responsibility to comply with those regulations, if he 

was trained. He was trained in the OSHA regulations, 

but it has to be an issue of unforeseeable worker 

misconduct. There was no misconduct here.

7

 29 C.F.R. § 1926.20(b)(2) states: "Accident prevention responsibilities . . . 

Such programs shall provide for frequent and regular inspections of the job sites, 

materials, and equipment to be made by competent persons designated by the 

employers."
15 A-1760-19

This man went to a temporary toilet because the 

temporary toilets which were safe for him to access and 

egress on the other side of the building where he was 

working were not available to him because the general 

contractor had sequenced a series of concrete pours and 

had not seen fit to move the portable or temporary 

toilets to another location, forcing [plaintiff] to go into 

the building, walk through the building, go down the 

stairs, and go to an area which he had never experienced 

before. And it had a tripping hazard. It had a dumpster, 

so he had to watch out for moving equipment, and to 

see that he wasn't run over or hit by falling objects. So 

that is not something that he would have to do.

He does not have a responsibility to investigate 

or inspect the [jobsite] . . . .

Based on those reasons, Estrin concluded that defendant was solely liable for 

plaintiff's accident and injuries.

During cross-examination, Estrin testified that plaintiff did not trip 

because of the dumpster opening out or blocking his view; plaintiff tripped only 

because of the curb. According to Estrin, plaintiff "opened the door and took 

his one step outward" and "his he[e]l caught that curb."

Nevertheless, Estrin agreed that Mr. John's employees had serviced the 

portable toilet four times before April 1; should have noticed it was in an unsafe 

placement; and should have advised Carman. Although Mr. John was 

responsible under OSHA for the safety of its own employees, there were no 

OSHA safety standards governing portable toilets or their placements, 
16 A-1760-19

recommended placements or servicing. Instead, 29 C.F.R. § 1926.51(d) only 

required that toilets shall be provided for employees, and then addressed the 

types and numbers of toilet facilities needed on a jobsite.

Defense counsel also cross-examined Estrin on OSHA's Multi-Employer 

Citation Policy (MECP), which provided "that any employer on a job site that 

has the ability to abate a hazard or prevent it, has the duty to do so." The MECP, 

according to Estrin, created four categories of employers at a multi-employer 

jobsite: (1) the controlling employer; (2) the creating employer; (3) the 

correcting employer; and (4) the exposing employer. Estrin clarified:

There's the controlling employer. That is the

individual who by function of either contract or 

agreement other than a written contract has overall 

responsibility for all work on the job site to include 

safety.

There is the creating employer who is that 

employer who actually creates the volatile solution 

condition, like the tripping hazards, the unsafe 

condition or if it's a worker's involvement, an unsafe 

act.

There is the correcting employer who is the 

employer who has been tasked with correcting the 

hazard, and on certain big jobs there are firms that are 

hired to construct the safety aspects of all of the work. 

It may be a carpentry firm putting up guardrails and that 

type of thing.
17 A-1760-19

And the final one is the exposing employer. That 

is the employer who actually sends his worker in harm's 

way, is the easy way to put it.

Although Estrin categorized BFC as plaintiff's "direct employer," and 

therefore "directly responsible" for plaintiff's health, safety and well-being, he 

opined that defendant was "solely liable" for plaintiff's accident and injuries. 

Estrin did not believe BFC was "expected to" determine where portable toilets 

were going to be used on the site and whether those were appropriately placed

for its employees.

Estrin further explained that "the multi[-]employer [jobsite] policy by 

OSHA is unenforceable." The MECP was "not a standard and ha[d] no bearing, 

and cannot be enforced against anyone in the industry." He asserted that the 

MECP was rejected by the Occupational Safety and Health Review Commission 

(OSHRC) and the Circuit Courts of Appeals, because "the controlling employer 

. . . may have less than that of the exposing employer in terms of responsibility 

for worker safety." The OSHRC was "the administrative review commission of 

OSHA . . . It is a separate and independent body and has the force of law."

Nevertheless, when defense counsel confronted Estrin with language from 

one of the OSHA's general interpretation letters on the MECP, he agreed that it 

stated:
18 A-1760-19

"A controlling employer," which in this case is 

[defendant], "must exercise reasonable care to prevent 

and detect violations on the site. The extent of the 

measures that a controlling employer must implement 

to satisfy this duty of reasonable care is less than what 

is required of an employer with respect to protecting its

own employees. This means that the controlling 

employer is not normally required to inspect for 

hazards as frequently or to have the same level of 

knowledge of the applicable standards or trade 

expertise as the employer it has hired."

However, Estrin explained that an administrative interpretation letter, 

even one from OSHA, had "no bearing on any enforcement policy" and "no 

regulatory authority." It was not fact specific; for example, it did not discuss 

what would happen if the general contractor had signed a contract agreeing to 

be solely responsible for safety on the project. 

Lastly, Estrin acknowledged that there were other construction standards

that governed portable bathrooms on construction sites, such as the American 

National Standards Institute's (ANSI)

8

standards, trade or professional 

8

 According to its website, ANSI "is a private, non-profit organization that 

administers and coordinates the United States voluntary standards and 

conformity assessment system. Founded in 1918, the Institute works in close 

collaboration with stakeholders from industry and government to identify and 

develop standards- and conformance-based solutions to national and global 

priorities." About ANSI, ANSI, https://www.ansi.org/about/introduction (last 

visited June 9, 2021).
19 A-1760-19

association standards like the Portable Sanitary Association International and 

the American Association of General Contractors, and that there were 

construction standards promulgated by local municipalities. However, none of 

those other standards, like OSHA, provided any guidance on portable toilet 

placement according to Estrin because placement was "up to the general 

contractor and [it] has the ability to make that decision based upon the actual 

conditions that exist on the site at the time [it] places the toilet. . . ." Moreover, 

Estrin posited that portable toilet placement was based on teaching and 

experience.

Chana Goldsmith, plaintiffs' expert in nursing and lifetime care planning, 

testified that plaintiff's future care would cost $462,339. Plaintiffs' vocational

expert, Sonya Mocarski, opined that plaintiff suffered "[a] complete and total 

loss of earning capacity." Andrew Verzilli, plaintiffs' economic expert, testified 

that plaintiff's lost wages and future financial losses was approximately 

$1,936,000.

Steven L. Bisbee testified as the defense expert. He is OSHA certified 

and has over thirty years' experience in the portable toilet rental industry. Bisbee 

testified that Mr. John would have completely relied on "[t]he customer" or 

defendant's construction site contact for directions on portable toilet placement. 
20 A-1760-19

He explained that if the site contact instructed the driver to place a portable toilet 

in a hazardous position, the driver would encourage the contact to relocate the 

toilet. If it was not moved, the driver was trained to submit a formal "relocate 

ticket" to Bisbee and to the customer or general contractor. 

After reviewing the accident site photos, Bisbee opined that there was 

nothing wrong or unsafe with placement of the portable toilet. Portable toilets 

were usually placed "near a dumpster or a construction trailer, up against a 

building, to put them out of the way." He and his drivers had placed "thousands" 

in those "normal" areas.

On cross-examination, Bisbee admitted that he was concerned only with 

two things: whether a portable toilet was placed within the length of a hose so 

that his workers could clean the unit; and whether the unit was placed on a level 

surface so users could walk out onto level ground and avoid tripping. 

Michael Cronin, who investigated and conducted accident reconstruction

investigations, including "curb cases" when individuals tripped either ascending 

or descending a curb, testified as an expert in civil engineering on behalf of the 

defense. He completed a thirty-hour OSHA construction safety course; was 

familiar with OSHA and ANSI standards; and with state building and 

construction codes. He also had reviewed OSHA's general duty clause and 
21 A-1760-19

multi-employer jobsite policy for general contractors and subcontractors 

working on the same site. 

Cronin found no OSHA regulation or standard governing the placement 

of portable toilets on construction sites or near curbs. He noted Estrin also never 

found that defendant had violated any OSHA regulation or standard. Cronin 

stated:

Just because [defendant is] responsible for the job site, 

they're not citeable [sic] unless there's a violation of an 

OSHA standard. And Estrin's report never established 

any violation of any OSHA standard, so therefore 

[defendant] nor anyone else on the job site is citeable 

[sic] under OSHA, because there's simply no violation 

of any OSHA standard.

Additionally, based on his review of the accident site photos, witness 

depositions and expert reports, Cronin opined that the location of the portable 

toilet at issue did "not violate any standard, code, ordinance, industry practice ." 

He noted that a curb greater in height than a half inch from ground level was a 

"tripping hazard" and, based on the photos, "there's just no evidence that there's 

any tripping hazard on this job site." On cross-examination, Cronin agreed that 

the photos showed the curb height was more than half an inch to the parking lot 

and to the dirt of the planting bed.
22 A-1760-19

Nevertheless, Cronin opined that it was a "normal industry standard" that 

workers on a construction site have no "expectation for a perfectly flat surface," 

especially when the area "was a natural ground surface." Cronin pointed out

plaintiff testified "that as he exited the—the portable toilet, he—he looked down 

and he observed the curb condition prior to tripping." Thus, Cronin testified, "if 

[plaintiff] observed it, he should have taken reasonable steps and—and 

descended the curb in a safe manner, and—and in a similar manner to the way 

he ascended the curb just a few minutes before that."

In addition, although Cronin had not examined defendant's prime 

construction contract, he agreed that its terms—defendant "[s]hall supervise and 

direct the work" and "'[t]he contractor shall be solely responsible' . . . for 

providing a safe [jobsite]"—meant defendant was 100 [percent] "responsible for 

providing a safe [jobsite]" for all workers. He acknowledged that his own duties 

had included ensuring that all construction work was performed in accordance 

with contract documents and that Carman was defendant's supervisor and the 

person "in charge of the project."

Following the testimony, counsel and the trial court held a charge 

conference and then discussed the jury charge on the record. In their pretrial 

proposed jury instructions, plaintiffs requested the trial court charge the jury 
23 A-1760-19

with Model Jury Charges (Civil) 5.10G, "Standards of Construction, Custom 

and Usage in Industry or Trade" (approved Mar. 2010) (formerly Model Jury 

Charge 5.10H) (Model Charge 5.10G).

9

 During the charge conference, plaintiffs

also presented supplemental instructions, asking the trial court to instruct the 

jury that OSHA regulations constitute evidence establishing the duty of care 

required for negligence, and the jury should consider violations of those 

regulations as evidence of negligence. 

Defendant's pretrial proposed jury instructions also requested the court

charge the jury with Model Charge 5.10G. However, during the charge 

conference, defendant's counsel stated he did not want any OSHA charge given, 

and instead, he asked the trial court to advise the jury that "a general contractor 

is required to provide a reasonably safe place to work, but is not required to 

eliminate all potential hazards."

9

 Rule 1:8-7(a) provides in civil cases:

[A]s to issues not anticipated prior to trial any party 

may submit written requests that the court instruct the 

jury on the law as set forth in the requests. The requests 

shall make specific reference to the Model Civil Jury 

Charges, if applicable . . . . The court shall, on the 

record, rule on the requests prior to closing arguments 

to the jury.
24 A-1760-19

The trial court noted that defendant's suggested language was "not in the 

Model Charge," and then denied both parties' requests "to be consistent with 

both sides." The court continued:

This is . . . a case of generic negligence against a 

general contractor for placing what's an easily 

understandable tripping hazard.

. . . .

This jury's going to have to decide based upon 

their own visceral sense of fairness whether or not the 

general contractor should have allowed this curb to be 

so close from the front door of the porta[-]potty.

The trial court stated that it would instruct the jury on business invitees 

since the parties wanted that charge, in addition to general negligence, 

foreseeability, and defendant's duty to make the site reasonably safe. 

Nonetheless, the court stated it would include Model Charge 5.10G if the parties 

agreed to each other's language for the charge. Defendant's counsel did not 

agree. On the other hand, plaintiffs' counsel objected to the trial court's refusal

to include language about OSHA violations. The court emphasized:

The Supreme Court says the burden is on the plaintiff 

that it must prove some OSHA violation to get to the 

jury on a negligence cause of action against a 

contractor.
25 A-1760-19

You're transforming that into an obligation of the 

judge to include in the charge language concerning an 

OSHA violation over the defendant's objection.

. . . . 

Think about it this way. In many . . . cases courts 

don't include into the charge every single item of 

evidence educed by all sides in the case and comment 

specifically on that in the jury charge. . . .

. . . .

What you're citing to is a piece of evidence in this 

case. There is -- by the way, note that this case is 

actually pretty weak for the argument. The reason why 

it's weak is that there was nothing explicitly in OSHA 

in regards to the placement of a porta[-]potty. There's 

general language which is obvious. Everything's got to 

be placed in a safe condition. So, this is actually a poor 

case to argue that the Court should tailor a specific 

OSHA charge on a workplace accident.

Your argument would be stronger if OSHA said, 

just for example, there shall be no obstacles within 

[twenty-four] inches of the front door of a porta[-]potty. 

Then you could make -- you could make an argument 

analogous to what we do in auto negligence cases when 

a defendant pleads guilty to some type of traffic 

offense, that type of stuff. But suppose OSHA found 

-- it would be even more analogous if OSHA 

investigated, and found, and cited an OSHA violation 

under these circumstances. Then it really is analogous 

to the Model Charge.

. . . .
26 A-1760-19

Secondly, again, the OSHA violations here are 

more generic. They weren't specific. 

Ultimately, the trial court did not include Model Charge 5.10G or make 

any reference to the OSHA standards or regulations in its final charge. During 

deliberations, the jury asked five questions related to damages; none were

related to liability, negligence, or OSHA issues.

The jury found: (1) defendant was 100 percent negligent; (2) Mr. John 

was not negligent; (3) plaintiff was not comparatively negligent; (3) plaintiff 

incurred past medical expenses of $101,980.79, and past lost earnings of 

$220,000; (4) plaintiff will incur future medical expenses of $111,720, and has 

a future lost earning capacity of $660,000; (5) plaintiff suffered and will suffer 

past, present, and future pain and suffering, embarrassment, humiliation, 

disfigurement, and loss of enjoyment of life, totaling $625,000; and (6) 

plaintiff's wife incurred per quod damages of $625,000.

Following the jury's verdict, defendant's counsel moved for a new trial,

arguing the trial court erred by not striking or limiting Estrin's testimony because 

it was a net opinion, and because he testified about contracts and safety language 

that were beyond his expertise. Defendant further contended that Estrin never 

cited to any specific OSHA regulation, standard, or duty that defendant violated 

even though he opined defendant was one hundred percent liable for plaintiff's 
27 A-1760-19

fall. Defense counsel further argued that, after refusing to strike or limit Estrin's 

testimony, the trial court erred by not instructing the jury on OSHA violations 

or telling them that a violation of OSHA "doesn't necessarily mean anything."

10

In denying defendant's motion, the trial court initially noted that defendant 

had argued expressly against mentioning OSHA in the liability charge. The 

court next discussed the scope of Estrin's testimony: 

So, you may be right, that I was a bit overindulgent in 

regard to allowing the expert to testify about what the 

contract said between your client and their obligations 

to provide a safe work site.

But, the jury is perfectly capable, independent of 

that, of determining whether or not the placement of 

this porta[-]potty was done in a negligent manner, 

without regard to whether the expert said that that

implicated the contractual provision to provide a safe 

workplace, et cetera, et cetera.

The court highlighted:

As I indicated, the case was very -- was very well 

tried. I thought from the beginning that actually the 

plaintiff had the better case on liability for a very 

simple reason. It had nothing to do with OSHA 

violations, or experts, or anything like that. Merely 

looking at a picture of the port-o-potty, and seeing 

where -- and it was a tripping hazard. This was a piece

of wood or something sticking out, I don't know, about 

10

 Defense counsel also argued that the jury's allocating 100 percent liability to 

defendant was against the weight of the evidence.
28 A-1760-19

[six] inches, [eight] inches, whatever it was. It was a 

tripping hazard. People can trip on it.

[Plaintiff] should have been looking where he 

was going. And as I indicated a few minutes ago, had 

this been a bench trial, I probably would have found 

[fifteen], [twenty], [twenty-five] percentage points of 

comparative negligence.

But I certainly, for what it's worth, I agree with 

the jury's determination that [defendant], which was the 

general contractor, and had overall responsibility for 

the safety of the workers. And the port-o-potty could 

have [been] turned around 180 degrees so that there was 

no tripping hazard.

On December 6, 2019, the trial court entered an order denying defendant's 

motion for a new trial and entered a memorializing order. This appeal followed.

On appeal, defendant raises two points: (1) the trial court's failure to 

instruct the jury on the significance of OSHA regulations led to an unjust result; 

and (2) the jury's apportionment of one hundred percent of the liability for 

plaintiff's accident to defendant was against the weight of the evidence and 

warrants a new trial.

II.

"It is fundamental that '[a]ppropriate and proper charges to a jury are 

essential for a fair trial.'" Prioleau v. Ky. Fried Chicken, Inc., 223 N.J. 245, 256 

(2015) (alteration in original) (quoting Velazquez ex rel. Velazquez v. Portadin, 
29 A-1760-19

163 N.J. 677, 688 (2000)). The jury charge is "a road map that explains the 

applicable legal principles, outlines the jury's function, and spells out 'how the 

jury should apply the legal principles charged to the facts of the case at hand.'" 

Toto v. Ensuar, 196 N.J. 134, 144 (2008) (quoting Viscik v. Fowler Equip. Co., 

173 N.J. 1, 18 (2002)). It therefore "should set forth in clear understandable 

language the law that applies to the issues in the case." Ibid. In a civil case, we 

"uphold even erroneous jury instructions when those instructions are incapable 

of producing an unjust result or prejudicing substantial rights." Fisch v. 

Bellshot, 135 N.J. 374, 392 (1994). Cf. Walker v. Costco Wholesale Warehouse, 

445 N.J. Super. 111, 120 (App. Div. 2016) (stating failure to give jury charge 

on mode-of-operation was "clearly capable of affecting the verdict on liability").

Defendant argues that the trial court's failure to instruct the jury on the 

significance of the OSHA regulations as set forth in Model Jury Charge 5.10G, 

led to an unjust result. That charge states:

Some evidence has been produced in this case as 

to the standard of construction in the industry. Such 

evidence may be considered by you in determining 

whether the defendant’s negligence has been 

established. If you find that the defendant did not 

comply with that standard, you may find the defendant 

to have been negligent. However, the general custom 

of the industry, although evidential as to what is the 

reasonable standard in such industry, does not 

conclusively establish the care the defendant was 
30 A-1760-19

required to exercise in the performance of its 

operations. Compliance with an industry standard is 

not necessarily conclusive as to the issue of negligence, 

and does not, of itself, absolve the defendant from 

liability. The defendant must still exercise reasonable 

care under all the circumstances, and if you find that 

the prevailing practices in the industry do not comply 

with that standard, the defendant may be found 

negligent by you notwithstanding compliance with the 

custom or standard of the industry.

[Model Charge 5.10G.]

And in a footnote, the charge declares:

Where it is alleged that a contractor violated 

[OSHA] regulations, such violation is treated similarly 

to a violation of an industry standard. See Costa v. 

Gaccione, 408 N.J. Super. 362, 372 (App. Div. 2009) 

(citing Alloway v. Bradlees, Inc., 157 N.J. 221, 236 

(1999) ("violation of OSHA regulations without more 

does not constitute the basis for an independent or 

direct tort remedy.")[).] Thus, as with industry 

standards, OSHA regulations are pertinent in 

determining the nature and extent of any duty of care, 

but compliance with OSHA does not preclude a finding 

of negligence and, conversely, non-compliance with 

OSHA does not preclude a finding that there was no 

negligence. Id. at 237.

[Model Charge 5.10G n.2.]

Plaintiffs respond that defendant invited the error when it expressly 

advocated against the court charging the jury with Model Charge 5.10G on the 

OSHA regulations and then failed to object to the absence of that instruction. 
31 A-1760-19

They claim the trial court correctly charged the jury on the general principles of 

negligence.

In reply, defendant asserts the court had an independent duty to charge the 

jury with Model Charge 5.10G, or in the alternative, defendant claims that, even 

if it had invited or acquiesced in an erroneous jury charge, we are required to 

reverse because the charge was clearly capable of producing an unjust result

under the plain error standard. We disagree.

"[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) (citing Alloway, 157 N.J. at 230). To prevail in a negligence case, a 

plaintiff must demonstrate that (1) the defendant owed the plaintiff a duty of 

care; (2) the defendant breached that duty; (3) the defendant's breach of its duty 

actually and proximately caused the plaintiff's injury; and (4) the plaintiff 

sustained damages. Fernandes v. DAR Dev. Corp., 222 N.J. 390, 403-04 (2015). 

Whether a defendant owes a plaintiff a duty and the scope of that duty are legal 

questions. Shields v. Ramslee Motors, 240 N.J. 479, 487-88 (2020).

Determining whether a duty exists "involves identifying, weighing, and 

balancing several factors—the relationship of the parties, the nature of the 
32 A-1760-19

attendant risk, the opportunity and ability to exercise care, and the public interest 

in the proposed solution." Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439 

(1993). The foreseeability of an injury "is 'crucial' in determining whether a 

duty should be imposed." J.S. v. R.T.H., 155 N.J. 330, 338 (1998) (quoting 

Carter Lincoln-Mercury, Inc. v. EMAR Grp., Inc., 135 N.J. 182, 194 (1994)).

"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). Foreseeability "is the major consideration for imposing a tort duty, 

[but] additional factors should [also] be considered, such as 'the relationship of 

the parties, the nature of the attendant risk, the opportunity and ability to 

exercise care and the public interest . . . .'" Slack, 327 N.J. Super. at 191 (quoting 

Alloway, 157 N.J. at 230).

An OSHA violation may be considered with those factors in determining 

the existence and scope of duty but does not alone create a "tort duty of care." 

Costa v. Gaccione, 408 N.J. Super. 362, 372-73 (App. Div. 2009); see also

Tarabokia v. Structure Tone, 429 N.J. Super. 103, 120 (App. Div. 2012). 

"Whether a [d]uty exists is ultimately a question of fairness." Goldberg v. Hous. 
33 A-1760-19

Auth. of Newark, 38 N.J. 578, 583 (1962). See also Olivo v. Owens-Illinois, 

Inc., 186 N.J. 394, 401 (2006). 

Here, as plaintiffs correctly claim, defendant expressly argued during the 

charge conference against the trial court's instructing the jury with Model 

Charge 5.10G and, in fact, against even its mentioning OSHA. "The doctrine of 

invited error operates to bar a disappointed litigant from arguing on appeal that 

an adverse decision below was the product of error, when that party urged the 

lower court to adopt the proposition now alleged to be error." N.J. Div. of Youth 

& Fam. Servs. v. M.C. III, 201 N.J. 328, 340 (2010) (quoting Brett v. Great Am. 

Recreation, Inc., 144 N.J. 479, 503 (1996)).

"[A] defendant cannot beseech and request the trial 

court to take a certain course of action, and upon 

adoption by the court, take his[, hers or its] chance on 

the outcome of the trial, and if unfavorable, then 

condemn the very procedure he[, she or it] sought . . . 

claiming it to be error and prejudicial."

[Ibid. (quoting State v. Jenkins, 178 N.J. 347, 358 

(2004) (citation omitted)). See Titus v. Lindberg, 49 

N.J. 66, 78 (1967) (finding Board of Education was 

barred from asserting error in jury charge it requested).]

Nevertheless, a court "would not automatically apply the doctrine [of invited 

error] if it were to 'cause a fundamental miscarriage of justice.'" M.C. III, 201 

N.J. at 342 (quoting Brett, 144 N.J. at 508).
34 A-1760-19

Here, we discern no fundamental injustice that would warrant relaxing 

the invited error doctrine since defendant's counsel ostensibly made a strategic 

decision when he changed his plan and decided to advocate against the trial 

court's charging the jury on OSHA evidence or with Model Charge 5.10G. 

Nevertheless, defendant correctly asserts, "the ultimate responsibility rests with 

the [trial] court to instruct the jury regarding the appropriate law that is 

applicable to the evidence." Das v. Thani, 171 N.J. 518, 530 (2002). 

Consequently, we will evaluate an invited error under "the plain error standard." 

Willner v. Vertical Reality, Inc., 235 N.J. 65, 79 (2018) (quoting State v. 

Wakefield, 190 N.J. 397, 473 (2007)). 

Rule 2:10-2 defines "plain error" as error that is "clearly capable of 

producing an unjust result." It states:

Any error or omission shall be disregarded by the 

appellate court unless it is of such a nature as to have 

been clearly capable of producing an unjust result, but 

the appellate court may, in the interests of justice, 

notice plain error not brought to the attention of the trial 

or appellate court.

[R. 2:10-2.] 

With regard to a jury charge, "plain error is 'legal impropriety in the 

charge prejudicially affecting the substantial rights of the [party] and 

sufficiently grievous to justify notice by the reviewing court and to convince the 
35 A-1760-19

court that of itself the error possessed a clear capacity to bring about an unjust 

result.'" Mason v. Sportsman's Pub, 305 N.J. Super. 482, 495 (App. Div. 1997) 

(quoting State v. Hock, 54 N.J. 526, 538 (1969)).

In the matter under review, the initial disputes for the jury to resolve were

the nature of the care defendant was required to provide for subcontractors on 

its jobsite and then whether it violated its duty of care.11 There was extensive

testimony on OSHA standards and regulations. "OSHA regulations are pertinent 

in determining the nature and extent of any duty of care." Alloway, 157 N.J. at 

236. See Kane v. Hartz Mountain Indus., Inc., 278 N.J. Super. 129, 144 (App. 

Div. 1994) (finding "error in the trial judge's failure to provide adequate 

guidance to the jury regarding the proper interpretation of the OSHA 

regulations"), aff'd o.b., 143 N.J. 141 (1996).

The purpose of OSHA, 29 U.S.C. §§ 651 to 678, is "to provide for the 

general welfare, 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 . . . ." 29 U.S.C. § 651(b). It requires "employers to comply with 

specific OSHA standards and also imposes a general duty on employers to 

11

 We note the nature of the duty is different from the question of whether one 

owes a duty in the first place, which is a question of law to be decided by the 

trial judge. Carvalho v. Toll Bros. & Devs., 143 N.J. 565, 572 (1996).
36 A-1760-19

provide a workplace 'free from recognized hazards that are causing or are likely 

to cause death or serious physical harm.'" Gonzalez v. Ideal Tile Importing Co., 

371 N.J. Super. 349, 359-60 (App. Div. 2004) (quoting 29 U.S.C. § 654(a)).

Based upon our careful review of the record, we conclude that, the 

omission of Model Charge 5.10G and OSHA from the trial court's instructions 

was not clearly capable of producing an unjust result here. Estrin did not point 

to any specific OSHA regulation governing the toilet's placement, and Cronin 

agreed that there had been no violation of any OSHA standard. In fact, no 

violation of any specific OSHA provision on portable toilets was ever presented 

to the jury. Instead, the evidence referred to general OSHA standards and 

regulations offering the same level of care as the general theory of negligence.

We "must read the charge as a whole." Sons of Thunder, Inc. v. Borden, 

Inc., 148 N.J. 396, 418 (1997); see also Estate of Kotsovska ex rel. Kotsovska 

v. Liebman, 221 N.J. 568, 592 (2015) (stating that a court presented with a 

contested jury charge must evaluate the entirety of the charge and not focus on 

individual, isolated errors). "[T]he prejudicial effect of an omitted instruction 

must be evaluated in light of the totality of the circumstances including all of 

the instructions to the jury, [and] the arguments of counsel." State v. Townsend, 

186 N.J. 473, 499 (2006) (second alteration in original) (quoting State v. 
37 A-1760-19

Marshall, 123 N.J. 1, 145 (1991)); see also Piech v. Layendecker, 456 N.J. 

Super. 367, 377 (App. Div. 2018) ("We must consider . . . whether counsel 

voiced any contemporaneous objection, . . . and the likelihood that the flaw was 

so serious that it was likely to have produced an unfair outcome."). 

Although defendant's argument is subject to the invited error doctrine, in 

the interests of justice, we review the jury instructions for plain error. Here, we 

are satisfied that the trial court clearly explained the elements of negligence and 

plaintiffs' obligation to prove negligence by a preponderance of the credible 

evidence.

Moreover, a violation of the OSHA standards and regulations is not 

dispositive of a general contractor's liability. Alloway, 157 N.J. at 234. 

"Compliance with an OSHA regulation does not in and of itself preclude a 

finding of negligence," and, for the same reason, the violation of an OSHA 

regulation "does not ipso facto constitute a basis for assigning negligence as a 

matter of law." Kane, 278 N.J. Super. at 142, 144. Thus, while the existence of 

an OSHA violation may be some evidence that defendant did not follow the 

regulations, it is not conclusive evidence that defendant was liable as a general 

contractor or property occupier.
38 A-1760-19

More importantly, there was substantial, credible evidence presented that 

Carman's duty was to supervise the entire jobsite, including toilet placement, 

and defendant's duties were specifically enumerated in its prime construction 

contract, which made defendant "solely responsible for, and ha[ving] control 

over, construction means, methods, techniques, sequences and procedures and 

for coordinating all portions of the Work under the Contract." Cronin, 

defendant's expert, even agreed with Estrin that Carman was in charge of the 

project, as confirmed in defendant's answers to interrogatories certified by its 

president, and the terms in the prime construction contract meant defendant had 

an absolute duty and was one hundred percent responsible for providing a safe 

jobsite for all workers.

In light of this compelling evidence, the jury had a strong, independent 

basis on which to find defendant's negligence. The jury clearly rejected the 

testimony presented by the defense witnesses, and instead found more credible 

plaintiffs and their witnesses. Therefore, we conclude the absence of any charge 

on OSHA standards and regulations, including Model Charge 5.10G, was

irrelevant to the jury's liability verdict and its findings on the care defendant was 

required to provide for subcontractors and employees on its jobsite, relative to 

defendant's violation of that care. Applying these standards, we conclude the 
39 A-1760-19

trial court's decision not to charge the jury on OSHA standards and regulations, 

as in Model Charge 5.10G, was not "clearly capable of producing an unjust 

result" constituting plain error under Rule 2:10-2 and does not warrant reversal.

III.

Defendant next argues that the trial court erred by failing to strike or limit 

the scope of Estrin's testimony, and the court's alleged improper comment 

further underscored the need to charge the jury about OSHA standards and 

regulations. According to defendant, the trial court's failure to give a proper 

jury instruction on OSHA regulations led to an unjust result. 12

In April 2019, defendant moved to bar Estrin's report and testimony as a 

net opinion, arguing that he had cited no specific OSHA standard for the 

placement of portable toilets and had failed to include any measurements of the 

scene. During oral argument, the trial court asked defendant's counsel why he 

believed OSHA regulations were not applicable: 

12

 Defendant also claims in various footnotes throughout its brief and reply brief 

that many points in Estrin's testimony were "legally incorrect" or "patently 

false." These allegations of error are waived because defendant raised them in 

footnotes and not under point headings. Almog v. Isr. Travel Advisory Serv., 

Inc., 298 N.J. Super. 145, 155 (App. Div. 1997) (holding legal issues raised in 

footnotes and not under appropriate point headings required by Rule 2:6-2(a)(5) 

will not be considered on appeal).
40 A-1760-19

THE COURT: . . . but what's your complaint 

about the plaintiff's expert . . . citing the OSHA 

standards even if only as to -- as to the general 

proposition, as opposed to whether or not there should 

be a curb three feet from the front door of a porta[-]

potty?

[DEFENDANT'S COUNSEL]: Well, because 

now it looks like we violated two different standards. 

If you just say, well, he's just going to come in and 

blather on about negligence or failure to comply with 

OSHA, that doesn't matter, because what matters is the 

standard due to an invitee on the premises. Which 

plaintiff is. He's an invitee on the premises. That's the 

standard. Not the OSHA standard. So, to the extent 

that you allow an expert to come in and say, oh, OSHA 

requires him to do this and OSHA requires him to do 

that, and then you come along later and go, oh yeah, 

OSHA requires him to do this and OSHA requires him 

to do that; oh, and by the way, the law -- the -- you 

know, the general law is that a business owner owes this 

duty to an invitee, so now the defense has a -- has the 

burden of fighting two different fronts and two different 

theories of liability. There shouldn't be two different 

theories of liability. There should be one theory of 

liability which can be supported by alleged OSHA 

violations, but the OSHA violations in and of 

themselves do not establish the standard.

. . . .

THE COURT: . . . [T]hat would be an issue that 

will be taken up at the charge conference, in terms, of 

exactly what the charge is. But I don't see there being 

any problem with an expert -- in fact, they do it all the 

time -- citing to various standards -- OSHA is one of 

the more predominant ones -- in regard to the basis of 

their opinion. . . .
41 A-1760-19

Thereafter, the trial court denied the motion, with the proviso that 

defendant could renew the objection at trial. However, the record shows that

during Estrin's testimony, defense counsel raised no specific objections to the 

expert's comments about the scope of OSHA standards and regulations, 

defendant's prime construction contract, or OSHA's MECP.

After Estrin testified, defendant renewed its motion to strike his 

testimony, arguing that the applicable standard of liability was general 

negligence, because the matter involved a contractor or occupier of property. 

Defense counsel contended that Estrin's testimony on OSHA's general safety 

standards confused the jury, thereby allowing the jury to find defendant 

potentially culpable under two different liability standards: general negligence 

and OSHA.

The trial court again denied the motion and explained:

To me I don't see it as a basis for disqualifying 

Estrin. He essentially used these standards as a basis 

for arguing that there was negligence in maintaining 

this particular area due to the presence of the curb.

The more difficult question is whether or not the 

charge should include explicit to [sic] OSHA violations 

particularly in this case where there's nothing narrowly 

tailored to an OSHA violation.

. . . .
42 A-1760-19

So we'll deal with that at the charge conference, 

but I'm denying the motion to strike the entirety of 

Estrin's testimony.

A trial court's evidentiary rulings, including those regarding expert 

testimony, are "entitled to deference absent a showing of an abuse of discretion." 

State v. Brown, 170 N.J. 138, 147 (2001) (quoting State v. Marrero, 148 N.J. 

469, 484 (1997)); see also Townsend v. Pierre, 221 N.J. 36, 53 (2015); Bender 

v. Adelson, 184 N.J. 411, 428 (2006). "[An] abuse of discretion only arises on

demonstration of 'manifest error or injustice,'" Hisenaj v. Kuehner, 194 N.J. 6, 

20 (2008) (quoting State v. Torres, 183 N.J. 554, 572 (2005)), and occurs when 

the trial judge's "decision is 'made without a rational explanation, inexplicably 

departed from established policies, or rested on an impermissible basis.'" Milne 

v. Goldenberg, 428 N.J. Super. 184, 197 (App. Div. 2012) (quoting Flagg v. 

Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002)). We discern no abuse of 

discretion here.

Generally, the admission of expert testimony is governed by Rule 702, 

which provides:

If scientific, technical, or other specialized knowledge 

will assist the trier of fact to understand the evidence or 

to determine a fact in issue, a witness qualified as an 

expert by knowledge, skill, experience, training, or 
43 A-1760-19

education may testify thereto in the form of an opinion 

or otherwise.

Admissibility turns on three basic requirements:

(1) the intended testimony must concern a subject 

matter that is beyond the ken of the average juror; (2) 

the field testified to must be at a state of the art such 

that an expert's testimony could be sufficiently reliable; 

and (3) the witness must have sufficient expertise to 

offer the intended testimony.

[Agha v. Feiner, 198 N.J. 50, 62 (2009) (quoting State 

v. Kelly, 97 N.J. 178, 208 (1984)).]

Rule 703 addresses the foundation for expert testimony. The rule 

mandates that expert opinion be grounded in "facts or data derived from (1) the 

expert's personal observations, or (2) evidence admitted at the trial, or (3) data 

relied upon by the expert which is not necessarily relied upon by experts in 

forming opinions on the same subject." Polzo v. Cnty. of Essex, 196 N.J. 569, 

583 (2008) (quoting Townsend, 186 N.J. at 494).

The net opinion rule is a "corollary of [Rule 703] . . . which forbids the 

admission into evidence of an expert's conclusions that are not supported by 

factual evidence or other dat[a]." Ibid. (alteration in original). The rule requires 

that an expert "'give the why and wherefore' that supports the opinion, 'rather 

than a mere conclusion.'" Borough of Saddle River v. 66. E. Allendale, LLC, 

216 N.J. 115, 144 (2013) (quoting Pomerantz Paper Corp. v. New Cmty. Corp., 
44 A-1760-19

207 N.J. 344, 372 (2011)); see also Buckelew v. Grossbard, 87 N.J. 512, 524 

(1981) (explaining that "an expert's bare conclusion[], unsupported by factual 

evidence, is inadmissible").

The net opinion rule does not mandate an expert organize or support an 

opinion in a particular manner that opposing counsel deems preferable. Pierre, 

221 N.J. at 54. An expert's proposed testimony should not be excluded merely 

"because it fails to account for some particular condition or fact which the 

adversary considers relevant." Creanga v. Jardal, 185 N.J. 345, 360 (2005) 

(quoting State v. Freeman, 223 N.J. Super. 92, 116 (App. Div. 1988)).

The net opinion rule, however, mandates that experts "be able to identify 

the factual bases for their conclusions, explain their methodology, and 

demonstrate that both the factual bases and the methodology are scientifically 

reliable." Landrigan v. Celotex Corp., 127 N.J. 404, 417 (1992). An expert's 

conclusion "is excluded if it is based merely on unfounded speculation and 

unquantified possibilities." Grzanka v. Pfeifer, 301 N.J. Super. 563, 580 (App. 

Div. 1997) (quoting Vuocolo v. Diamond Shamrock Chem. Co., 240 N.J. Super. 

289, 300 (App. Div. 1990)). By definition, unsubstantiated expert testimony 

cannot provide to the factfinder the benefit that Rule 702 envisions: a qualified 

specialist's reliable analysis of an issue "beyond the ken of the average juror." 
45 A-1760-19

Polzo, 196 N.J. at 582; see N.J.R.E. 702. Given the weight that a jury may 

accord to expert testimony, a trial court must ensure than an expert is not 

permitted to express speculative opinions or personal views that are unfounded 

in the record. Pierre, 221 N.J. at 55.

Applying these standards, we conclude the trial court did not abuse its 

discretion by refusing to strike or limit Estrin's testimony. The entirety of 

Estrin's opinions and his testimony were contained in his pretrial expert report. 

Nonetheless, defendant asserts that the following statements by Estrin "were 

legally incorrect, improper, and had a clear impact on the jury" and "exceeded 

the permissible scope of expert testimony": (1) characterizing the OSHRC as 

having the force of law; (2) calling the MECP unenforceable and suggesting that 

courts had rejected the argument that a controlling employer or general 

contractor has less responsibility to protect workers than an exposing employer; 

(3) declaring that the OSHA regulations rendered defendant 100 percent

responsible for plaintiff's accident; and (4) stating that plaintiff was not 

responsible for his fall unless he had engaged in misconduct.

We reject defendant's arguments. The record reveals that defense counsel 

never objected to Estrin's statements. In any event, defense counsel extensively 

cross-examined Estrin. And in fact, Estrin made the first two challenged 
46 A-1760-19

statements during his cross-examination. Therefore, we discern no error or 

abuse of discretion by the trial court in denying defendant's motion to strike or 

limit the scope of Estrin's testimony.

IV.

Finally, defendant contends the trial court erred by not granting its motion 

for a new trial as the jury's finding defendant 100 percent liable for plaintiff's 

fall and injuries was against the weight of the evidence.13 We disagree.

A trial judge shall not reverse a jury verdict as against the weight of the 

evidence unless, "having given due regard to the opportunity of the jury to pass 

upon the credibility of the witnesses, it clearly and convincingly appears that 

there was a miscarriage of justice under the law." R. 4:49-1(a).

A "miscarriage of justice" has been described as 

a "pervading sense of 'wrongness' needed to justify [an] 

appellate or trial judge undoing of a jury verdict . . . 

[which] can arise . . . from manifest lack of inherently 

credible evidence to support the finding, obvious 

overlooking or undervaluation of crucial evidence, [or] 

a clearly unjust result. . . ."

[Risko v. Thompson Muller Auto. Grp., 206 N.J. 506, 

521-22 (2011) (alterations in original) (quoting 

13

 In its new trial motion, defendant also argued the trial court erred by not 

striking Estrin's testimony and by not instructing the jury on OSHA regulations. 

However, on appeal, defendant only challenges the jury's liability apportionment 

as against the weight of the evidence.
47 A-1760-19

Lindenmuth v. Holden, 296 N.J. Super. 42, 48 (App. 

Div. 1996)).] 

We look to the same standard as the trial court when reviewing the denial 

of a motion for new trial. R. 2:10-1; Pellicer ex rel. Pellicer v. St. Barnabas 

Hosp., 200 N.J. 22, 52 (2009). That is, as an appellate court, we must make our 

own determination and shall not reverse a jury verdict as against the weight of 

the evidence "unless it clearly appears that there was a miscarriage of justice 

under the law." R. 2:10-1. The only exception from the trial court's review is 

that we must defer to the trial judge's views on "witness credibility,"

"demeanor," "feel of the case," and other intangible aspects that are not 

transmitted by the written record. Dolson v. Anastasia, 55 N.J. 2, 6 (1969). The 

trial judge's decision, however, is not entitled to any special deference when "it 

rests upon a determination as to worth, plausibility, consistency or other tangible 

considerations apparent from the face of the record." Id. at 7.

After the jury's verdict, defendant's counsel moved for a new trial, arguing 

the jury's findings that defendant was 100 percent liable and that Mr. John was 

not liable were against the weight of the evidence. 

As to the jury's liability percentages, the trial court noted:

I agree with you; I was surprised that they didn't find 

any comparative. It's fairly common for a jury in these 
48 A-1760-19

scenarios to find some comparative on the part of the 

plaintiff. 

And because plaintiff's expert did blame the 

porta[-]potty company -- of course, the plaintiff settled 

with the porta[-]potty company, so the shift -- then the 

shift always occurs. And I don't say that pejoratively, 

that's the way litigation is played. So I was, I would 

say, a bit surprised it was a hundred zero.

But the standard is very -- obviously I'm not here 

to second-guess the jury. It was -- it was certainly 

within reason for the jury to determine that the porta[-] 

potty company was not responsible for making sure that 

there wouldn't be a tripping hazard, [eighteen] feet --

[eighteen] inches, or whatever it was, from the front 

door of the porta[-]potty.

As far as comparative goes, yeah, the plaintiff 

should have been looking where he was walking, and 

had it been a bench trial, I certainly would have 

attributed some percentages of comparative on the 

plaintiff. But the jury's refusal to do so was within the 

range of reasonability. That's basically where you end 

up.

I agree with you on the merits. In terms of the 

-- those percentages, but it wasn't my call, it was the 

jury's call.

The trial court stated that it "thought from the beginning that actually the 

plaintiff had the better case on liability for a very simple reason. It had nothing 

to do with OSHA violations, or experts, or anything like that." By merely 

looking at the photos, the jury could see "it was a tripping hazard," so the court 
49 A-1760-19

"certainly . . . agree[d] with the jury's determination that [defendant], which was 

the general contractor, . . . had overall responsibility for the safety of the 

workers. And the port-o-potty could have [been] turned around 180 [sic] 

degrees so that there was no tripping hazard."

Defendant specifically argues that the jury's apportionment of fault was 

"directly contrary" to Estrin's testimony and the undisputed evidence. That is, 

Estrin testified that Mr. John was negligent both in the placement of the portable 

toilet and in subsequent visits to the site when its representatives or employees 

did not advise Carman of a potentially hazardous condition. Moreover, it was 

uncontroverted that plaintiff had a clear view of the curb area in front of the 

portable toilet and was able to safely navigate over the curb when entering the 

toilet. Defendant's arguments are devoid of merit.

We note the record adequately supports the jury's verdict. See R. 2:10-1. 

Estrin testified that Mr. John's employees had weekly responsibilities only to 

clean the toilets and to inform Carman, defendant's onsite supervisor, if they 

discovered anything unsafe. The toilet already had been in place four weeks 

prior to plaintiff's fall, so the jury could have determined that Carman had plenty 

of time to notice and correct its hazardous placement. According to defendant's 

president, Carman was defendant's supervisor and the person responsible for the 
50 A-1760-19

whole jobsite, including directing placement of the portable toilets. Also, Estrin 

and defendant's expert, Cronin, agreed that the terms of defendant's prime 

contract rendered it 100 percent and solely liable for providing a safe jobsite for 

all workers. 

Additionally, Estrin testified that plaintiff had no responsibility to 

investigate or inspect the placement of a portable toilet, especially in an area 

that he had never visited before the day of his fall. Indeed, there was no evidence 

presented that BFC or any of its employees had ever worked in the area where 

the toilet was located before plaintiff's fall.

Furthermore, the jury could have considered that plaintiff was not 

contributorily negligent due to defendant's sole responsibility for placement of 

the dumpster and the wood step in the parking lot near the toilet. As Estrin 

testified, because of the dumpster, plaintiff had to be on the lookout for moving 

construction vehicles and equipment near the toilet. And, the jury evaluated and 

credited plaintiff's testimony that, when he exited the toilet, plaintiff was 

cognizant of the front-end loader he observed in the parking lot before entering 

the portable toilet.

As we discern no clear miscarriage of justice under the law, we affirm the 

jury verdict and the denial of defendant's motion for a new trial.
51 A-1760-19

Affirmed.