O'Connell v. John
| Decision Date | 25 June 2021 |
| Docket Number | A-1760-19 |
| Parties | ALAN O'CONNELL and LINDA O'CONNELL, his wife, Plaintiffs-Respondents, v. MR. JOHN, Defendant and NETWORK CONSTRUCTION COMPANY, INC., Defendant-Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 26, 2021.
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, 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).
Before Whipple, Rose and Firko, Judges.
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.
We discern the following facts and procedural history from the record on appeal. On April 1, 2015, plaintiff Alan O'Connell[1] 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 at the jobsite and had been using temporary portable toilets[2] located 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 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 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 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:
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:
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 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 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:
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