Meder v. Resorts Intern. Hotel, Inc.

• Decision Date: 17 November 1989
• Citation: 240 N.J.Super. 470,573 A.2d 922
• Parties: Deborah A. MEDER, as Administratrix Ad Prosequendum for the heirs of Christopher J. Meder, Deceased; as Administratrix of the Estate of Christopher J. Meder, Deceased and Individually, Plaintiff-Appellant, v. RESORTS INTERNATIONAL HOTEL, INC., Defendant-Respondent, and Meehan & Weinmann Inc., L. Feriozzi Concrete Company, Meehan & Weinmann Inc. and L. Feriozzi Concrete Company, Co-venturers, Norman Parker, H.J. Homan Crane Company, Henry Stewart Co., Atlantic Industrial Hardware Co., Wall Industrial Co., Inc., Wall Industries, Inc., John Doe, Robert Doe, Charles Doe and Acrow Corporation of America, jointly and severally and/or in the alternative, Defendants, and RESORTS INTERNATIONAL HOTEL, INC., Defendant-Third-Party Plaintiff, v. CLAREMONT INTERIOR CONTRACTORS, INC., Third-Party Defendant.
• Court: New Jersey Superior Court — Appellate Division

Page 470

240 N.J.Super. 470

573 A.2d 922

Deborah A. MEDER, as Administratrix Ad Prosequendum for the heirs of Christopher J. Meder, Deceased; as Administratrix of the Estate of Christopher J. Meder, Deceased and Individually, Plaintiff-Appellant, v. RESORTS INTERNATIONAL HOTEL, INC., Defendant-Respondent, and Meehan & Weinmann Inc., L. Feriozzi Concrete Company, Meehan

& Weinmann Inc. and L. Feriozzi Concrete Company,

Co-venturers, Norman Parker, H.J. Homan Crane Company, Henry

Stewart Co., Atlantic Industrial Hardware Co., Wall

Industrial Co., Inc., Wall Industries, Inc., John Doe,

Robert Doe, Charles Doe and Acrow Corporation of America, jointly and severally and/or in the alternative, Defendants, and RESORTS INTERNATIONAL HOTEL, INC., Defendant-Third-Party Plaintiff, v. CLAREMONT INTERIOR CONTRACTORS, INC., Third-Party Defendant.

Superior Court of New Jersey,

Appellate Division.

Argued Sept. 27, 1989.

Decided Nov. 17, 1989.

Salvatore A. Alessi, for Deborah A. Meder (A-2577-88T5) (Alessi & Abbott, Barrington, attorneys).

Brian S. Thomas, for Resorts Intern. Hotel, Inc. (A-2577-88T5 and A-2969-88T5) (Megargee, Youngblood, Franklin & Corcoran, Pleasantville, attorneys).

Anthony D. Buonadonna, for Claremont Interior Contractors Inc. (A-2969-88T5) (Buonadonna & Benson, attorneys; Alan G. Giebner, Vineland, on the brief).

Before Judges GAULKIN, DREIER and SCALERA.

The opinion of the court was delivered by

GAULKIN, P.J.A.D.

In these appeals, which we now consolidate for disposition, plaintiff Deborah A. Meder challenges the dismissal of her action at the conclusion of all of the proofs (A-2577-88T5), and third-party defendant Claremont Interior Contractors, Inc. (Claremont) challenges a pretrial order denying its motion to dismiss the third-party complaint of defendant Resorts International Hotel, Inc. (Resorts) for indemnification (A-2969-88T5).

The litigation arose out of the death of plaintiff's husband Christopher J. Meder (Meder) while employed by Claremont in the construction of a high-rise hotel building for Resorts. Resorts had contracted with Claremont to stock the building with metal, metal studs and sheet rock. Meder was employed as a signalman by Claremont, assigned to receive the materials as they were delivered to each floor by a crane. While Meder was so engaged on the 13th floor, an accident occurred which resulted in his falling or being thrown from the building to the ground.

Plaintiff brought her action against a number of defendants, all of which, except for Resorts, were either dismissed prior to trial or settled during trial. At the conclusion of all the proofs, the trial judge dismissed the action against Resorts, concluding that there was no "basis for the independent finding of negligence and culpability against [Resorts]." The judge accordingly dismissed Resorts' third-party complaint for indemnification against Claremont. Plaintiff now appeals from the dismissal of her action against Resorts (A-2577-88T5). Claremont appeals from the trial judge's pretrial determination that Claremont was contractually obligated to indemnify Resorts unless "Resorts is perchance found to be the only negligent defendant;" at oral argument, counsel for Claremont represented that his appeal need be addressed only if we reverse the dismissal of plaintiff's complaint against Resorts.

I.

The essence of plaintiff's claim is that Resorts acted as general contractor and thereby assumed a duty to provide a safe place for Meder to work. Certain conditions of the work place, plaintiff says, violated applicable regulations of the Occupational Health and Safety Administration (OSHA). Relying on Bortz v. Rammel, 151 N.J.Super. 312, 376 A.2d 1261 (App.Div.1977), cert. den., 75 N.J. 539, 384 A.2d 518 (1977), plaintiff says that Resorts is responsible for those unsafe conditions. Resorts concedes that it hired the various contractors on the job and assumed the responsibility of coordinating their work, but asserts that it did not attempt to direct or control the manner in which they performed their contracts. Resorts contends that the alleged unsafe conditions were "due to the actions of Claremont and its employees," and that Resorts is not liable either as owner or general contractor "for injuries to employees of the subcontractor resulting from either the condition of the premises or the manner in which the work is performed," citing Wolczak v. National Electric Products Corp., 66 N.J.Super. 64, 168 A.2d 412 (App.Div.1961).

Plaintiff's proofs at trial were not sufficiently focused to permit us to recite with particularity each of the allegedly unsafe conditions for which plaintiff ascribed responsibility to Resorts. However, at least two unsafe conditions were identified. First, it was undisputed that at the time of the accident Meder was tethered to the building superstructure by a 3/8 inch polypropylene rope rather than a 3/4 to 7/8 inch manila hemp rope required, plaintiff's expert testified, by OSHA regulations. See 29 C.F.R. § 1926.104(c). Second, although the perimeter of the open 13th floor had been enclosed by safety cables, those cables had been partially removed to accommodate the "monster", a large movable platform which received the materials hoisted by the crane; it was in that vicinity that Meder fell or was thrown from the building. That condition was arguably a violation of OSHA regulations. See 29 C.F.R. § 1926.500. Thus the record discloses at least two conditions which a jury might find to have violated OSHA regulations and to have proximately caused the accident. The question is whether Resorts is responsible for those conditions.

As Resorts points out, Wolczak recited and applied the general principle that

Absent control over the job location or direction of the manner in which the delegated tasks are carried out, the general contractor is not liable for injuries to employees of the subcontractor resulting from either the condition of the premises or the manner in which the work is performed.

66 N.J.Super. at 71, 168 A.2d 412. That rule applies to the landowner as well as the general contractor. See Rodrigues v. Elizabethtown Gas Co., 104 N.J.Super. 436, 442-43, 250 A.2d 408 (App.Div.1969).

Bortz, however, found that rule to have been "substantially qualified by subsequent legislative action." 151 N.J.Super. at 319, 376 A.2d 1261. The court there took note of the adoption, following the "restrictive decision" in Wolczak, of the Construction Safety Act, N.J.S.A. 34:5-166 et seq., which was

expressly designed to protect the health and safety of all construction employees as well as the public in general by requiring all construction employers to comply with all safety rules and regulations promulgated under the act.

Id. Of "primary importance," the Bortz

court held, was N.J.A.C. 12:180-3.15.1, part of the Construction Safety Code promulgated pursuant to the Act, which mandated that

where one contractor is selected to execute the work of the project, he shall assure compliance with the requirements of this Chapter from his employees as well as all subcontractors.

Given the legislation and regulations, the Bortz court held that the general contractor could be found to have "a statutory obligation to take the necessary steps to insure the safety of [the subcontractor's] employees and that he failed to do so." 151 N.J.Super. at 320, 376 A.2d 1261.

The Bortz court thus found that the legislation and regulations had "a substantial impact on the continued viability of our quoted holding in Wolczak." 151 N.J.Super. at 320, 376 A.2d 1261. Invoking the rule that deviation from a statutory standard of conduct is a "relevant circumstance to be considered by the trier of fact in assessing tort liability," as well as the principle of Restatement, Torts 2d, § 874A that a legislative provision may justify the court's granting a right of action to a member of the class sought to be benefited, the court held that

It was obviously the legislative intention to ensure the protection of all of the workers on a construction project, irrespective of the identity and status of their various and several employers, by requiring, either by agreement or by operation of law, the designation of a single repository of the responsibility for the safety of them all. The assurance of prospective and continuing compliance by that repository with his responsibility demands, in our view, a right of tort action in those who are injured when there is a failure of compliance.

Id. at 320-21, 376 A.2d 1261.

On its face, Bortz would appear to require that plaintiff's case here be put to the jury. But as of April 1, 1975, the then Commissioner of Labor and Industry announced the withdrawal of the New Jersey State Plan for Occupational Safety and Health, whereupon jurisdiction was vested with the United States Department of Labor for the regulation of occupational safety and health under the Federal Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. See 7 N.J.R. 231 (May 8, 1975). As a result, the Construction Safety Code promulgated under the Construction Safety Act, N.J.S.A. 34:5-166 et seq. was repealed. 10 N.J.R. 258 (June 8, 1978). The Construction Safety Act itself, however, remained in effect.

In dismissing plaintiff's complaint, the trial judge relied principally on the fact that the regulations relied on in Bortz had been repealed. Because of that repeal, the judge reasoned,

I am now back at Point A with Wolczak. The statutory right, the cause of action created by the provisions of the regulations as interpreted [in Bortz], it is my judgment, is no longer applicable.

While the OSHA regulations impose obligations upon an "employer," the judge found that they do not "include owner in its definition." Accordingly, the judge applied the principles stated in Wolczak and dismissed plaintiff's complaint.

We find that analysis flawed. The OSHA regulations direct that

no contractor or subcontractor...