                                NOT FOR PUBLICATION WITHOUT THE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.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-1129-17T1

JOSE LATA,

          Plaintiff-Appellant,

v.

DANIEL LOUGHLIN and/or
KELLY LOUGHLIN,
and MILLSTONE VALLEY
GENERAL CONSTRUCTION,

          Defendants,

and

WAITIKOWICH CONSTRUCTION
INC.,

     Defendant-Respondent.
_____________________________

                    Argued November 7, 2018 – Decided November 26, 2018

                    Before Judges Yannotti and Natali.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Essex County, Docket No. L-1747-15.
            Carlos H. Acosta, Jr. argued the cause for appellant
            (Mescall & Acosta, PC, attorneys; Carlos H. Acosta,
            Jr., on the brief).

            Joseph A. Reardon, III argued the cause for respondent
            (Leary, Bride, Mergner & Bongiovanni, PA, attorneys;
            Joseph A. Reardon, III, of counsel and on the brief).

PER CURIAM

      Plaintiff Jose Lata appeals the Law Division's September 29, 2017 order

granting defendant Waitikowich Construction, Inc. (Waitikowich) summary

judgment and dismissing his personal injury complaint. We affirm.

      Waitikowich was the general contractor of a residential construction

project and hired Millstone Valley General Construction (Millstone) to complete

the framing work on the home.       Plaintiff, an employee of Millstone, was

installing a box beam on the second story of the site, when he lost his balance,

fell approximately nine feet to the ground and sustained bodily injuries. After

the Occupational Safety and Health Administration (OSHA) investigated the

accident, it issued Millstone citations for violating OSHA regulations and a

penalty of $2,860.

      When deposed, Christopher Patrick, Millstone's owner and president,

testified that Millstone provided its own tools and safety equipment, including

safety harnesses for its workers.     He also stated that he did not expect


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                                       2
Waitikowich to assume responsibility for overseeing the safety of his

employees.

      In his deposition, plaintiff testified that Millstone's foreman was the only

person supervising his work, and the only supervisor present at the construction

site when the accident occurred. Further, Peter Loughlin, the vice president of

Waitikowich, stated that Millstone was expected to "coordinate [its] own safety

program," and that Waitikowich hired Millstone because it did not have

extensive experience framing and the safety standards associated with it.

      Waitikowich moved for summary judgment and maintained that it did not

owe plaintiff a duty of care. In opposition to the motion, plaintiff submitted an

expert report prepared by Vincent Gallagher, an occupational safety and health

expert, who opined that Waitikowich "failed to plan, monitor and ensure that

[Millstone's] framers were protected from falls while installing joists and box

beams," violating OSHA regulations.          Gallagher further concluded that

Waitikowich "made a deliberate decision to permit Millstone . . . workers to

work while exposed to fall hazards likely to result in serious injury or death."

      The court granted the motion, concluding that, as a matter of law,

Waitikowich did not owe a duty of care to plaintiff. The court relied on Alloway

v. Bradlees, Inc., 157 N.J. 221 (1999), and explained it would be inequitable to


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                                        3
impose a duty of care on Waitikowich because it was "so far removed [from] the

activities that Millstone was undertaking and the work that . . . plaintiff was

doing."

      Plaintiff raises three arguments on appeal.           First, he maintains

Waitikowich had a non-delegable duty to provide him with a safe work

environment free from foreseeable injuries.       Second, plaintiff asserts that

Waitikowich and the court erroneously relied on an "an outmoded approach to

construction safety law" that relieved general contractors from liability for a

subcontractor's negligence. Finally, plaintiff argues for the first time on appeal

that OSHA regulations preempt New Jersey common law and impose a non-

delegable duty on general contractor, contrary to Waitikowich's claims. Having

considered these arguments in light of the record and applicable legal principles,

we conclude the court correctly determined that Waitikowich did not owe

plaintiff a duty of care.

      In ruling on a summary judgment motion, a trial court must "consider

whether the competent evidential materials presented, when viewed in the light

most favorable to the non-moving party, are sufficient to permit a rational

factfinder to resolve the alleged disputed issue in favor of the non-moving

party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). An


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                                        4
appellate court reviews a grant of summary judgment de novo, using the same

standard as the trial court. Turner v. Wong, 363 N.J. Super. 186, 198-99 (App.

Div. 2003). Thus, we must determine whether a genuine issue of material fact

is present and, if not, evaluate whether the trial court's ruling on the law was

correct. See Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162,

167-69 (App. Div. 1998).

      "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) (quoting Polzo

v. Cty. of Essex, 196 N.J. 569, 584 (2008)). "[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).

      At common law, a general contractor was not liable for a subcontractor's

employee's injuries caused by "the condition of the premises or the manner in

which the hired work was performed." Tarabokia v. Structure Tone, 429 N.J.

Super. 103, 112–13 (App. Div. 2012). However, that general rule did not apply

if the general contractor: (1) retained control over the "manner and means" of

how the work was performed; (2) "knowingly engage[d] an incompetent




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subcontractor;" or (3) contracted for work that was "inherently dangerous." Id.

at 113.

      Under the "more modern approach," courts consider "the foreseeability of

the risk of injury, both its nature and severity." Id. at 113-14 (citations omitted).

"Although a foreseeable risk is the indispensable cornerstone of any formulation

of a duty of care, not all foreseeable risks give rise to duties." Dunphy v. Gregor,

136 N.J. 99, 108 (1994). "Ultimately, [determining] whether a duty exists is a

matter of fairness," ibid., and involves a complex analysis that "weigh[s], and

balance[es] several factors – the relationship of the parties, the nature of the

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

in the proposed solution." Alloway, 157 N.J. at 230 (quoting Hopkins v. Fox &

Lazo Realtors, 132 N.J. 426, 439 (1993)) (internal quotation marks omitted).

"The analysis is both very fact-specific and principled; it must lead to solutions

that properly and fairly resolve the specific case and generate intelligible and

sensible rules to govern future conduct." Hopkins, 132 N.J. at 439.

      In support of his first and second points of error, plaintiff principally relies

on Alloway, as well as Meder v. Resorts Int'l Hotel, Inc., 240 N.J. Super. 470,

475-76 (App. Div. 1989). We disagree that those cases, and the other authority

cited by plaintiff, supports the imposition of a duty of care on Waitikowich.


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                                          6
      In Alloway, our Supreme Court concluded that a general contractor had a

duty to ensure the safety of a subcontractor's employee who was injured when

her arm became entangled in a malfunctioning hydraulic lift mechanism of a

dump truck. Alloway, 157 N.J. at 240. In that case, the general contractor

attempted to repair the mechanism the day before the accident and knew it was

still defective before plaintiff was injured.   Further, the general contractor

directed the subcontractor's work and the subcontractor's owner was an

employee of the general contractor. Id. at 232-33.

      The Alloway court imposed a duty under those facts "as a matter of

fairness and sound policy." Id. at 233. The Supreme Court concluded the risk

of injury was clearly foreseeable because the general contractor had actual

knowledge immediately preceding the accident of the defect in the lift, the

dangers of malfunction, and the risk of injury. Moreover, the parties shared a

close relationship and the general contractor had the "opportunity and capacity"

to exercise authority over the equipment and had undertaken steps to correct

defects in the truck. Ibid.

      The facts here are in sharp contrast to those in Alloway. It is undisputed

that Waitikowich hired Millstone, an experienced subcontractor, to perform the

framing work. Waitikowich did not actively supervise Millstone's work, its


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                                       7
employees, or the manner in which the framing was performed.               Rather,

Millstone was solely responsible for hiring its workers, directing their work , and

ensuring their safety.

      Patrick testified that the construction site had two or three buckets

containing "a rope, a harness, everything in the bucket you need for fall

protection," and although plaintiff disputed much of this testimony, it was

uncontested that Waitikowich was not responsible for providing Millstone

workers with safety equipment. Nor did plaintiff dispute that Millstone provided

its workers with all the tools and equipment used for the project. Further,

Loughlin was not on the site at the time of the accident, and there is no evidence

in the summary judgment record that the sole Waitikowich employee on-site that

day interacted with plaintiff in any capacity.

      Finally, Waitikowich had no special relationship with the Millstone, was

not involved in creating the dangerous condition, and was unaware that plaintiff

was not wearing his safety harness. By contrast, in Alloway, the contractor had

unsuccessfully tried to fix the truck that caused plaintiff's injury and failed to

warn her of the danger it posed. Alloway, 157 N.J. at 227; see also Carvalho v.

Toll Bros. & Developers, 143 N.J. 565, 577–78 (1996) (duty imposed on general




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                                        8
contractor where its engineer was assigned to observe the site and knew about

the dangers of the unstable trenches that caused plaintiff's death).

      Thus, we find no basis in this record to impose a duty on Waitikowich to

require it to conduct daily inspections, supervise the project , or ensure that

Millstone's workers, like plaintiff, were using safety harnesses. Even if we were

to conclude that the risk of falling from a beam was foreseeable by Waitikowich,

the relationship of the parties, the nature of the attendant risk, and the

opportunity and ability to exercise care were not such that a duty of care on the

part of the general contractor could, as a matter of law, be found to exist. See

Tarabokia, 429 N.J. Super. at 120-21 (general contractor had no duty of care for

the safety of subcontractor's employee when general contractor did not

contribute to the risk of injury, placed the responsibility for work site safety on

the subcontractors, and no special relationship existed between the contractor

and subcontractor).

      Further, while we acknowledge that OSHA cited Millstone, those

violations do not automatically impose a duty of care on a general contractor.

As Alloway makes clear, a contractor's duty of care is determined by evaluating

"general negligence principles," 157 N.J. at 230, and "the violation of OSHA

regulations without more does not constitute the basis for an independent or


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                                        9
direct tort remedy." Id. at 236; see also Costa v. Gaccione, 408 N.J. Super. 362,

372-73 (App. Div. 2009) ("non-compliance with [OSHA] standards does not

alone create a viable cause of action, nor does it necessarily place a tort duty of

care on the general contractor . . . [and] violations of OSHA are to be considered

with other 'fairness' factors in determining the existence of a duty . . . .").

      Finally, we need not address plaintiff's final point that OSHA regulations

preempt New Jersey law because that issue was not raised in the trial court and

does not "go to the jurisdiction of the trial court or concern matters of great

public interest." Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)

(quoting Reynolds Offset Co., Inc. v. Summer, 58 N.J. Super. 542, 548 (App.

Div. 1959)).

      To the extent we have not directly addressed the balance of the plaintiff's

arguments, we find them to lack sufficient merit to warrant discussion in a

written opinion. R. 2:11-3(e)(1)(E).

      Affirmed.




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