                                NOT FOR PUBLICATION WITHOUT THE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-0490-17T3

MARGARITA SORIANO,
Individually and as Administratrix
Ad Prosequendum of the ESTATE
OF GUMERCINDO SORIANO,

          Plaintiff-Appellant,

v.

70 HUDSON STREET REALTY, LLC,
DF 70 REALTY, LLC, MF 70
REALTY, LLC, LJC 70 REALTY, LLC,
HAZEL ROCK, INC., and HOUSTON
SPECIALTY INSURANCE COMPANY,

     Defendants-Respondents.
_________________________________

                    Argued January 29, 2019 – Decided February 27, 2019

                    Before Judges Hoffman, Suter and Firko.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Hudson County, Docket No. L-3086-15.

                    Richard M. Chisholm argued the cause for appellant.
            Amy K. Papa argued the cause for respondent 70
            Hudson Street Realty, LLC (Bolan Jahnsen Dacey,
            attorneys; Terrence J. Bolan, on the brief).

            Paul J. Soderman argued the cause for respondents DF
            70 Realty, LLC, MF 70 Realty, LLC, and LJC 70
            Realty, LLC.

            Vincent J. La Paglia argued the cause for respondent
            Hazel Rock, Inc. (Vincent La Paglia, attorney; Jeff E.
            Thakker, of counsel; Vincent J. La Paglia, on the brief).

            Daniel A. Schilling argued the cause for respondent
            Houston Specialty Insurance Company (Kaufman
            Borgeest & Ryan, LLP, attorneys; Brian M. Sher,
            Elizabeth Butler and Daniel A. Schilling, on the brief).

PER CURIAM

      Plaintiff, the widow of Gumercindo Soriano (decedent), appeals from Law

Division orders granting the summary judgment dismissal of her wrongful death

action and related claims, arising from the fatal injuries her husband sustained

in a work-related accident. We affirm in part, and reverse and remand in part.

                                         I

      We derive the following facts from evidence submitted by the parties in

support of, and in opposition to, the summary judgment motion, viewed in the

light most favorable to plaintiff, the non-moving party. Angland v. Mountain

Creek Resort, Inc., 213 N.J. 573, 577 (2013) (citing Brill v. Guardian Life Ins.

Co. of Am., 142 N.J. 520, 523 (1995)).

                                                                        A-0490-17T3
                                         2
      In August 2012, decedent – then fifty-nine years old – began working as

a cook at The Green Rock Tap & Grill (the restaurant), a bar-restaurant operated

by defendant Hazel Rock, Inc. (Hazel Rock). Hazel Rock leased the property

from defendant 70 Hudson Street Realty, LLC (Hudson).1

      On August 4, 2013, decedent's co-worker found him unconscious in the

basement of the restaurant, at the bottom of a rudimentary hatch ladder system

extending down from the restaurant; two days later, decedent died at a local hospital

without regaining consciousness. Plaintiff contends decedent sustained fatal head

injuries when he either slipped or fell down the unsafe, illegally installed hatch

ladder system.

      A hospital laboratory report after decedent's admission listed his blood

alcohol concentration (BAC) as 0.228.2 Despite this BAC reading, the record


1
 Defendants DF 70 Realty, LLC; MF 70 Realty, LLC; and LJC 70 Realty, LLC
own Hudson. The record indicates the principal owners of these entities are
Mario Fini, a battalion chief with the Hoboken Fire Department, and Patrick
Cappiello, a retired captain with the same department.
2
   Notably, at oral argument, counsel advised that the deposition of the nurse
who completed the blood draw had not been taken. In State v. Renshaw, we
noted the importance of the testimony of the nurse who completes the blood
draw to confirm that proper steps were followed. 390 N.J. Super. 456, 468 (App.
Div. 2007). For instance, "an error . . . in using an ethanol, rather than a betadine
swab, or in the drawing of blood from an artery rather than a vein . . . could . . .
falsely and unfairly [inflate] the BAC reading." Ibid.


                                                                             A-0490-17T3
                                         3
contains no observations of impairment of decedent before he was found

unconscious in the basement. Dan Grey, a restaurant manager and the last

person to see decedent alive, testified that decedent appeared fine and not

impaired approximately one hour before he was found. Another co-worker,

Daniel Ordone, saw decedent thirty minutes earlier and decedent also appeared

fine to him.

       At the time of decedent's fatal accident, restaurant employees had two ways

to access the basement of the restaurant. From an outside door on the street, they

could use stairs leading down to the basement. Alternatively, they could use the

hatch ladder system, consisting of a hole in the floor of a locked storage room. A

square, wooden hatch door covered the hole; when lifted, the hatch door revealed a

four foot, five inch mounted ladder, leading down to a small platform, and then an

unmounted aluminum ladder3 extending another five feet, eight and one-half inches

down from the platform to the cement floor of the basement. Thus, the total distance

from the trap door opening to the cement basement floor exceeds ten feet.




3
    A "bungee cord" held the aluminum ladder in place.



                                                                            A-0490-17T3
                                         4
      Although federal law required Hazel Rock to report decedent's accident to the

Occupational Safety and Health Administration (OSHA),4 Hazel Rock never

reported the accident or the fatality. As a result of Hazel Rock's failure to comply

with its OSHA reporting obligation, OSHA did not have the opportunity to

investigate the accident and issue citations for the accident.5 When OSHA ultimately

learned of decedent's fatal accident twenty-one months later, OSHA officials made

the decision "to investigate the establishment given that hazards which may have

contributed to an incident could still be present at the site." In fact, the hazards did

remain as the record indicates the hatch ladder system underwent no significant

change in the interim.

      An OSHA compliance safety and health officer (CSHO) conducted an

investigation of the restaurant premises on May 12, 2015. The CSHO found five

"serious" violations regarding the hatch ladder system. Three of those violations



4
   Applicable regulations require "all employers" to contact OSHA and report
"the in-patient hospitalization" of an employee within twenty-four hours of a
work-related incident, and to report "the death of any employee as a result of a
work-related incident" within eight hours. 29 C.F.R. § 1904.39 (a) (1) and (2).
5
    29 U.S.C. § 658(c) specifically provides, "No citation may be issued under
this section after the expiration of six months following the occurrence of any
violation."



                                                                                A-0490-17T3
                                           5
listed "Death" as the possible "Injury/Illness (and Justification for Severity and

Probability)."

      According to the OSHA violation worksheet following inspection of the hatch

ladder system,

             Employees were exposed to falls of up to [ten] feet6 to
             the basement below as the trapdoor floor opening was
             secured in the open position. . . .

             The entrance to the area of the trapdoor was a hinged
             door which employees had to key in a code to open.
             Once open, the trapdoor opening was directly in front
             of the worker and storage items such as towels and
             bleach used in the restaurant were stored on shelves
             around the opening. Thus opening the door was like
             going into a closet without the floor[,] given the
             trapdoor was always open.

             One could be standing by the open door in front of the
             trapdoor and when the kitchen doors open, it could
             strike a worker and send them down the opening in the
             floor.

             [Pa22]

      According to Dr. David Gushue, plaintiff's biomechanical expert, decedent's

fatal head injuries "consisted of a severe comminuted fracture involving the left

frontal, perietal, and occipital bones with associated severe intracranial injuries and



6
   An OSHA worksheet listed the exact measurement of "the distance from the
trap door opening to the basement floor as [ten] feet, [two] inches."
                                                                               A-0490-17T3
                                          6
hemorrhage." He concluded that decedent "fell from an elevated position on the

ladder(s) and/or platform and sustained multiple high-energy impacts during the fall

sequence that resulted in injuries to the left frontal aspect of his skull. . . ."

        Michael Gallucci, one of the owners of Hazel Rock, testified that employees

typically used the hatch ladder system to access the basement because it was faster.

The basement contained Gallucci's office, a walk-in refrigerator, three ice machines,

and storage of beer, wine, and liquor. Barbacks7 went down to the basement most

often to retrieve ice or other items for the bar. The cooks only used the basement to

meet with Gallucci.

        Hudson acquired the building that includes the restaurant leased to Hazel

Rock in 2003. When Hudson acquired the building, Hazel Rock was already a

tenant, renting just one floor for its restaurant. In July 2004, Hazel Rock contacted

Hudson, expressing interest in leasing the basement area below its restaurant space.

While the record contains three letters exchanged on this issue, the record

inexplicably fails to contain any letters or emails confirming the agreement reached

between Hudson and Hazel Rock regarding the lease of the basement, nor any

addendum or amended lease addressing this issue.




7
    According to Hazel Rock, the term "barbacks" refers to bartenders' assistants.
                                                                                     A-0490-17T3
                                             7
      At some point during the latter half of 2004, Hazel Rock began leasing the

basement below its restaurant. Because the only way to access the basement from

the restaurant was through an outside door, Gallucci wanted to install the hatch

ladder system at issue. According to Gallucci, when he informed Hudson regarding

the proposed installation, Hudson told him they had "permits out on the building,"

since "they were doing a lot of work on the building." As a result, Gallucci did not

obtain a construction permit for the hatch ladder work since Hudson told him no

permit was necessary. While Gallucci claimed he hired a contractor to install the

hatch ladder system, he could not recall the name of the contractor. Regardless, the

record clearly shows that Hazel Rock installed the hatch ladder system without a

construction permit, without design plans, and without any inspections by any

construction code officials.

      According to Gallucci, Fini and Capiello were both aware of the hatch ladder

system.   In contrast, Fini and Capiello both deny knowledge of any Hudson

representative granting permission for Hazel Rock to install the hatch ladder system

or seeing it in place before decedent's accident. Nevertheless, Capiello admitted he

was present in the basement "when [Gallucci] took the space," referring to the final

negotiation which expanded the leased premises to include the basement. Of note,




                                                                            A-0490-17T3
                                         8
it appears from the record that, at all relevant times, Hudson had its offices on the

seventh floor of the same building as the restaurant.

      A May 19, 2010 lease8 between Hudson and Hazel Rock included a

"BUILD-OUT ADDENDUM," which placed strict conditions on all "tenant

improvements or alterations." In the addendum, Hudson required Hazel Rock

to "comply with all of the laws, orders, rules, and regulations of all governmental

authorities" and to procure all required "governmental permits and

authorizations."   The addendum further required Hazel Rock to submit to

Hudson "all plans and specifications" for "prior written approval" before

commencing any work. The addendum also obligated Hazel Rock to use only

"fully licensed and insured contractors."

      Shortly after decedent's accident, plaintiff filed a workers' compensation

claim. In its answer, Hazel Rock admitted decedent was employed "on date

alleged in petition," but denied the accident "[a]rose out of and in the course of

employment." Hazel Rock and plaintiff eventually reached a $60,000 Section



8
   The record does not contain a copy of the lease that would have been in effect
when Hudson allegedly gave Hazel Rock permission to install the hatch ladder
system and advised that no building permit was required. It appears the trial
court and the parties assumed the lease in effect in 2004 had the same terms as
the May 19, 2010 lease.


                                                                             A-0490-17T3
                                          9
209 settlement. The settlement order states it is "pursuant to N.J.S.A. 34:15-

20[,] which has the effect of a dismissal with prejudice, being final as to all

rights and benefits of the petitioner and is a complete and absolute surrender and

release of all rights arising out of this/these claim petition(s)."

       On July 22, 2015, plaintiff filed a complaint against Hudson. Plaintiff

later amended her complaint to add claims against Hazel Rock and defendant

Houston Specialty Insurance Company (Houston Specialty), Hazel Rock's

insurer.

       In July 2017, each defendant filed a motion for summary judgment.

Following oral argument, the trial court delivered an oral opinion, addressing

the motion of each defendant in turn.

       Regarding Hazel Rock, the trial court first found decedent was a Hazel Rock

employee. The court then noted plaintiff's failure to cite any authority to support the

argument that the Section 20 settlement should not bar plaintiff's tort action against

Hazel Rock.     The court proceeded to make other findings, apparently on an

alternative basis, in the event the Section 20 settlement did not serve to bar plaintiff's

claim against Hazel Rock. The court then found "no evidence in the motion



9
    N.J.S.A. 34:15-20.


                                                                                 A-0490-17T3
                                          10
record . . . that would place Hazel Rock on notice that there was virtual certainty of

injury or death that would result from the use of a ladder access." The court also

found no evidence Hazel Rock knew of a danger to decedent and intentionally

disregarded that danger, and no evidence of any other injuries occurring near the

hatch ladder system. The court rejected as "speculation" plaintiff's argument that a

known hazard in the hatch ladder system caused decedent's accident, concluding,

"The record is completely devoid of any evidence that it did create a danger."

      Regarding Hudson, the trial court found there was a "triple net lease that

places the responsibility for maintenance and repairs upon the tenant." The court

also found Hazel Rock constructed the hatch ladder system without the approval of

Hudson. Ultimately, the court found Hudson had no "actual knowledge" of a

"hazard" that "caused the accident."

      Regarding Hazel Rock's insurer, the trial court granted summary judgment

because it found "the insurance policy. . . was not intended to provide a benefit

to [decedent]."    The court further concluded any damages from decedent's

accident would have been excluded under the policy in any event, under three

different exclusions.     First, the trial court found the employer's liability

exclusion applied. Second, the trial court found the workers' compensation




                                                                              A-0490-17T3
                                        11
exclusion applied. Third, the trial court found the expected or intended injury

exclusion applied.

      The trial court then entered orders dismissing all counts of plaintiff's

complaint. This appeal followed.

                                       II

      In reviewing a grant of summary judgment we "'employ the same standard

. . . that governs the trial court.'" W.J.A. v. D.A., 210 N.J. 229, 237 (2012)

(quoting Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010)). We

first determine whether the moving party demonstrated there were no genuine

disputes as to material facts. Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387

N.J. Super. 224, 230 (App. Div. 2006). A determination whether there exists a

"genuine issue" of material fact that precludes summary judgment requires the

motion judge to 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, 142 N.J. at 540. We then decide "whether the

motion judge's application of the law was correct." Atl. Mut. Ins. Co., 387 N.J.

Super. at 231. In this regard, our review is plenary, owing no deference to the

judge's legal conclusions. Manalapan Realty, L.P. v. Manalapan Twp. Comm.,


                                                                         A-0490-17T3
                                      12
140 N.J. 366, 378 (1995). "The interpretation of contracts and their construction

are matters of law for the court subject to de novo review." Sealed Air Corp. v.

Royal Indem. Co., 404 N.J. Super. 363, 375 (App. Div. 2008) (citing Fastenberg

v. Prudential Ins. Co. of Am., 309 N.J. Super. 415, 420 (App. Div. 1998)). We

apply basic principles of contract interpretation to a lease. Town of Kearny v.

Disc. City of Old Bridge, Inc., 205 N.J. 386, 411 (2011).

      When viewed in the light most favorable to plaintiff, the relevant facts do

not warrant the entry of summary judgment in favor of Hudson; however, the

record does support the summary judgment dismissal of plaintiff's complaint

against Hazel Rock and Houston Specialty. We address the claims against

defendants in turn.

                                   A. Hazel Rock

      Plaintiff argues the workers' compensation settlement was essentially a

dismissal and therefore does not bar an action at law, at least for an intentional tort

claim. We disagree and affirm the trial court's conclusion that the Section 20

settlement here bars plaintiff's claim against Hazel Rock.

      Workers' compensation laws "provide an expeditious and certain remedy for

employees who sustain work injuries by the statutory imposition of absolute but

limited and determinate liability upon the employer." Wilson v. Faull, 27 N.J. 105,


                                                                               A-0490-17T3
                                         13
116 (1958) (citing Cardillo v. Liberty Mutual Ins. Co., 330 U.S. 469 (1947)). The

statutory scheme represents a compromise whereby "[t]he employee surrenders his

right to seek damages in an action at law in return for swift recovery independent of

proof of fault." Ibid. Pursuant to N.J.S.A. 34:15-8:

             If an injury or death is compensable under this article,
             a person shall not be liable to anyone at common law or
             otherwise on account of such injury or death for any act
             or omission occurring while such person was in the
             same employ as the person injured or killed, except for
             intentional wrong.


While the statute grants absolute immunity to employers from common law

negligence suits by employees, Cellucci v. Bronstein, 277 N.J. Super. 506, 518 (App.

Div. 1994), it does not preclude an action based on intentional wrongful conduct.

        While plaintiff's Law Division complaint alleged intentional wrongful

conduct against Hazel Rock, in October 2016 plaintiff and Hazel Rock entered into

a Section 20 settlement pursuant to N.J.S.A. 34:15-20, which provides, in relevant

part:

             [A] judge of compensation may with the consent of the
             parties, after considering the testimony of the petitioner
             and other witnesses, together with any stipulation of the
             parties, and after such judge of compensation has
             determined that such settlement is fair and just under
             all the circumstances, enter "an order approving
             settlement." Such settlement, when so approved,
             notwithstanding any other provisions of this chapter,

                                                                             A-0490-17T3
                                        14
             shall have the force and effect of a dismissal of the
             claim petition and shall be final and conclusive upon
             the employee and the employee's dependents, and shall
             be a complete surrender of any right to compensation
             or other benefits arising out of such claim under the
             statute.

      "Receipt of a lump sum settlement under N.J.S.A. 34:15-20 constitutes an

implied acknowledgment that the claimant's disability was work-related and

compensable under the Workers' Compensation Act." Sperling v. Bd. of Review,

301 N.J. Super. 1, 5 (App. Div. 1997). In Hawksby v. DePietro, 165 N.J. 58, 66

(2000), our Supreme Court held that a Section 20 settlement barred a subsequent

medical malpractice claim against a co-employee doctor. The Court reasoned it

would be unfair to hold the employer liable for both common law damages and

workers' compensation liability. Id. at 66-67. A Section 20 settlement "is designed

to achieve a complete settlement of all issues for all of the parties concerned." Univ.

of Mass. Mem'l Med. Ctr., Inc. v. Christodoulou, 360 N.J. Super. 313, 320 (App.

Div. 2003), rev'd on other grounds, 180 N.J. 334, 349 (2004). We are satisfied that

the trial court correctly determined that plaintiff's Section 20 settlement bars plaintiff

from seeking damages from Hazel Rock in an action at law.

                         B. Houston Specialty Insurance Company

      The trial court granted summary judgment to the insurer because it found "the

insurance policy . . . was not intended to provide a benefit to [decedent]." We agree.

                                                                                 A-0490-17T3
                                          15
      "[I]t is well recognized that an injured person possesses no direct cause of

action against the insurer of the tortfeasor prior to recovery of judgment against the

latter." President v. Jenkins, 357 N.J. Super. 288, 312 (App. Div. 2003), rev'd in part

on other grounds, 180 N.J. 550 (2004); see also Cruz-Mendez v. ISU/Ins. Servs.,

156 N.J. 556, 566-67 (1999) ("Generally, plaintiffs in tort actions may not directly

sue insurers.").

      Plaintiff argues the trial court was precluded from granting summary

judgment on standing grounds because the court already rejected that argument on a

motion to dismiss. This argument lacks merit. As the trial court explained, a motion

to dismiss requires a more stringent standard than a summary judgment motion, and

the court decided the motion to dismiss before discovery was complete. Thus, the

rejection of the standing argument on Houston Specialty's motion to dismiss did not

preclude it from again raising the issue of standing in support of its summary

judgment motion. Here, plaintiff did not recover a judgment against Hazel Rock;

therefore, we agree plaintiff lacks standing to bring a claim against Hazel Rock's

insurer.

      The trial court further concluded any damages from decedent's accident would

have been excluded under the policy anyway under three different exclusions.

Interpretation of an insurance contract is generally a matter of law subject to de novo


                                                                               A-0490-17T3
                                         16
review. Sealed Air Corp., 404 N.J. Super. at 375. "An insurance policy is a contract

that will be enforced as written when its terms are clear in order that the expectations

of the parties will be fulfilled." Flomerfelt v. Cardiello, 202 N.J. 432, 441 (2010)

(citing Kampf v. Franklin Life Ins. Co., 33 N.J. 36, 43 (1960); Scarfi v. Aetna Cas.

& Sur. Co., 233 N.J. Super. 509, 514 (App. Div. 1989)). Exclusions are generally

narrowly construed, and the burden is on the insurer to bring the claim within the

exclusionary language.      Id. at 442.    Nevertheless, "[e]xclusionary clauses are

presumptively valid and are enforced if they are 'specific, plain, clear, prominent,

and not contrary to public policy.'" Id. at 441 (quoting Princeton Ins. Co. v.

Chunmuang, 151 N.J. 80, 95 (1997)).

      The trial court first found the employer's liability exclusion applied. The

policy excludes "'[b]odily injury' to . . . [a]n 'employee' of the insured arising out of

and in the course of . . . [e]mployment by the insured; or . . . [p]erforming duties

related to the conduct of the insured's business . . . ." Decedent worked for Hazel

Rock at the restaurant as a cook for approximately one year before the accident. Two

of decedent's co-workers testified that decedent was working at the time of the

accident. Furthermore, a co-worker found decedent in the basement, an area

restricted to employees only. Because both Hazel Rock and plaintiff agree decedent

was an employee of Hazel Rock and the record clearly shows decedent was working


                                                                                A-0490-17T3
                                          17
at the time of the accident, we affirm the trial court's finding that the employer's

liability exclusion applies.

      Plaintiff further argues the insurer is precluded under judicial estoppel from

arguing the decedent was injured in the course of employment because Hazel Rock

argued the opposite during the workers' compensation proceeding. We disagree

judicial estoppel applies here since Hazel Rock did not successfully maintain that

argument. Accordingly, we reject plaintiff's argument that judicial estoppel prevents

Hazel Rock or its insurer from arguing decedent was in the course of employment at

the time of his accident. In light of our affirmance of the trial court's conclusion that

the employer's liability exclusion applied, we need not address the additional

exclusions cited by the court as providing alternative bases for granting summary

judgment to Houston Specialty.

                                     C. Hudson

      As previously noted, the record does not contain a copy of the lease that

was in effect in 2004 when Hazel Rock installed the hatch ladder system at issue

in this case. Since we acknowledge the possibility that the lease in effect in

2004 contained the identical material terms as the 2010, we will address the

issues presented on this assumption. Nevertheless, if the 2004 lease should




                                                                                A-0490-17T3
                                          18
surface on remand, the court should address the issues presented by the

installation of the hatch ladder system under that lease.

      We recognize that, as a general proposition, "'there is no landlord liability'

for personal injuries suffered by a commercial tenant's employee on the leased

premises 'due to a lack of proper maintenance or repair, when the lease

unquestionably places responsibility for such maintenance or repair solely upon

the tenant.'" Geringer v. Hartz Mountain Dev. Corp., 388 N.J. Super. 392, 401

(App. Div. 2006) (quoting McBride v. Port Auth. of N.Y. and N.J., 295 N.J.

Super. 521, 522 (App. Div. 1996)).

      In Geringer, an employee of the tenant was injured after falling on an interior

stairway within an office building. 388 N.J. Super. at 394. The tenant leased the

entire seventh floor of the building via a "triple net" lease, which delegated the duty

of maintenance and repairs to the tenant. Id. at 400. We found the property owner

had no duty to maintain or repair the stairway. Id. at 402. We further found

knowledge of a hazard is not sufficient to impose a duty upon the owner to repair.

See Id. at 401 (declining to find "the deposition statements of [the] property

manager . . . acknowledging hypothetically that he or she might alert [the tenant]

upon noticing a loose handrail, a hole in the floor or some other similar problem




                                                                               A-0490-17T3
                                         19
while walking through the seventh floor, as sufficient to confer an ongoing duty upon

[the owner] to inspect, maintain or repair the stairway.").

      However, we found the owner in Geringer did have a duty to design the

stairway free of defects in the first place. Id. at 402. We found that because the

owner reviewed construction plans, inspected during construction, and

communicated with the tenant regarding construction, the owner owed "a duty of

care in the design and construction of the stairway . . . ." Id. at 403. We therefore

reversed summary judgment on the limited issue of whether the owner breached its

duty of reasonable care in designing the stairway. Id. at 404-05.

      Plaintiff argues the trial court erred in finding the owners had no actual

knowledge of the hazard that caused decedent's accident, and therefore erred in

granting summary judgment. In support of this argument, plaintiff cites Gallucci's

deposition testimony that Hudson granted Hazel Rock permission to install the hatch

ladder system at issue, and told Hazel Rock that construction could proceed without

securing a building permit because they had "permits out on the building." As a

result, Gallucci claims he understood that no permit was required and proceeded to

install the hatch ladder system without a construction permit, without design plans,

and without any inspections by any construction code officials. Gallucci further




                                                                             A-0490-17T3
                                         20
testified that the owners of Hudson were aware of the hatch ladder system because

"they've been down there."

      From our review, the record does not support the trial court's finding that the

owners had no actual knowledge of the hazard that caused decedent's accident. The

court could only make this finding by accepting the deposition testimony of

Hudson's principal owners as true and ignoring Gallucci's deposition testimony. Nor

does the record support the trial court's finding that "[t]he record is completely

devoid of any evidence" that the hatch ladder system created "a danger." To the

contrary, the results of the OSHA investigation presented compelling evidence that

the hatch ladder system created "a danger," considering the five "serious" violations

of OSHA safety regulations identified, with three of the violations exposing workers

to risk of death. In addition, photographs in the record provide strong support for

the OSHA findings.

      Plaintiff also argues the owners owe a duty to decedent under general

negligence case law. Plaintiff states, "Whether a duty of care is owed in a case

is truly a fact-sensitive decision that is ultimately a test of fairness," citing

Weinberg v. Dinger, 106 N.J. 469, 485 (1987). Plaintiff argues the owners had

a duty of care because of their actual knowledge of the existence of the unsafe

hatch ladder system. In response, Hudson argue that Geringer clearly holds a


                                                                             A-0490-17T3
                                        21
property owner has no duty to protect against hazards when the owner h as no

control over the premises. The trial court found no basis to impose liability on

Hudson, citing the triple net lease and its finding that Hazel Rock constructed

the hatch ladder system without the approval of Hudson.

      As noted, the record reflects a clear dispute regarding Hudson's approval

of the hatch ladder system and its alleged responsibility for the installation

occurring without permits or inspections. We also part company with the trial

court's finding that Hudson does not have any potential liability to plaintiff

based upon its triple net lease agreement with Hazel Rock. Even if Hazel Rock

installed the hatch ladder system, Hudson here remains potentially liable under

their lease agreement.

      As we recognized in Geringer, a triple net lease agreement does not relieve

the landlord from liability when the provisions of the lease require the landlord's

approval in the design and construction process. 388 N.J. Super. at 404-05.

Summary judgment is not appropriate, and a trial is necessary where the record

contains evidence the landlord "breached its duty to exercise reasonable care in

assuring the safe design and construction of the stairway on which plaintiff

suffered her injury." Ibid. Here, the record not only contains no evidence

Hudson exercised reasonable care to assure the safe design and construction of


                                                                           A-0490-17T3
                                       22
the hatch ladder system, the record contains evidence that Hudson directly

facilitated the construction of the unsafe hatch ladder system. Specifically,

according to Hazel Rock, Hudson advised they had a standing or open building

permit, thus relieving Hazel Rock of its normal obligation to secure a

construction permit.

      Here, the lease agreement provides that any improvement by Hazel Rock

must be performed by "fully licensed and insured contractors," after first

submitting "all plans and specifications" for "prior written approval, and

obtaining" all required "governmental permits and authorizations."          In this

regard, this case is similar to Geringer, where we held that "the surrounding

circumstances suggest that [the landlord] kept its hand in the design and

construction phase of the project, thereby providing it with both the 'opportunity

and ability to exercise reasonable care' in how the stairway in question was

built." Id. at 403 (quoting Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439

(1993)).

      Consequently, it is incumbent upon a factfinder at trial to determine

whether Hudson was negligent in relation to the unsafe hatch ladder system,

including whether it caused or shares in the responsibility for Hazel Rock's

failure to obtain design plans, failure to secure a construction permit, and failure


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to use a licensed contractor. We further note that the hatch ladder system at

issue here did not present a danger because of negligent maintenance or repair;

instead, the record indicates an unsafe apparatus, which OSHA found lacked

"standard railings" and other basic safety precautions. The glaring deficiencies

noted by OSHA indicate negligent design, not negligent maintenance or repair.

      Affirmed in part, and reversed and remanded in part.




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