                        NOT FOR PUBLICATION WITHOUT THE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-0981-16T1

CESAR ASIJTUJ-JUTZUY,

        Plaintiff-Appellant,

v.

WERNER, CO. and M. SIKORSKI
CONSTRUCTION SALES,

        Defendants-Respondents,

and

B&S RESTORATION, INC.,

     Defendant.
_________________________________

              Submitted February 28, 2018 – Decided September 5, 2018

              Before Judges Nugent and Geiger.

              On appeal from Superior Court of New Jersey,
              Law Division, Hudson County, Docket No. L-
              0948-14.

              Ginarte Gallardo González & Winograd, LLP,
              attorneys for appellant (Richard M. Winograd,
              on the briefs).

              Michael J.      Dunn,    attorney     for   respondent
              Werner Co.
               Zirulnik, Sherlock & Demille, attorneys for
               respondent M. Sikorski Construction Sales
               (Joseph E. Kelley, on the brief).

PER CURIAM

       Plaintiff,    Cesar   Asijtuj-Jutzuy,      a   former    construction

worker, appeals the summary judgment dismissal of his personal

injury action, a lawsuit he filed to recover damages for permanent

debilitating injuries he suffered when he fell eleven or twelve

feet from a scaffold plank.         The trial court dismissed plaintiff's

negligence claim against defendant M. Sikorski Construction Sales

(Sikorski Construction), finding plaintiff presented no proofs

that     Sikorski    Construction     had   any     involvement    with     the

construction project where plaintiff's accident occurred.                   The

trial court later dismissed plaintiff's failure-to-warn product

liability claim against defendant Werner Co., determining there

was no duty to warn of an obvious danger.               Genuinely disputed

issues    of    material   fact   precluded   summary       judgment   on   the

negligence claim but not on the product liability claim.               We thus

affirm in part and reverse in part.

       Plaintiff filed his personal injury action in March 2014,

alleging he sustained disabling injuries on March 16, 2012, when

he fell from a scaffolding plank at a construction site.                    The

complaint      alleged   Sikorski    Construction     was   responsible     for

oversight of the entire project and was acting as a general

                                       2                               A-0981-16T1
contractor.      As    such,    according    to   the    complaint,   Sikorski

Construction breached its duty to plaintiff by failing to provide

a reasonably safe place to work.              The complaint also alleged

Sikorski   Construction        "created,    permitted,    and   maintained     a

dangerous and hazardous condition at the site."

     The complaint against Werner alleged that Werner designed,

manufactured, and sold the aluminum scaffold plank from which

plaintiff fell.       The complaint also alleged that the scaffolding

plank was defectively designed and manufactured, and was defective

because of its failure to include adequate "cautionary labelling

devices, and instructional information and materials at the time

it was placed into the stream of commerce."

     Following    completion      of   discovery,   Sikorski     construction

moved for summary judgment.         The trial court granted the motion.

Thereafter, Werner moved for summary judgment, and the court

granted the motion as to the product claim based on inadequate

warnings but denied it as to defective design.               Plaintiff moved

for reconsideration of the order granting summary judgment to

Werner.    The trial court denied the motion.            Plaintiff dismissed

his defective design claim against Werner and filed this appeal.

     According to the pleadings and the discovery submitted in

support of and opposition to the summary judgment motions, these

are the undisputed facts concerning the accident.               Plaintiff was

                                       3                               A-0981-16T1
an   employee    of   C.   Bossolina       Construction,    Inc.   (Bossolina

Construction).        Bossolina   Construction     had     contracted    to    do

masonry repairs to the front and rear facades of the Mayfair

Condominium in North Bergen Township (the Project).                Plaintiff

explained in an interrogatory how the accident occurred:

               On March 16, 2012, at about 1:00 p.m.,
          plaintiff was standing on an aluminum work
          platform manufactured by [Werner Co.], which
          was positioned at a height of approximately
          [eleven] to [twelve] feet, while performing
          stucco removal with the use of a power
          grinder, on the rear wall of a residential
          apartment building . . . . While doing this
          work, the grinder jammed and kicked back
          causing plaintiff to lose his balance and
          fall, striking his head on the cement pavement
          below.

     The "aluminum work platform" was a "ladder scaffold."                    The

scaffold consisted of a Werner Taskmaster Aluminum Plank, Model

2320, twenty feet long by two feet wide, supported by two ladders.1

Bossolina Construction owned the plank.             Plaintiff and several

other Bossolina Construction employees had loaded and transported

it from Bossolina Construction's shop to the Mayfair jobsite before

beginning work on the Project.

     The plank had several warnings on it, including the following:


1
   According to Werner's undisputed statement of material facts,
"[t]he plank was manufactured in 1990 by Old Ladder Co. f/k/a R.D.
Werner Co., not moving defendant, Werner Co. (DE), which did not
come into existence until 2007." This was not, however, the basis
for the trial court's grant of partial summary judgment to Werner.

                                       4                                A-0981-16T1
                Use safety belts or harnesses, lanyards
           and lifelines on all jobs which expose a
           worker to a fall of [six] or more feet, and
           which are NOT performed from a plank at least
           [eighteen] inches wide having guardrails on
           all open sides and are NOT fixed.

The scaffold plank had no guardrails.            Plaintiff testified at his

deposition that he read the warnings on the plank.

     Plaintiff was not using fall protection equipment when he

fell, because though there was a harness for his use, there was

no place to tie it off, and he was going to use the ladder scaffold

"for only that small area."         He also testified the label on the

scaffold did not really say at what "height you have to use the

safety belt."    He said he did not understand the fall protection

equipment should be used even when the scaffold height was not

above a building's first story.

     Plaintiff and four other Bossolina Construction employees

were working on the job site the day plaintiff fell.              The parties

dispute   who   was   responsible    for   job    safety   and   supervision.

Plaintiff said he was supervising the site. He testified Bossolina

Construction's    principal,   "Charlie"     Bossolina,      instructed    the

workers on what to do at the job, but on the day of the accident

Bossolina was on vacation.          He left plaintiff in charge of the

crew, a responsibility that included ensuring not only that the




                                      5                               A-0981-16T1
work was performed properly and safely, but also that the employees

were using equipment properly.

     Bossolina remembered things differently.     When deposed, he

said Sikorski Construction's principal, Michael      Sikorski, was

responsible for the Project. Asked to describe their relationship,

Bossolina said Sikorski owned his own company.    Sikorski did not

work for Bossolina.      Bossolina never employed him.        Rather,

Bossolina hired him as a subcontractor.

     Bossolina did not enter into a written contract with Sikorski

because he had "never done a contract with Mike Sikorski" before.

According to Bossolina, there was no need for a contract, because

they knew each other and did a lot of work together.       He said he

probably first spoke to Sikorski about the Project when he was

estimating the job.

     Asked what Mike Sikorski did for him, Bossolina responded

that "[i]t could be anything.     General contracting.     That could

be from foundation all the way to the roof cap.          Anything in-

between."    Bossolina also testified Sikorski "was going to do the

[P]roject.    He was going to set it up and do the [P]roject."

Bossolina made clear that from his perspective Sikorski was a

subcontractor.     Bossolina insisted Sikorski understood he was

supposed to do the labor on the project.         He also testified

Sikorski obtained the permits for the Project.

                                  6                           A-0981-16T1
     Bossolina was away when the accident occurred.             From what

Sikorski later told him, Sikorski started the job either the week

before the accident or during that week.           Bossolina said he did

not even know the project had started.         In Bossolina's absence,

Sikorski would direct the employees and had "full reign on picking

and choosing what should be done on a particular day."            Sikorski

would supervise the crew.        When supervising, Sikorski would at

times do the labor, but rarely.

     Bossolina paid Sikorski by a check and gave him a "1099" tax

form.   According to Bossolina, with the exception of the check and

1099, there was no paperwork between Bossolina Construction and

Sikorski.

     Sikorski contradicted Bossolina.          During his deposition,

Sikorski    testified   that   Sikorski   Construction   was   his    "sales

company," which used to be a sole proprietorship, but was now an

"S-Corp."    Sikorski was the company's sole officer.      In 2012, when

plaintiff's    accident   occurred,     Sikorski   Construction      had    no

employees other than Sikorski.

     According to Sikorski, he became employed as an outside sales

person for Bossolina Construction in approximately 2002 or 2003.

He was still employed in that capacity by Bossolina Construction

as of the time of his deposition in May 2016.         Sikorski testified

he did certain limited supervision for Bossolina Construction.              He

                                    7                                A-0981-16T1
was compensated by way of an $11,000 per month sales draw.                       Other

than operating Sikorski Construction and working for Bossolina

Construction, Sikorski held no positions or employment with any

other companies.

      Sikorski      denied   ever     working      as    a   laborer   for   Charlie

Bossolina. He claimed he had undergone a lumbar fusion in February

2012,    the   month   before    plaintiff's         accident,     and   was     still

recovering     in   March.      He    was       unable   to    drive   due   to     his

recuperation.       He was in no condition to be doing physical labor.

Due to the surgery and a death in his family, Sikorski was unable

to participate in any way in the Project.                     Besides, the Project

was     what   Sikorski      termed     a       "Preferred     Management"       (PMI)

construction job.       Sikorski arranged no work for Bossolina to do

for PMI.

      Plaintiff retained the services of an expert in Human Factors

to evaluate whether the scaffold plank was defective.                    The expert

opined the scaffold plank was defectively designed because it did

not include guardrails.          The expert also opined the plank was

defective because it did not include warnings that would come to

the attention of users and alert them to the potential for serious

injury if guardrails or fall protective devices were not used.




                                            8                                  A-0981-16T1
     The    trial    court      granted       summary    judgment   to    Sikorski

Construction.       The court found there was no evidence Sikorski

Construction was ever at the Project site.

     The trial court also granted summary judgment to Werner as

to the warnings claim, concluding there was no duty to warn of

open and obvious dangers.         The court denied Werner's motion as to

the design defect claim, which plaintiff later dismissed.

     Appellate courts "review[] an order granting summary judgment

in accordance with the same standard as the motion judge."                   Bhagat

v. Bhagat, 217 N.J. 22, 38 (2014) (citations omitted).                   We "review

the competent evidential materials submitted by the parties to

identify whether there are genuine issues of material fact and,

if not, whether the moving party is entitled to summary judgment

as a matter of law."         Ibid. (citing Brill v. Guardian Life Ins.

Co. of Am., 142 N.J. 520, 540 (1995); R. 4:46-2(c)).                       A trial

court's determination that a party is entitled to summary judgment

as a matter of law is not entitled to any "special deference," and

is subject to de novo review.        Cypress Point Condo. Ass'n v. Adria

Towers, LLC, 226 N.J. 403, 415 (2016) (citation omitted).

     We first address the order granting summary judgment to

Sikorski Construction.           The disputed issues of material fact

include    these:   who   was    responsible       for    running   the    job   and

implementing    safety    measures,       and,    was    the   responsible    party

                                          9                                 A-0981-16T1
either Sikorski or his company.              Plaintiff, as the party opposing

the motion, "must receive 'the benefit of all favorable evidence

and inferences presented in the record.'"                 State v. Quaker Valley

Farms, LLC, ___ N.J. ___, ___ (2018) (slip op. at 23) (citing

Murray v. Plainfield Rescue Squad, 210 N.J. 581, 585 (2012)).

Applying this standard, we conclude genuine issues of material

fact    precluded     the     grant     of    summary    judgment   to   Sikorski

Construction.

       There is a major dispute about whether Sikorski worked at the

Project.      He     says   he    did   not,    but     Bossolina   testified    he

subcontracted the project to Sikorski.                  Bossolina also testified

Sikorski obtained the permits for the Project.                      Additionally,

according to Bossolina, after he learned of plaintiff's accident,

he spoke to Sikorski and Sikorski said he started the Project

either the week of or the week before plaintiff's fall.                     Last,

Bossolina testified he paid Sikorski and gave him a 1099.

       To be sure, Sikorski's testimony contradicted Bossolina's

testimony.     Issues of credibility, however, are to be decided by

the jury, not a judge evaluating a summary judgment motion. Brill,

142 N.J. at 540.

       The   trial    court      granted      summary    judgment   to   Sikorski

Construction on the ground there was no evidence of Sikorski being

on the project site and no evidence of it having any contract with

                                         10                               A-0981-16T1
respect to the project.       In doing so, the court noted Sikorski had

not been named as an individual defendant.                  For several reasons,

we disagree that these considerations were a basis for granting

summary judgment.

     First,      Bossolina    testified     that      his    relationship       with

Sikorski was that Sikorski owned a company and that they did a lot

of work together.      Although Bossolina did not distinguish between

himself and Bossolina Construction, nor Sikorski and Sikorski

Constuction,     his   testimony    could       reasonably     be   construed      as

referring   to    their     companies.      For    example,      when     Bossolina

testified he subcontracted the job to Sikorski, he did not,

individually, have a job to subcontract out.                The contract for the

Project was between the owner and Bossolini Construction.                     Thus,

when he testified he subcontracted the Project to Sikorski, he

likely meant Bossolina Construction subcontracted the job, and he

may have meant — and a jury could have reasonably inferred —

Bossolina   Construction       subcontracted       the   Project     to   Sikorski

Construction.

     Next, Sikorski testified he generally performed work either

as   an   employee     of    Bossolina     or    an   employee      of    Sikorski

Construction, no one else.         Bossolina denied Sikorski was ever an

employee of Bossolina Construction.              Thus, if Sikorski worked at



                                      11                                    A-0981-16T1
the Project, a reasonable inference is he did so as Sikorski

Construction.

       Last, it appears in the weeks leading up to plaintiff's

accident Sikorski was a sole proprietorship using the name Sikorski

Construction.      Although the record does not clarify when Sikorski

Construction became a corporation, at oral argument Sikorski's

attorney appeared to concede Sikorski Construction was not a

corporation, and the court intimated as much.

       If such were the case, Sikorski and Sikorski Construction

were    indistinguishable       as   legal    entities.         "In     a       sole

proprietorship, the business and its owner are one and the same."

Burwell v. Hobby Lobby Stores, 134 S. Ct. 2751, 2797 (2014)

(Ginsburg,   J.,    dissenting).      Thus,    Sikorski   could       not     avoid

liability by using a name for his business when his business was

a sole proprietorship.          The court should either have permitted

plaintiff    to   amend   the    pleadings    or   ultimately    amended         the

pleadings itself to conform to the evidence.           See R. 4:9-2.

       In summary, unresolved issues of material fact precluded the

grant of summary judgment to Sikorski Construction.               The issues,

among others, include: whether Sikorski or Sikorski Construction

verbally agreed to supervise the Project's construction, and, if

so, the scope of the supervisory responsibility; whether Sikorski

worked on the project; and, if Sikorski worked on the Project,

                                     12                                     A-0981-16T1
whether he worked as a Bossolina employee or as an employee or

principal of his sole proprietorship.         In view of these unresolved

issues and the standard requiring the evidence to be construed in

the light most favorable to plaintiff, we reverse the order of

summary judgment for Sikorski Construction and remand the matter

for trial.

     We reach a different result as to the grant of summary

judgment to Werner.     Plaintiff's principal argument on appeal is

that when the trial court considered the open and obvious nature

of falling from an unguarded scaffold, the court failed to consider

that the "open and obvious" defense is not available when the

accident involves workplace equipment.            We disagree.

     The New Jersey Products Liability Act (PLA), N.J.S.A. 2A:58C-

1 to -11, provides that "[a] manufacturer or seller of a product

shall be liable in a product liability action only if the claimant

proves by a preponderance of the evidence that the product causing

the harm was not reasonably fit, suitable or safe for its intended

purpose."    N.J.S.A. 2A:58C-2.       Plaintiffs can prove a product is

defective, that is, not reasonably fit, suitable or safe for its

intended    purpose,   by   establishing    the    product   had   a   design,

manufacturing, or warning defect.          A plaintiff can establish such

a defect by proving the product: "a. deviated from the design

specifications,    formulae,     or    performance      standards      of   the

                                      13                               A-0981-16T1
manufacturer or from otherwise identical units manufactured to the

same manufacturing specifications or formulae, or b. failed to

contain adequate warnings or instructions, or c. was designed in

a defective manner."   Ibid.

     In product liability actions "for harm allegedly caused by a

product that was designed in a defective manner," it is an absolute

defense that:

          The characteristics of the product are known
          to the ordinary consumer or user, and the harm
          was caused by an unsafe aspect of the product
          that is an inherent characteristic of the
          product and that would be recognized by the
          ordinary person who uses or consumes the
          product with the ordinary knowledge common to
          the class of persons for whom the product is
          intended.

          [N.J.S.A. 2A:58C-3(a)(2).]

The statute expressly states this defense "shall not apply to

industrial machinery or other equipment used in the workplace."

Ibid.

     Plaintiff asserts the exception applies as well to product

liability warning defect cases.        Werner argues it does not.

Previously, we have explained that though the statutory defense

of "obvious danger" is:

          [E]xpressly unavailable as an absolute defense
          for industrial machinery under the design
          defect section of the [PLA], N.J.S.A. 2A:58C-
          3(a)(2), a different rule pertains in a
          failure to warn case. Nothing in the [PLA]

                               14                           A-0981-16T1
            or case law suggests that the obviousness of
            danger may not be considered as a factor to
            establish what is an "adequate warning" . . .
            or whether a breach of that duty could be a
            proximate cause of the accident.

            [Fabian v. Minster Mach. Co., Inc., 258 N.J.
            Super. 261, 279 (App. Div. 1992); accord,
            Grier v. Cochran Western Corp., 308 N.J.
            Super. 308, 323-24 (App. Div. 1998).]

     We agree with the trial court that the danger of falling from

a scaffold and sustaining serious injury is open and obvious.                   We

further agree the open and obvious nature of the risk of falling

from the scaffold and sustaining serious injury was a proper

consideration in determining whether the warnings were adequate.

The open and obvious nature of the danger would not have been an

absolute     defense      to   plaintiff's       design-defect     theory,    but

plaintiff dismissed that claim.

     We note plaintiff did not dispute he read the warnings on the

scaffold    plank   and    knew   there    was    fall   protection    equipment

available.    He testified to a number of reasons why he did not use

fall protective equipment, one reason being there was nowhere to

anchor it.      If such equipment was unusable because there was

nowhere to anchor it, then perhaps the only alternative was to use

different     scaffolding.          That     decision      would      have   been

appropriately made by whoever was supervising the Project.




                                      15                                 A-0981-16T1
     Plaintiff's remaining arguments are without sufficient merit

to warrant further discussion in a written opinion.      R. 2:11-

3(e)(1)(E).

     For the foregoing reasons, we affirm the summary judgment

order in favor of Werner but reverse the summary judgment in favor

of Sikorski and remand for trial.

     Affirmed in part, reversed in part, and remanded for trial.

We do not retain jurisdiction.




                                 16                        A-0981-16T1
