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Machado v. Gold’s Gym & Aerobic Fitness Complex of Princeton

A-1477-07T1 (N.J. Super. App. Div. 2008) (Unpublished)

CONTRACTORS; SUBCONTRACTORS — Where a factual question exists whether a general contractor or a property owner has retained control over the manner and means by which a subcontractor does the work to which it was entrusted, summary judgment in favor of the owner and subcontractor in a claim by an injured employee is improper.

A subcontractor’s employee, while installing concrete around a pool, was injured when he used a degreaser that splashed in his eyes. He brought a personal injury complaint against many parties, including the general contractor. The contractor supervised the work done at the site, and visited the site for about an hour on the date of injury. The owner moved for summary judgment even though the injured worker submitted an expert’s report that the general contractor failed to supervise work associated with the construction of a stamped pool deck, thereby violating Occupational Safety and Health Administration (OSHA) regulations. The report found that the general contractor neglected to conduct safety training, provide eye protection, inspect the workplace or ensure that the subcontractor complied with OSHA.

Despite the record, the lower court granted the motion, concluding that the general contractor did not owe a duty of care to the subcontractor’s employee. The lower court found that the general contractor’s responsibilities at the construction site did not involve direct supervision or control of the employee’s work, and that the employee’s injuries were not foreseeable by the general contractor. The employee appealed.

The Appellate Division reversed the lower court ruling and remanded for further proceedings. It found that summary judgment in favor of the general contractor was not warranted because a factual question existed whether the general contractor or the owner retained control over the manner and means of doing the work that the subcontractor was entrusted. The Court noted that the general contractor’s owner was present on the jobsite on the first day and the morning of the second, overseeing the work as it was being completed and giving instructions to the subcontractor’s employees. It also concluded that a jury could find the subcontractor’s employee’s injuries foreseeable. The Court noted that the general contractor supplied the cleaner that caused injuries to the employee, and the employee had alleged that the general contractor was aware of the risks involved in handling dangerous chemicals and had seen workers at the site wearing safety glasses on the day before the accident. It held that the OSHA violations, in addition to the general contractor’s conduct, was sufficient for a reasonable juror to determine that the general contractor established a relationship implicating safety concerns.


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