DOUG RISHEL LISA RISHEL v. CONSTRUCTION INC (2011)

Plaintiff Doug Rishel (Rishel), and his wife Lisa Rishel suing per quod, appeal the dismissal on summary judgment of their complaint against defendant A.P. Construction, Inc. (A.P.).  We reverse.

I.

We discern the following facts and procedural history from the record.

In March 2004, Rishel was employed by Camden County Community College (College) as a boiler operator.   A.P. was in the process of doing construction on the College campus.   According to the deposition excerpts in the record, A.P. had removed the blacktop from the parking lot between Truman Hall and Roosevelt Hall.

In the early hours of March 22, 2004, Rishel was in the process of leaving Truman Hall, where the College's main physical plant was located, to go to Roosevelt Hall, which was located to the north across the parking lot where the construction was located.   Although there were fences in adjacent areas, there were no fences or warnings outside the loading-dock door through which Rishel left Truman Hall. According to one of A.P.'s deposition witnesses, the inside of the door was supposed to have had a sign, placed by the College, that it was only to be used as an emergency exit.

When Rishel left Truman Hall to start across the parking lot, he noticed that there was construction and that the blacktop had been removed.   As he proceeded across the lot, his foot went into a rut, which caused him to fall.   He alleges that the fall caused a back injury that required surgery and has left him totally disabled.

Plaintiffs filed their complaint on March 21, 2006, alleging that A.P. was negligent and that A.P.'s negligence caused Rishel's injuries.   After the filing of an answer and the completion of discovery, A.P. moved for summary judgment, arguing that plaintiffs could not prove negligence without an expert witness.   Plaintiffs opposed the motion.   Following oral argument on February 5, 2010, the motion judge granted summary judgment and entered an order dismissing the complaint.

This appeal followed.

II.

Plaintiffs argue on appeal that the motion judge erred because their claim could go to the jury without an expert witness.   A.P. counters by arguing that an expert witness is required when a plaintiff seeks to rely on regulations promulgated by the Occupational Safety and Health Administration (OSHA).

It is well-established that our review of a trial judge's conclusions of law is de novo.  Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) (“A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.”).   Consequently, we review a grant of summary judgment de novo, applying the same standard governing the trial court under Rule 4:46-2(c).  Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007);  Brill v. Guardian Life Ins. Co., 142 N.J. 520, 539-40 (1995).

We note that A.P. does not contend that it had no duty to Rishel.   In Alloway v. Bradlees, Inc., 157 N.J. 221, 230 (1999), the Supreme Court outlined the basis for determining whether there is a duty under general theories of tort liability.

A major consideration in the determination of the existence of a duty of reasonable care under “general negligence principles” is the foreseeability of the risk of injury.  Carey v. Lovett, 132 N.J. 44, 57 (1993);  Weinberg v. Dinger, 106 N.J. 469, 485 (1987).   In addition, the deter-mination of such a duty “involves identifying, weighing, and balancing 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.”  Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439 (1993).   The analysis leading to the imposition of a duty of reasonable care is “both fact-specific and principled,” and must satisfy “an abiding sense of basic fairness under all of the circumstances in light of considerations of public policy.”   Ibid.;  Clohesy v. Food Circus Supermarkets, Inc., 149 N.J. 496, 502 (1997) (noting that the determination of the existence of a duty to exercise reasonable care is one of fairness and policy).

We see no reason to doubt that A.P. owed a duty to Rishel under the facts of this case.   A.P. should have foreseen that someone walking on the campus could be injured if he or she entered the work area.

OSHA regulations can be admitted to prove deviation from a standard of care.   Costantino v. Ventriglia, 324 N.J.Super. 437, 441-43 (App.Div.1999) (OSHA regulations are admissible to establish a standard of care in a common law negligence action), certif. denied, 163 N.J. 10 (2000).   Generally, however, the use of OSHA regulations must be supported by expert testimony.  Id. at 444;  Smith v. Kris-Bal Realty, Inc., 242 N.J.Super. 346, 348 (App.Div.1990).

The question presented on this appeal is whether a jury can consider the issue of A.P.'s negligence without any expert testimony outlining a standard of care, whether based upon OSHA or some other code.   Under the circumstances of this case, as reflected in the record, we are satisfied that an expert witness is not required.

According to Rishel, he exited the north door of Truman Hall and proceeded to cross the former parking lot on which A.P. was performing construction work.   He saw no fences or warning signs, and he claimed that the area was not well-lit.   According to A.P.'s employee, the fence preventing people exiting through the north door from entering the construction zone was the sign that the College was supposed to post on the inside door stating that it was for emergency exit only.   He answered “no” when asked:  “[N]othing was done by way of fencing or signage by A.P. Construction in the vicinity of that loading dock to keep people out or warn people of dangers in the construction site?”

Based upon those facts, we conclude that summary judgment should have been denied.   If there had been a fence and warning signs and the issue was whether they were adequate, an expert would likely be required.   Rishel does not intend to present evidence concerning OSHA requirements at trial, but only to rely on general principles of negligence law.

Our understanding is that there were no fences or warning signs preventing access to the construction area from the loading-dock door used by Rishel.¹  In addition, A.P.'s witness did not know whether any warning sign had been posted on the inside of the door, which he thought was the College's responsibility.   Under those circumstances, we cannot say as a matter of law that a reasonable jury could not find that A.P. was negligent.

Reversed and remanded.

FOOTNOTES

FN1. A.P.'s witness occasionally referred to fences.   It appears to us that those references apply to adjacent areas, and not the area outside the loading-dock door at issue here.   In any event, Rishel's testimony was that there were no fences or warning signs.   We are required to give plaintiffs the benefit of all favorable inferences.   R. 4:46-2(c).  Consequently, we decide the appeal on the assumption that there was no fence between the door through which Rishel exited and the parking lot in which he fell.   We note that the motion judge did not outline the factual basis of his decision, despite the requirements of R. 4:46-2(c) and R. 1:7-4..  FN1. A.P.'s witness occasionally referred to fences.   It appears to us that those references apply to adjacent areas, and not the area outside the loading-dock door at issue here.   In any event, Rishel's testimony was that there were no fences or warning signs.   We are required to give plaintiffs the benefit of all favorable inferences.   R. 4:46-2(c).  Consequently, we decide the appeal on the assumption that there was no fence between the door through which Rishel exited and the parking lot in which he fell.   We note that the motion judge did not outline the factual basis of his decision, despite the requirements of R. 4:46-2(c) and R. 1:7-4.

PER CURIAM