BRADBY v. [And Other Third-Party Actions] (2023)

Order, Supreme Court, New York County (Lynn R. Kotler, J.), entered June 22, 2023, which granted plaintiff's motion for leave to reargue that branch of defendant Structure Tone, LLC's (defendant) motion for summary judgment dismissing the complaint, and, upon reargument, denied that branch of defendant's motion, unanimously affirmed, without costs.

This personal injury action stems from plaintiff being electrocuted while installing an under-cabinet lighting fixture at a construction project in New Jersey.  Defendant was the general contractor for the project.  Under New Jersey law, defendant owed plaintiff “a duty to exercise ordinary care to render reasonably safe the areas in which [it] might [have] reasonably expect[ed] [plaintiff] to be working” (Sanna v. Natl. Sponge Co., 209 N.J.Super. 60, 66, 506 A.2d 1258 [App.Div.1986];  see Pfenninger v. Hunterdon Cent. Regional High Sch., 338 N.J.Super. 572, 583, 770 A.2d 1173 [App.Div.1999], mod 167 N.J. 230, 770 A.2d 1126 [2001]).  Imposing a duty under such circumstances is consistent with the “more modern approach to the traditional common law rule” followed by New Jersey courts (Tarabokia v. Structure Tone, 429 N.J.Super. 103, 113, 57 A.3d 25 [App.Div.2012], cert denied 213 N.J. 534, 65 A.3d 260 [2013];  see Alloway v. Bradlees, Inc., 157 N.J. 221, 233, 723 A.2d 960 [1999];  see also Carvalho v. Toll Bros. & Devs., 143 N.J. 565, 572–573, 675 A.2d 209 [1996]).  Contrary to defendant's contention, plaintiff does not seek in this case to hold defendant vicariously liable for the negligence of an independent contractor;  rather, he seeks to hold defendant liable for what he alleges to be defendant's own active negligence.  Accordingly, the general rule under New Jersey law that a party may not be held liable for an independent contractor's negligence in the performance of the contract absent three specified exceptions, articulated in (Majestic Realty Assoc., Inc. v. Toti Contr. Co., 30 N.J. 425, 430–431, 153 A.2d 321 [1959]), is inapplicable to this case.  Nor did Tarabokia graft onto Majestic a fourth exception to that general rule;  rather, insofar as defendant relies upon it, Tarabokia restated well-settled “ ‘general negligence principles’ ” under New Jersey law (429 N.J.Super. at 112, 57 A.3d 25, quoting Alloway, 157 N.J. at 230, 723 A.2d 960).

Given the existence of this duty running from defendant to plaintiff, Supreme Court properly identified issues of fact as to whether defendant had constructive notice of the dangerous condition on the premises that caused plaintiff’s injury.  Among other things, the parties dispute the nature of defendant's role on the project (plaintiff claims that defendant actively and actually exercised control over the work, while defendant urges that it had nothing more than general supervisory control over the worksite);  the length of time for which the electrical panel box at issue had been installed and uncovered;  and whether the box being uncovered and accessible to other trades violated defendant's site specific safety plan.  Plaintiff also urges that the box being uncovered violated Occupational Health and Safety Administration (OSHA) regulations, which, although not dispositive of defendant's negligence under New Jersey law, may be some evidence of its negligence (see e.g. Alloway, 157 N.J. at 236, 723 A.2d 960;  Tarabokia, 429 N.J.Super. at 120, 57 A.3d 25;  Costa v. Gaccione, 408 N.J.Super. 362, 369–370, 975 A.2d 451 [App.Div.2009]).

We have considered defendant's remaining arguments and find them unavailing.