A precedential appeals court ruling may provide a blueprint for general contractors to avoid liability for injuries to subcontractors’ employees.
The Appellate Division held on Nov. 16 in Tarabokia v. Structure Tone, A-3822-11, that a worker cannot recover for nerve damage allegedly caused by use of a power tool supplied by his direct employer, the electrical subcontractor on a construction project.
There was no contractual relationship between the subcontractor and general contractor, nor any other basis for making the latter responsible for preventing “the type of unforeseeable harm suffered by plaintiff,” the court said.
In 2008, defendant Structure Tone was overseeing a five-floor construction project at a Plainsboro office building. Under its contract with the property owner, Structure Tone implemented a safety management plan that gave it general authority over safety issues but provided that subcontractors were responsible for safe practices and conditions.
When Structure Tone hired Hatzel & Buehler as the electrical contractor, the two issued purchase orders but did not execute a written contract. Plaintiff Raymond Tarabokia Jr., a recent Hatzel & Buehler hire, used a Hilti DX 351 tool to set anchors in the concrete ceiling to support light fixtures. The tool, powered with gunpowder charges, is shaped and recoils like a firearm. Tarabokia received manufacturer training on the tool and attended weekly general safety meetings conducted by Hatzel & Buehler.
Tarabokia operated the DX 351 using a pole extension — allowing him to stand on the ground rather than repeatedly climb a ladder — but neglected to wear anti-vibration gloves. He incorrectly held it overhead, creating additional pressure on his arms during recoil.
Tarabokia fired the device about 20 times an hour for eight hours a day over the course of a month. After a month, he experienced worsening wrist pain and was removed from the job.
Because of the repetitive motion, Tarabokia, then 35, suffered nerve damage in both wrists and arms. He now is unable to work with his hands and is on Social Security disability.
Barred by workers’ compensation from suing his own employer, Tarabokia claimed Structure Tone breached a nondelegable duty to ensure worker safety, failing to provide protective equipment required by the Occupational Safety and Health Administration.
Middlesex County Superior Court Judge Richard Rebeck granted Structure Tone summary judgment, finding no duty owed and no factual disputes.
Structure Tone wasn’t responsible for Hatzel & Buehler’s means and methods and wasn’t on notice that a tool was being misused, Rebeck said.
Appellate Division Judges Anthony Parrillo, Jack Sabatino and Susan Maven affirmed. “Under these circumstances, we find no basis in the record to impose a duty of care upon defendant that would essentially require its active involvement in the details of its subcontractors’ business,” Parrillo wrote.
The panel distinguished Alloway v. Bradlees, 157 N.J. 221 (1999), and Cavalho v. Toll Brothers and Developers, 143 N.J. 565 (1996), where courts have found a general contractor owed a duty to a subcontractor’s employee.
In those cases, the injuries were clearly foreseeable, and the general contractor had a contractual or special relationship with the subcontractor furnishing direct supervisory authority over construction equipment and knew about or helped create the dangerous condition. “This case presents a very different factual scenario,” Parrillo wrote.
The risk of harm was not foreseeable because Structure Tone apparently was unaware that Tarabokia was incorrectly handling — or even using — the DX 351, or that such use could result in repetitive-motion injury, the court said.
Even though Structure Tone did daily safety inspections, “the risk here was not immediately obvious and did not involve an unsafe or hazardous physical condition on the premises,” Parrillo wrote.
Structure Tone’s relationship with Hatzel & Buehler was governed by simple work orders rather than a contract, and the site safety plan charged subcontractors with ensuring the safety of their own workers, the court said.
While constructive notice of a dangerous condition may establish duty “as a matter of fairness and policy,” the “evidence here … presents no occasion to draw that inference,” Parrillo said.
In addition, a possible violation of OSHA regulations, by itself, is not enough to establish duty, Parrillo noted, saying there’s no evidence an OSHA investigation was conducted.
Dennis Brotman of Fox Rothschild in Princeton, Tarabokia’s lawyer, says the decision “calls into question whether there can be accidents where no one is responsible for safety oversight,” “reduces the rights and protections of construction workers” and renders meaningless an industry standard assigning general contractors with a nondelegable duty to ensure work-site safety.
Brotman says he might appeal because “I think it’s a jury question whether or not [Structure Tone] knew or should have known he was operating the tool in an improper position.”
Structure Tone’s lawyer, James Lisowicz of Coughlin Duffy in Morristown, did not return a call.