()

The 20th century in America was marked by more injuries and deaths from unsafe workplaces than from wars; the 1911 New York City Triangle Shirtwaist Factory fire was a “poster child” incident that demonstrated the need for serious reform. Linder, Marc. “Fatal Subtraction: Statistical MIAs on the Industrial Battlefield,” 20 J. Legis. 99 (1994).

In response to this kind of incident and related death and injury statistics, in 1970 the United States Congress enacted the Occupational Safety and Health Act (OSHA) to “assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources.” 29 U.S.C.A. §651(b). The OSHA Act requires contractors to provide a workplace “free from recognized hazards that are … likely to cause death or serious physical harm.” 29 U.S.C.A. §654(a).

OSHA and the industry safety standards recognize that in order for meaningful workplace safety and injury prevention to occur, there must be a top-down requirement to manage safety. 29 C.F.R. §1926.16 (“In no case shall the prime contractor be relieved of overall responsibility for compliance with …” managing and enforcing OSHA work safety rules); Associated General Contractors of America, Manual of Accident Prevention for Construction, 9th Edition, Ch. 1 (detailing management’s responsibility for job safety); American National Standards Institute, Standard A10.33-1992. OSHA was passed because contractors would risk the lives of workers rather than invest in safety.

New Jersey courts have also long recognized that a general contractor on a worksite, as well as each tier of subcontractor, has a joint, nondelegable duty to manage safety and enforce the OSHA rules on the job. Alloway v. Bradlees, 157 N.J. 221, 237-238 (1999), citing 29C.F.R. §1926.16(b). The “non-delegable” part of this calculus is critical. Without it, the responsibility would almost always get delegated by contract down the chain, ultimately to the direct employer, who is immune from tort liability under exclusive remedy provisions of the Workers Compensation Act. N.J.S.A.34:15-1, et seq. Any erosion in this principle results in a corresponding erosion of safety. Job site injuries arising from violation of this duty has long been a recognized basis for tort liability and taking the profit out of breaking safety rules. Id.; Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 448 (1993).

In the short term, compliance with safety rules costs money and takes time to implement. But in the long run, it saves money in lost productivity, medical and life-care treatment, and other intangible ways. Contractors will look to save short-term costs by cutting corners on safety and, in many cases, ignoring the rules altogether. See, e.g., Costa v. Gaccione, 408 N.J. Super. 362, 367 (App.Div. 2009); Fernandes v. DAR Development, 22 N.J. 390, 398 (2015).

Indeed, as far back as the end of the 1930s, the National Safety Council recognized the “time is money” mentality in the construction industry. The Fernandes court noted that the plaintiff’s work safety expert, “opined that DAR increased its profits by regularly hiring unscrupulous subcontractors who did not adhere to OSHA standards.” Fernandes at 399. In fact, in the Fernandes trial, the general contractor’s project manager admitted, “Making the job move fast and maximizing the profit is more important to DAR than worker safety.” (Fernandes Trial Transcript #7, at 69, Feb. 1, 2011.)

Contractor defendants frequently rely on Tarabokia v. Structure Stone, 429 N.J. Super. 103 (App.Div. 2012), to argue they in fact do not have a duty to manage safety. Tarabokia addressed a very narrow set of facts whereby a worker on a highly OSHA compliant worksite suffered a repetitive stress injury over the course of several weeks from the use of an otherwise safe tool for which the worker was trained and certified to operate. The general contractor was granted summary judgment primarily based on a lack of forseeability.

The plaintiff in Tarabokia was relying on a weak set of facts and his ultimate failure to prevail is not surprising. Fernandes is significant because it dispels any argument that Tarbokia represents a shift away from the long-standing nondelegable duty of contractors to manage safety. Among other things, the court in Fernandes noted that the defendant’s liability expert, “acknowledged that, in accordance with the Act, a general contractor has a nondelegable duty to ensure the safety of a workplace.” Id. at 400. The court also noted the jury was charged that a general contractor has a nondelegable duty to maintain a safe workplace. The court specifically stated, “[A] general contractor is expected to protect its workers from the myriad of potential dangers encountered on a construction site ‘so far as possible.’” Fernandes at 411, citing 29 U.S.C.A. §651(b). And further, “[T]he [OSH] Act places the burden of deciding when and where to take protective measures squarely on [the direct employer and] the general contractor.” Fernandes at 413.

The Fernandes reaffirmation of the nondelegable responsibility for safety works to reduce the level of danger in the community. It discourages the perceived profit motive to cut corners on safety. The fact of the matter is that if courts do not hold contractors responsible for this kind of thing, then scrupulous contractors will be economically compelled to do the same thing or risk being outbid. Linder, Marc.20 J. Legis. at 104 (1994) (‘”It must be frankly accepted that the most efficient method of prosecuting work is not always the safest.” Conversely, the “safe builder is … put at a disadvantage in bidding….”‘) The misguided argument that contractors no longer have a duty to manage safety has been properly extinguished in Fernandes.

OSHA was enacted to protect workers by imposing affirmative safety obligations on contractors. But those same contractors will try to avoid that responsibly by blaming the very workers those standards were meant to protect. Workers with no safety training and no mechanism to complain often have no real choice in the matter. Green v. Sterling Extruder Corp., 95 N.J. 263, 271 (1984) (“The practicalities of the workday world are such that in the vast majority of cases, the employee works ‘as is’ or he is without a job.”). Fernandes recognizes these realities and makes it harder for defendants to prevail on “blame the worker” comparative negligence arguments.

In Fernandes, the court denied the plaintiff’s motion in limine to bar comparative negligence. The defendant thus presented evidence and argued that the plaintiff was a veteran plumber who dug thousands of trenches and was well aware of the danger. The plaintiff had been in charge and watched the same trench collapse several times in the prior days. Fernandes chose not to use the available trench protection he used on other jobs. At the close of evidence, the trial court decided these facts were insufficient to sustain a comparative negligence claim and removed the issue from the jury. A $500,000 settlement offer was rejected, and the jury returned a verdict of $892,000.

In affirming, the Appellate Division applied a heightened comparative negligence standard, ruling:

[D]efendant failed to present competent evidence that at the time of the accident, plaintiff voluntarily and unreasonably proceeded in the face of a known danger—which is the standard against which an injured construction worker’s conduct is measured. Green v. Sterling Extruder Corp., 95 N.J. 263, 270 (1984); see also Suter v. San Angelo Foundry & Mach. Co., 81 N.J. 150, 167 (1979). Therefore, the trial court did not err when it declined to charge the jury on comparative negligence.

Fernandes v. DAR, 2013 WL 2660745 *10 (App. Div. June 14, 2013).

In its petition for certification to the Supreme Court, DAR characterized this heightened standard in favor of workers as a dramatic departure from “twenty years [of] settled law” and a “more stringent standard governing the availability of the comparative negligence defense for contractors in construction accident actions.” DAR argued that rather than ask whether the worker, “unreasonably proceeded in the face of a known danger [the Court instead should have considered] whether he exercised reasonable care in entering the trench without safety equipment, given his knowledge and experience.” DAR pointed out that this new standard, “subjects DAR and similar contractors to enhanced liability (approaching strict liability) and diminished defenses, marking a dramatic shift in the law.”

The Supreme Court affirmed this heightened standard and found the otherwise compelling evidence of worker fault was insufficient to overcome it. Although the Fernandes court declined to establish a bright-line rule that comparative negligence should never be allowed in workplace injury cases, it significantly raised the bar. It borrowed concepts from aline of cases based on Suter v. San Angelo Foundry & Mach. Co., 81 N.J. 150 (1979), including considerations of whether the worker “unreasonably confronted a known risk” and whether he “had a meaningful choice” in the matter. Fernandes at 412.

The court noted Fernandes had no work safety training from the general contractor or his direct employer. Thus, even though this highly experience plumber knew the trench was unstable, had elected to use the available trench protection many times in the past, and was well aware of the dangers of unprotected trenches, “his behavior must be evaluated against that of a reasonably prudent person in his exact circumstances, and that evaluation includes whether he had a meaningful choice in the manner in which he performed his assigned task on that day.” Fernandes at 413.

OSHA was passed to protect workers from contractors that compromise safety for profits. Fernandes v. DAR is important because it reaffirms the top-down, non-delegable duty to manage safety. It also makes it more difficult for contractors to escape liability for ignoring these rules by blaming workers. This important decision reduces the level of danger to workers and others that come near construction projects in New Jersey. Ultimately, this will result in fewer victims, fewer lawsuits and a safer New Jersey. •