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Alloway v. Bradlees Inc.2/24/1999
Argued September 14, 1998
On certification to the Superior Court, Appellate Division.
The opinion of the Court was delivered by
This matter arises from an accidental injury sustained by a worker on a construction site. The injured worker was employed as a driver for an excavating subcontractor that had agreed to deliver crushed stone to a general paving contractor. As she was attempting to unload the crushed stone at the construction site, the worker was injured as a result of a defective mechanical component of the dump truck.
The issue in this appeal is whether a general or prime contractor has a duty to assure the safety of an employee of a subcontractor; and, more specifically, whether that duty encompasses the safety of equipment supplied by the subcontractor and used by its employee at the contractor's work site. In addressing that issue, we must also consider the relevance of statutory and regulatory safety standards governing the responsibilities of employers over workplace safety in determining the existence and the scope of such a duty of care.
I.
In August 1990, American Development Company ("American Development") entered into a construction contract with Shop-Rite of Pennington, Inc. ("Shop-Rite") to renovate and convert the interior of a warehouse building at the Bradlees Shopping Center on Route 206 in Bordentown, New Jersey into a Shop-Rite Supermarket. Vornado, Inc. owned the property and undertook to renovate the exterior of the premises. American Development hired American Management Company ("American Management") and American Refrigeration Company ("American Refrigeration"), two closely related companies, to manage and oversee the interior renovations. American Refrigeration used its employee, James Burlingame, as project manager.
During the renovations, Shop-Rite requested that a special exterior ramp be constructed for loading purposes. Shop-Rite contacted Burlingame to help arrange for the exterior paving work. Burlingame, on behalf of Shop-Rite, contracted with Pat Pavers, Inc. ("Pat Pavers"), an experienced paving and grading contractor. Burlingame informed Shop-Rite that he would oversee Pat Pavers's work, but only as a professional courtesy. He wanted to ensure that Pat Pavers did not damage already completed construction and that the ramp was properly finished.
Pat Pavers relied on its employee, Fred Bernhard, as grading foreman for the paving crews. David Radlinski, another Pat Pavers employee, was placed in charge of mechanical maintenance. Pat Pavers subcontracted with other entities to provide vehicles and drivers to transport paving materials. In particular, Pat Pavers subcontracted with Fred Bernhard Excavating Co. ("Bernhard Excavating"), a company owned by Pat Pavers employee, Fred Bernhard. Plaintiff Terry Alloway was an employee of Bernhard Excavating and drove one of its trucks. Bernhard Excavating provided both truck and driver to Pat Pavers on a per-diem basis.
The contractual relationship between Pat Pavers and Bernhard Excavating was not committed to writing. Bernhard Excavating paid its own drivers, purchased its own insurance, and maintained its own vehicles. Plaintiff received her wages and workers' compensation insurance from Bernhard Excavating and received no compensation or benefits from Pat Pavers.
The dump truck driven by plaintiff has a power take-off system that activates the lifting mechanism to raise the dumpster on the truck. The system is engaged by a button within the passenger compartment of the truck. Plaintiff experienced problems with the power take-off system and the day before the accident discovered that a hydraul
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