Appellate Division Holds OSHA Regulations Relevant in Negligence Case

Adrienne Rogove 

rogoveaThe recent decision of the New Jersey Appellate Division in Lopez-Montes v. Final Kote, LLC, Docket No. A-1592-14 (App. Div. Dec. 16, 2016) is instructive on the issue of how building codes and other regulations affect the liability of parties for construction site injuries. In Lopez-Montes, the plaintiff was a drywall subcontractor who was engaged to perform taping and spackling work on a construction project. The subcontractor responsible for installation of the sheetrock had previously supplied scaffolding at the job site, but no scaffolding was available when plaintiff was performing the taping and spackling work. Plaintiff stated that he objected to using a ladder due to safety concerns, but was told to use the ladder anyway.

Plaintiff fell from a makeshift ladder scaffold while performing taping and spackling activities following the installation of the sheetrock, sustaining serious injuries. Although plaintiff’s contract to perform taping/spackling was oral, he argued that the construction contract between the owner and the general contractor required the general contractor to, inter alia, supervise the construction, perform the work in accordance with the plans and specifications, maintain job site safety, and comply with all applicable national, state, and local building codes and laws. Plaintiff produced an expert report which concluded in part that the general contractor and sheetrock installation subcontractor violated industry standards and OSHA regulations by failing to supply appropriate scaffolding and failing to maintain safe working conditions. Nevertheless, the trial court granted summary judgment to the owner, general contractor and sheetrock installation subcontractor.

On appeal, the Appellate Division discussed the duty of care owed by defendant contractors to a subcontractor’s employee. In determining the scope of that duty, the Appellate Division, quoting Hopkins v. Fox & Lazlo Realtors, 132 N.J. 426 (1993), stated that the applicability of federal safety regulations, specifically OSHA regulations, is highly relevant. While violations of OSHA regulations do not constitute negligence per se, such evidence is sufficient to overcome a motion for summary judgment. Based on this record, the Appellate Division reversed the summary judgment order as to the general contractor and sheetrock subcontractor, and remanded the case for trial.

Since most construction contracts require compliance with federal, state, and local building codes, based on the Appellate Division’s decision, any failure to adhere to those codes and regulations may expose general contractors and subcontractors to liability for job site injuries, as well as for defective work resulting from the failure to comply with applicable codes.

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