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New Jersey Supreme Court Affirms Heightened Standard to Measure Worker Negligence

On October 9, 2004 Rolondo Fernandes was working as a plumbing laborer on a $700,000 residential construction project in Warren, New Jersey. The general contractor on the project was DAR Construction Company (“DAR”). DAR hired plaintiff’s employer, C. Freitas Plumbing to install a 700 foot long sewer line from the street to the house. This required the digging of a 700 foot trench that varied in depth from 4 feet to 8 feet. On the last day of the project, plaintiff was in a 5 foot trench when it suddenly and without warning collapsed, burying Fernandes to his waist. He was pinned for 20 minutes.

Fernandes’ counsel, Gerald H. Clark, Principal of the Clark Law Firm, PC argued that the general contractor had a non­delegable duty to manage safety and enforce the federal OSHA regulations. Clark argued this required the trench be protected from cave ins. Counsel for the general contractor argued its client acted reasonably and had the right to rely on the experience of its subcontractor, C. Freitas Plumbing. At the time of the incident the owner of C. Freitas had been digging the trench; the general contractor was not on site.

Clark presented testimony that DAR and Freitas had worked together for many years and rarely if ever did they require their plumbing trenches be shored to protect workers. Clark showed that DAR and Freitas had a practice of not following OSHA regulations in order to speed up the jobs and maximize profits. This included the following testimony from the DAR project manager, Norberto Jeansalle:

Mr. Clark: “Making the job move fast and maximizing the profit is more important to DAR than worker safety, isn’t that right?”

Mr. Jeansalle: “To speed up the work and maximize profits, is that what you’re asking?”

Mr. Clark: “Yes.”

Mr. Jeansalle: “Yes, correct.”

­– Sworn Trial Testimony of DAR Project Manager, Norberto Jeansalle February 1, 2011

Plaintiff did not receive treatment for three days after the accident and was ultimately diagnosed with pelvic fractures. He later underwent a hip replacement surgery and has been out of work since the accident. Defendant contested the nature and extent of plaintiff’s injuries, denied that the hip replacement was due to the accident and maintained that he is employable. Clark countered that defendant’s medical expert, Edward M. Decter, MD, earned $2,036,000 from 2008­ – 2010 giving similar canned testimony in other cases. Clark also showed at trial that Decter and/or his wife own over $23,000,000 of stock in ExamWorks, Inc. a publicly traded company that holds itself out as a leading provider of defense medical exams for the insurance industry.

The case was tried over a seven day period in Essex County Superior Court before the Honorable Thomas Vena, JSC. The verdict was rendered on February 4, 2011 and molded for medical bills to $892,000.

Rolondo Fernandes was represented at trial by Gerald H. Clark, Esq. of Clark Law Firm, PC.

Counsel for DAR filed an appeal of the Trial Court’s decision to not ask the jury if Fernandes was also negligent. DAR hoped a jury finding that Fernandes was negligent would reduce or eliminate any recovery. DAR argued Fernandes was an experienced plumber that dug hundreds if not thousands of trenches for 19 years. It argued he was well aware of the dangers of trench collapses and it was his decision to not use trench protection.

Clark argued on behalf of Fernandes that there was insufficient evidence at trial that Fernandes was at fault for his injuries. The evidence showed Fernandes had no meaningful choice in the matter; he either dug the trench as he was instructed or risk being sent home. Basic safety rules were not enforced on the worksite, he had no safety training, and there was no evidence Fernandes unreasonably proceeded in the face of a known danger.

The Appellate Division affirmed the trial Court ruling in an unpublished decision dated November 15, 2012. The Court found, “defendant 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 Appellate Division decision at 10. DAR took issue with this finding which the Supreme Court agreed to review.

The Supreme Court rendered its decision today. The Court affirmed the decision of the Trial and Appellate Court that under all the circumstances, it was correct to not charge comparative negligence to the jury. It was correct to not allow his recovery to be reduced by an argument that he caused his own injury.

The Supreme Court reaffirmed longstanding state and federal law that a general contractor on a work site has a responsibility to enforce basic safety rules to prevent needless injuries to workers and others that may come on or near a work site. This responsibility is “non-­delagable” and can not be pushed off to another contractor on the job.

The Supreme Court also recognized that in a workplace setting case, there is a heightened standard to determine comparative negligence. The High Court ruled, “The relevant inquiry in gauging the level of an employee’s responsibility for his or her injuries is whether he or she failed to use the care of a reasonably prudent person under all of the circumstances, either in continuing to work in the face of a known risk or in the manner in which he or she proceeded in the face of that known risk…. The issue of a plaintiff’s negligence may only be submitted to the jury when the evidence adduced at trial suggests that a worker acted unreasonably in the face of a known risk and that conduct somehow contributed to his or her injuries.”

The Court noted “a man or woman who must work to live is not necessarily negligent when he or she proceeds with an assigned task after learning of a hazard… The demands of employment, and the reality of the power imbalance between employer and employee, may therefore be considered in determining whether an employee acted prudently in continuing to perform his or her assigned task in the face of a known risk…. Subsumed into that analysis, therefore, is whether the plaintiff unreasonably confronted a known risk and whether he had a “meaningful choice” in the manner in which he completed his assigned task.” Against this backdrop, the Court found plaintiff’s comparative negligence was correctly not submitted for the jury’s consideration.

Gerald Clark, counsel for Rolondo Fernandes commented, “this is an important decision which affirms the importance of basic safety rules being followed on work sites. When contractors cut corners on these rules in order to outbid the competition, people are needlessly endangered. This places powerful economic pressure on scrupulous contractors to do the same thing or risk getting out bid. This is bad for business and bad for society. OSHA and industry work safety rules were meant to protect workers. The evidence in this case showed the general contractor made a conscious decision to disregard these rules. When the worker sought help in the justice system to make up for the harms and losses, this same contractor turned around and tried to blame him for what happened.”

Clark further commented, “The Supreme Court found the facts here did not justify blaming the worker under our laws. This is a common sense decision which strikes the correct balance between holding contractors that try to bypass safety rules responsible while encouraging laborers to work as safely as the bosses will allow them to.”

Clark further commented, “this is an important result for our client and good for society. It is important that corporations follow the same rules the rest of us live by. Hopefully the profit was taken out of breaking the rules in this case. We hope that we have done our part here to change corporate practice and keep the economic playing field level and fair. Ultimately this kind of thing results in fewer victims and fewer lawsuits.”


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