Loosening The Slack On Slack

A recent decision by the New Jersey Superior Court, Appellate Division, provides important clarification on when a property owner that serves as its own general contractor on a construction project can be held liable for safety violations and injuries to subcontractor employees. Costa v. Gaccione, _____N.J.Super._____(Approved for Publication July 31, 2009) involved a construction accident case where the plaintiff suffered injuries when he fell from makeshift scaffolding. The evidence reflected that there were no safety rules or practices on the job, no one was in charge of safety and OSHA construction site safety regulations were not enforced. The Law Division dismissed all claims against the landowner/general contractor, Salvatore Gaccione, on the basis that he had no duty to manage safety or enforce the OSHA regulations on the project. The Court reasoned that under the case Slack v. Whalen, 327 N.J. Super. 186 (App. Div. 2000), as a residential landowner Gaccione had no duty to enforce OSHA or mange safety.

Prior to the Slack case, New Jersey law was clear the general contractor has a non-delegable duty to maintain a safe worksite that includes “ensur[ing] ‘prospective and continuing compliance’ with the legislatively imposed non-delegable obligation to all employees on the job site, without regard to contractual or employer obligations.” Alloway v. Bradlees Inc., 157 N.J. 221, 237-38 (1999), citing, Kane v. Hartz Mountain, 278 N.J.Super. 129, 142-43 (App. Div. 1994) State public policy and OSHA impose a duty on the general contractor to ensure the protection of all of the workers on a construction project, irrespective of the identity and status of their various and several employers, by requiring, either by agreement or by operation of law, the designation of a single repository of the responsibility for the safety of them all. Alloway, 157 N.J. at 238, citing Bortz v. Rammel, 151 N.J.Super. 312, 321 (App. Div. 1977), cert. den. 75 N.J. 539. As a matter of public policy and federal law, the general contractor is the single repository of responsibility for the safety of all employees on the job. Meder v. Resorts International, 240 N.J.Super. 470, 473-77 (App. Div. 1989), cert. den. 121 N.J. 608; Kane, 278 N.J.Super. at 142-43; Dawson v. Bunker Hill Plaza Assocs., 289 N.J.Super. 309, 320-21 (App.Div.1996).

The same was essentially also true for landowners who chose to serve as their own general contractors on a construction project. Bozza v. Burgener, 280 N.J.Super. 583, 586-87 (App. Div. 1995); Meder v. Resorts International, 240 N.J.Super. 470 (App. Div. 1989), cert. den. 121 N.J. 608; see also Kane, 278 N.J.Super. at 134-35, 142-43 (owner serving as general contractor had non-delegable duty for safety on jobsite). As the Appellate Division explained in Bozza:
In Meder v. Resorts International, 240 N.J.Super. 470 (App.Div. 1989), cert. den. 121 N.J. 608, we held the landowner liable because the owner was also acting as the general contractor and, as such, had failed to provide a safe workplace. We concluded the landowner was responsible for injuries sustained by an employee of a sub-contractor because the landowner had failed to comply with the applicable regulations of the Occupational Health and Safety Administration (OSHA). Id. at 477. A similar situation existed in Kane. There, the landowner, Hartz Mountain Industries, Inc., was also the general contractor and, as such, had a non-delegable duty to maintain a safe workplace including compliance with applicable OSHA regulations. 278 N.J.Super. at 142-43.

Bozza, 280 N.J.Super. at 586-87 (App. Div. 1995) (citations abridged) The case of Slack v. Whalen, 327 N.J. Super. 186 (App. Div. 2000) represented something of a departure from this otherwise longstanding law. In Slack the court ruled for various reasons that the landowner/general contractor had no duty for safety and the injured worker’s claim was dismissed on summary judgment.

The Slack case is frequently cited for the proposition that a general contractor owes no duty to manage safety or enforce the federal OSHA regulations. Typically toward the end of a construction accident case, after extensive discovery and litigation, often a “Slack” summary judgment motion will be made and the argument will be advanced that the general contractor owes no duty for safety to the workers. In the case of a landowner serving as a general contractor, this motion is made even more frequently.

The Costa v. Gaccione opinion is significant because it substantially clarifies the limits of Slack v. Whalen, 327 N.J. Super. 186 (App. Div. 2000). In Slack, defendants Tom and Margaret Whelan owned a modest residential lot in Warren County on which, one can infer, they endeavored to build their “dream home.” They retained Trident Builders, a professional general contracting firm, to serve as the general contractor on the job. At some point during the project Trident failed to perform and the Whelans, who had no experience in building a home, were forced to complete the project on their own. Id. at 188. The Court found based on the specific facts of the case that the homeowners had no legal duty to exercise reasonable care for the employee’s safety at the work site since defendants had no opportunity or capacity to exercise control over the manner or means by which plaintiff chose to perform the spackling work. Id. at 194.

Although the Appellate Division noted the facts of Costa and Slack are similar, it made clear that Slack v. Whalen addressed a narrow set of facts. The Court pointed out that in Slack, the owners hired a professional general contracting firm to oversee and manage the project. It was only after the firm reneged on its contract, that the Whelans were thrust into the position of having to finish the construction of their home on their own while not having any prior experience in construction. The Court ultimately found in fairness, under the specific facts of that case, that the liability duties imposed on general contractors should not be imposed on them as the unwitting homeowners who got involved in finishing the construction project only after their general contractor abandoned them.

The Appellate Division distinguished Slack which did not involve the more common situation presented in Costa where a person makes an affirmative choice from the outset to serve as his own general contractor on a residential construction project. The Court stated that, “Slack represents an exceptional situation where this Court held that the property owners could not be held liable as general contractors due to the specific factual circumstances.” Taking into account the volitional act of Gaccione to serve as his own general contractor, the obligations imposed under the OSHA federal workplace regulations, and the particular facts of the case, the Court found under a fairness analysis that the defendant should be held accountable and the summary judgment decision of the trial court was reversed.

The Slack case has been the impetus behind a substantial amount of summary judgment motion practice and confusion. The Slack opinion represented something of a departure from the prior case law concerning the duty of a general contractor for construction site safety and OSHA enforcement. The Costa opinion substantially clarifies the application and reach of Slack and represents an important contribution to the legal question about the duty for construction site safety and OSHA enforcement of a landowner that also serves as its own general contractor. In fact, the Slack opinion is nearly 10 years old and until Costa v. Gaccione, no published decision had discussed nor cited to it.

*The Author is a Member of the Keefe law firm in Red Bank, N.J. and was counsel for the appellant in the Costa v. Gaccione case. His practice specializes in personal injury, product liability, workplace accident and class action litigation.

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