Kenneth S. Merber & Peter J. LoPalo Obtained Summary Judgment in a Construction Accident Suit in Hudson County, NJ

November 14, 2019

On October 29, 2019, Kenneth S. Merber and Peter J. LoPalo obtained summary judgment in favor of GVK’s client in a lawsuit filed in Hudson County Superior Court.  Plaintiff alleged that he sustained significant life altering injuries to his feet while working on a construction project in Jersey City, New Jersey. Our client was the general contractor/construction manager of the project.  Plaintiff was employed by a subcontractor that was hired to install paving stone walkways around the premises.  Plaintiff severely burned both of his feet while working with hot asphalt at the direction of the landscape contractor’s supervisor. Plaintiff received and continues to receive treatment for his injuries. He claims he will require the amputation of at least one of his feet

GVK’s attorneys argued that as general contractor, our client was not negligent and did not breach a duty of care owed to Plaintiff. They maintained that we did not control the means and methods of Plaintiff’s work that led to Plaintiff’s injuries.  Ken and Peter further argued that pursuant to the contract entered into between the Landscape subcontractor and the defendant, and the terms of a stipulation negotiated in the related declaratory judgment action, GVK’s client was entitled to contractual indemnification and reimbursement of attorneys’ fees from the landscape subcontractor. As well as a finding of breach of contract for the landscape contractor’s failure to procure insurance naming the defendant as an additional insured on a primary non-contributory basis.  Peter and Ken successfully argued that the Doctrine of Res Judicata barred the contractor’s arguments and claims inconsistent with the terms of the stipulation negotiated by its general counsel.

Consequently, the Court ruled that pursuant to the controlling legal standard, a general contractor is not liable for injuries sustained by a subcontractor’s employee unless said general contractor controls the manner and means of doing the work contracted for.  The Court rejected the arguments of Plaintiff and the landscape subcontractor, that a general contractor owes a non-delegable duty to maintain a safe workplace and to proactively inspect the site for the minimal details of the work and how it is performed. The Court also dismissed all cross-claims asserted against the defendant. The Court directed the subcontractor (through its insurer) to reimburse GVK’s clients for the costs, expenses and legal fees they incurred defending the lawsuit.