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Fernandes v. DAR Development Corp.

The New Jersey Supreme Court Clarifies the Responsibility of Contractors and Employees

By: Jared Placitella
Sept. 11, 2015

In a recent unanimous decision, the New Jersey Supreme Court held that in negligence claims by injured workers against third parties, an employee’s alleged contributory negligence may only be considered by the jury when the evidence presented shows that the injured employee unreasonably confronted a known risk and had no meaningful choice in the matter in which he completed that task. Subsumed in that inquiry, the Court explained, that the demands of employment and the reality of the power imbalance between employer and employee, should be considered. The Court further found that under OSHA, a contractor supervising the work, and not the employee, has the non-delegable duty of deciding when and where to take protective measures. Indeed, the Court explained that trial courts may look to OSHA as well as to other codes and regulations adopted by the Legislature or state and federal agencies, and even to standards adopted by professional organizations, to discern a contractor’s standard of care in any given case, and whether the contractor’s actions breached that standard. Violations of these regulations may be considered by the jury in determining whether a contractor acted negligently, if the injured employee is a member of the class for whose benefit the standard was established.


In Fernandes v. DAR Development Corp., No. A-37-13 (N.J. July 28, 2015), the plaintiff was installing a sewer pipe on a residential construction site when the wall of the trench in which he was working collapsed, causing debilitating injuries. Before the Supreme Court, the issue raised by the defendant general contractor was whether the trial court erred by not permitting the jury to consider the plaintiff’s alleged contributory negligence in causing the accident because despite the plaintiff’s extensive excavation experience and his understanding of the hazards associated with trench excavation, he nevertheless failed to use necessary trench protection. But the Supreme Court agreed with the trial judge, and held that under the facts presented, the plaintiff’s alleged contributory negligence could not be considered by the jury.

The High Court began its analysis by stating that in negligence claims involving workplace accidents, the plaintiff must first produce expert testimony to establish the standard of care owed by the defendant and to explain how the defendant’s actions departed from that standard. The standard of care owed by a defendant in these cases, the Court noted, is derived from many sources, such as (1) codes adopted by the Legislature; (2) regulations adopted by state and federal agencies; and (3) standards adopted by professional organizations. Especially relevant in Fernandes, the Court emphasized that although federal regulations permit general contractors and subcontractors to make their own agreements with regard to the division of labor, OSHA mandates that “in no case shall the prime contractor be relieved of overall responsibility for compliance with the requirements . . . for all work to be performed under the contract.” Although a violation of OSHA regulations is not per se dispositive of negligence, the Court explained, such a violation may be evidence of negligence to be considered by the jury, if the plaintiff is a member of the class whose benefit the standard was established. In workplace injury cases, that arguably would be any employee on the worksite because as highlighted by the Supreme Court, OSHA was enacted “to assure so far as possible every working man and woman in the Nation safe and healthful working conditions” by “encouraging employers and employees in their efforts to reduce the number of occupational safety and health hazards at their places of employment.”

If the defendant’s negligence is found to have caused the plaintiff’s injuries, then the jury may consider whether the plaintiff’s own negligence contributed to his injury only if the defendant proves that the plaintiff’s actions contributed to the accident or was a “substantial contributing factor to the injuries sustained.” The relevant inquiry for the Court in deciding whether to permit this evidence 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.” Crucial to this inquiry, however, is that an employee is not necessarily negligent when proceeding with an assigned task after learning of a hazard. As explained by the Supreme Court:

The demands of employment and the reality of the power imbalance between employer and employee, may . . . 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 . . . 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.

Put differently, even if the employee is aware of the potential risks of completing an assigned task, that employee will not be partly responsible in causing his own injury if he is presented with no other meaningful alternative to complete the work.

In Fernandes, the Supreme Court found that the trial court properly did not permit such evidence to be presented before the jury because the record did not show that the plaintiff knew the particular way in which the trench would collapse, but rather demonstrated that he received no training about workplace safety from the general contractor or his employer, and that he had no opportunity on the day of the accident to independently assess the stability of the trench. Further, the Court explained, regardless of the plaintiff’s years of experience or actual knowledge about the dangers of this particular excavation, OSHA places the burden of deciding when and where to take protective measures squarely on the supervisor or “competent person” on the jobsite: in this case, the plaintiff’s employer, and on the general contractor.

In sum, the allegedly-contributorily negligent actions of a plaintiff-employee may only be considered by the jury if the Court finds that the plaintiff failed to act with the care of a reasonably prudent person by choosing to complete his assigned task in the face of a known risk, despite having a meaningful choice in choosing to complete that task.

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