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(NOTE: The status of this decision is Unpublished.) NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4066-10T2

RAUL CARNEIRO and MARIA CARNEIRO,

Plaintiffs,

v.

JOHN DEERE DUBUQUEWORKS/ DEERE & COMPANY,

Defendant,

and

JESCO, INC.,

Defendant-Respondent/ Cross-Appellant,

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and

P.M. CONSTRUCTION CORPORATION,

Defendant-Appellant/ Cross-Respondent. ____________________________________________________________ November 15, 2012 Submitted January 25, 2012 - Decided

Before Judges Graves, Harris and Koblitz.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-3522-08.

Paul A. Lisovicz argued the cause for appellant/crossrespondent (Coughlin Duffy LLP, attorneys; Mr.

Lisovicz, of counsel and on the brief; Timothy P. Smith, on the brief).

Loren L. Pierce argued the cause for the respondent/ cross-appellant (McElroy, Deutsch, Mulvaney & Carpenter, LLP, attorneys; Ms. Pierce and William A. Cambria, of counsel and on the brief). PER CURIAM

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1

Plaintiff Raul Carneiro was seriously injured when he was struck by a backhoe while replacing underground water pipes at a construction site in Elmwood Park on April 25, 2007. At the time of the accident, plaintiff was employed by Central Pipe, Inc. (Central Pipe), a subcontractor hired by defendant P.M. Construction Corporation (P.M.), the general contractor for the project and the owner of the backhoe. After the manufacturer of the backhoe, John Deere, was granted summary judgment, plaintiff settled his claims against P.M. and defendant Jesco, Inc. (Jesco), which sold the backhoe to P.M. Therefore, the only remaining issue was the allocation of liability (and plaintiff's damages) between P.M. and Jesco. Following a four day trial, the jury allocated ninety-five percent of the liability to P.M. and five percent to Jesco. P.M. appeals from the order of judgment entered on February 23, 2011, and a subsequent order denying its motion for judgment not withstanding the verdict and a new trial. For the reasons that follow, we affirm. P.M. purchased the backhoe from Jesco in 2002, approximately five years prior to the accident. At the time of purchase, P.M. requested modifications to the rear control console. The modifications performed by Jesco included a "swap-out" of John Deere standard parts for an "alternate lever arrangement" of the backhoe arm controls. At the time of the accident, the backhoe was being operated by Manual Martins (Martins), an employee of Central Pipe. While plaintiff was using a jackhammer to break asphalt, Martins used the backhoe's bucket loader to place the broken asphalt into an adjacent dump truck. As Martins rotated his seat to face the front of the backhoe, the seat came in contact with the control levers for the backhoe arm causing the arm to swing out and hit plaintiff, pinning him against the truck. At trial, Jesco produced an expert, Paul Dreyer, P.E. (Dreyer), who testified to the condition of the control levers. Counsel for P.M. stipulated to Dreyer's expert qualifications. Dreyer testified: "The John Deere installation kit instructions has these levers more vertical and just about centered in the opening in the console. . . . In this case [the levers are] about three and a half inches [shifted] towards the operator." Dreyer further stated, "In my opinion, that was something done deliberately and by design." Dreyer also explained how he tested the backhoe: I did a test myself with the levers in their spring position neutral location. I sat in the seat. I moved it back fully and I rotated it. I moved it back fully and

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I reclined the back of the seat, which is the worst case scenario. I took the lever and I rotated the seat and it interfered with both levers going around in one direction and also coming back. Before I did that, I looked at the back of the seat and noticed that there were a number of scrape marks across the seat. So it has interfered with the lever a number of times over some time period.

Then I pulled the back up a little bit so it wasn't tilted fully and rotated it again, and it still interfered. A little bit less, but it still interfered. And I moved the seat forward one notch, I think there's about nine notches forward and backwards, and rotated it and it still touched the back of the seat. So there were about three other positions other than what I would call the most severe position where the lever would touch the seat rotating in one direction and also being pushed rotating back.

Dreyer's testimony was corroborated by Dennis Casey, a Jesco employee, who examined the backhoe after the accident and observed the control levers were "at least halfway out of adjustment." Based on the Occupational Safety and Health Administration (OSHA) requirements for construction sites, Dreyer testified that a "general contractor has work site safety responsibility" because "they're in charge of the site." Dreyer acknowledged, however, that in some cases OSHA's rules and regulations impose "multi-levels of responsibility" for worksite safety on multiple parties. At the close of Jesco's case, P.M. conceded that Jesco had presented a prima facie case as to whether there was "negligent site supervision" and whether P.M. "should have picked up on the misalignment [of the control levers] before [the accident] happened." However, P.M. argued there was no evidence to support Dreyer's "theory that P.M. altered the [control] levers," because the scratch marks on the back of the seat "could have been left by other experts." In response, Jesco argued that if the jury found the modifications performed by Jesco in 2002 were proper, then there was strong circumstantial evidence that P.M. "made an adjustment to [the control] levers." The trial court noted the jury received a lot of information about the improper alignment of the control levers, and the court concluded that reasonable minds could differ as to whether P.M. or Jesco was responsible for the misalignment. Accordingly, the court denied P.M.'s motion. P.M.'s expert, Joseph Petrella (Petrella), a mechanical engineer, confirmed the scratches on the backhoe seat were evident in photographs taken by Dreyer nearly three months after the accident. Furthermore, Petrella agreed with Dreyer that the levers were probably "positioned that way intentionally."
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During the jury charge, the court summarized the parties' contentions as follows: Jesco alleges that the levers were installed properly, and that any misalignment occurred after the backhoe left its control. Jesco further alleges that the work site at which the plaintiff was working was run unsafely by P.M. so as to place the plaintiff in the position of danger. P.M. asserts that it had no knowledge prior to the accident that the control levers were misaligned, and further asserts that it never made any adjustments, repairs, maintenance, or modifications to the control linkage assembly prior to the accident. P.M. also . . . denies the contention by defendant Jesco that the work site was run unsafely so as to place the plaintiff in a position of danger.

The court also instructed the jury regarding OSHA regulations: As you will recall, OSHA did not investigate this accident, and no OSHA violations were issued. You have heard testimony asserting that certain OSHA regulations were violated by P.M. Construction. The question of whether or not OSHA regulations were violated will be for you to decide . . . and may be considered by you as evidence of negligence. Please note that any findings you make regarding the allegation of any OSHA violation is not conclusive on the issue of negligence, but rather is one factor you may consider along with all of the other factors in this case.

In addition, the court directed the jury that any negligence found on the part of plaintiff or Martins was not attributable to P.M. because they were not employees of P.M. However, the jury was allowed to consider any negligence by plaintiff or Martins "in the context of Jesco's claim that P.M. failed to properly provide adequate site supervision." After the jury determined that P.M. was ninety-five percent negligent and Jesco was five percent negligent, P.M. moved for judgment notwithstanding the verdict and a new trial. The court concluded the jury verdict was not a "clear injustice" and further found as follows: The simple fact of this case is that the accident occurred after P.M. acquired the backhoe from Jesco. Had the scratch marks been the result of years of inadvertent contact between the seat back and the rear control levers, P.M. would have or should have been aware of the contact prior to the accident. Alternatively, if the scratch marks were relatively new, and contact had not occurred in the 5 years since P.M. acquired the machine from Jesco, the [c]ourt does not find it unreasonable or incredible for the jury to find that the controls must have been altered in some way by P.M. before the accident occurred, especially when the expert examinations after the accident revealed contact between the seat and the levers at various positions, not just the one position.

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On appeal, P.M. submits the following arguments: (1) the trial court erred in permitting Jesco's expert to give impermissible "net opinion" testimony; (2) the jury charge was deficient because the court failed "to instruct the jury on P.M.'s immunity as a general contractor"; and (3) the trial court improperly denied P.M.'s motion for judgment notwithstanding the verdict and for a new trial. We conclude from our review of the record and the applicable law that these arguments are without merit and require only the following discussion. P.M. first argues that Dreyer's testimony was an impermissible net opinion. "In reviewing a trial court's evidential ruling, an appellate court is limited to examining the decision for abuse of discretion." Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008). N.J.R.E. 703 requires that expert opinion testimony be "supported by facts or data either in the record or of a type usually relied on by experts in the field." See Beadling v. William Bowman Assocs., 355 N.J. Super. 70, 87 (App. Div. 2002) ("An expert opinion that is not factually supported is a net opinion or mere hypothesis to which no weight need be accorded."). "Simply put, the net opinion rule 'requires an expert to give the why and wherefore of his or her opinion . . . .'" State v. Townsend, 186 N.J. 473, 494 (2006) (quoting Rosenberg v. Tavorath, 352 N.J. Super. 385, 401 (App. Div. 2002). Opinion testimony may also be classified as a net opinion if the data is insufficient or unreliable to support the conclusion. Gore v. Otis Elevator Co., 335 N.J. Super. 296, 303-04 (App. Div. 2000). Here, Dreyer's testimony was based on a review of "the complaint and interrogatory responses and deposition testimony" as well as a personal inspection of the backhoe. Moreover, Dreyer confirmed that all of his opinions were "rendered within a reasonable degree of engineering probability." In these circumstances there was an adequate factual foundation for Dreyer's findings, and the trial court correctly concluded that his opinion testimony was admissible. P.M. next argues the trial court committed plain error when it failed to instruct the jury that a general contractor is not ordinarily liable for the acts of an independent contractor. However, it is undisputed that P.M. withdrew its demand for an instruction on general contractor immunity based on Alloway v. Bradlees, Inc., 157 N.J. 221, 232 (1999). The issue in Alloway concerned the duty of care owed by a general contractor to ensure the safety of an employee of a subcontractor. Id. at 225. The court in Alloway reaffirmed the principle we articulated in Kane v. Hartz Mountain Indus., Inc., 278 N.J. Super. 129, 143 (App. Div. 1994), aff'd o.b., 143 N.J. 141 (1996):
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[T]he paramount consideration of a worker's safety is more clearly placed in focus by a . . . comprehensive rule which makes the primary contractor and each tier of subcontractor responsible for the safety of the workers under them on general negligence principles. This appears preferable to limiting liability to a specific finding of a violation of [an OSHA] regulation, which in some instances may be obscure, vague or difficult to comprehend or apply.

[Alloway, supra, 157 N.J. at 235 (first alteration in original) (quoting Kane, supra, 278 N.J. Super. at 143).]

Accordingly, the trial court properly instructed the jury that P.M.'s failure to comply with OSHA regulations could be considered when determining if P.M. was negligent, but any finding of a violation was "not conclusive on the issue of negligence." Neither party objected to the jury charge. Moreover, we are satisfied that the jury instructions, considered as a whole, correctly stated the applicable law and adequately explained how the jury should apply the legal principles to the facts as the jury found them. Wade v. Kessler Inst., 172 N.J. 327, 341 (2002). Finally, P.M. argues the trial court erred in denying its motion for a new trial. A motion for a new trial will not be granted unless "it clearly and convincingly appears that there was a miscarriage of justice under the law." R. 4:49-1(a); see also Dolson v. Anastasia, 55 N.J. 2, 6-8 (1969). To determine whether there was a miscarriage of justice, we defer to the trial court regarding "intangibles" not transmitted by the record, namely, credibility, demeanor, and "feel of the case," but otherwise make our own independent determination of whether a miscarriage of justice occurred. Carrino v. Novotny, 78 N.J. 355, 360-61 n.2 (1979); Baxter v. Fairmont Food Co., 74 N.J. 588, 597-98 (1977); Dolson, supra, 55 N.J. at 6. In this case, the trial court found there was substantial credible evidence to support the jury verdict, and the record amply supports that determination. P.M's remaining arguments are without sufficient merit to warrant additional discussion. R. 2:113(e)(1)(E). Moreover, in view of this disposition, there is no need to address Jesco's cross-appeal. Affirmed.

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1 Because Maria Carneiro's claims are derivative, we refer to Raul Carneiro as "plaintiff."

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