WILCZEK v. BAYWAY REFINING COMPANY

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

PETER WILCZEK,

Civ. No. 19-17374 (KM-JBC)

Plaintiff,

OPINION

v.

PHILLIPS 66 COMPANY, BROCK

INDUSTRIAL SERVICES, LLC,

CORPORATION SERVICES

COMPANY, et al.,

Defendants.

KEVIN MCNULTY, U.S.D.J.:

The plaintiff, Peter Wilczek, sues for injuries sustained in the course of

his employment. Defendant Phillips 66 Company (“Phillips 66”) owns the

property where the accident occurred. Wilczek was employed, however, by a

subcontractor, defendant Brock Industrial Services, LLC (“Brock”), which

controlled the means and methods of Wilczek’s work. Now Phillips 66 moves for

summary judgment, arguing that Brock, not itself, is liable.

Despite multiple extensions, no opposition has been filed. As required by

law (see Section II.B, infra), I have not automatically granted the motion as

unopposed, but reviewed the record to determine whether it presents a triable

issue of fact. Finding none, and for the reasons stated herein, I have GRANTED

the motion and awarded summary judgment to Phillips 66.1

1 Certain citations to the record will be abbreviated as follows:

DE __ = Numbered items on the docket of this case.

Def. Brf. = Brief in support of Phillips 66 motion for summary judgment (DE 52

at 3)

I. Procedural Background

This action, filed in state court, was removed to this Court on August

29, 2019. The Third Amended Complaint (DE 26) is the currently operative

pleading. The Magistrate Judge ordered the matter to be referred to

arbitration following fact discovery and exchange of expert reports. (DE 42,

43) Counsel for Mr. Wilczek rejected the arbitrator’s confidential findings

and requested trial de novo. (DE 45)

On January 27, 2023, defendant Phillips 66 filed its motion for

summary judgment (DE 52). The return date was automatically set for

February 21, 2023, and then reset to March 6, 2023, to reflect an earlier

scheduling order.

On February 16, 2023, Mr. Bensulock, who is counsel for Mr.

Wilczek, wrote the court to confirm the March 6, 2023 return date.

Counsel’s letter noted, however, that counsel for Phillips 66 had

DSMF = Defendant Phillips 66 Statement of Uncontested Material Facts (DE 52

at 23)

Ex. __ = Defendant Phillips 66 lettered exhibits A-G (DE 52-2), comprising:

Wilczek Interrog. = Plaintiff interrogatory answers, attached as Ex. B

(DE 52-2 at 8)

Wilczek Dep. = Transcript of deposition of plaintiff, attached as Ex. C

(DE 52-2 at 19)

Austin Dep. = Transcript of deposition of Randy Austin, attached as

Ex. D (DE 52-2 at 56)

Miller Rpt. = Expert report of Engineer Raymond Miller, attached as

Ex. E (DE 52-2 at 89)

J. Toto Rpt. = Expert report of Engineer J. Toto, attached as Ex. F (DE

52-2 at 115)

Service Agreement = Service Agreement and related materials,

attached as Ex. G (DE 52-2 at 123)

… consented to give us another week for our response to the

motion and in return we will consent for an additional week for

defense counsel replies.

I am requesting the Court to adjourn and amend the return date in

the website for an extra week till March 13, 2023.

(DE 53) On February 21, 2023, Magistrate Judge Clark so-ordered that

extension, and the return date of the summary judgment motion was reset to

March 13, 2023. (DE 54 and entry following).

On February 27, 2023, plaintiff’s counsel wrote to the Court a second

time, requesting an additional week:

Our response to the Summary Judgment Motion is currently

scheduled for February 28, 2023.

Brendon Johnson, attorney for defendant, Phillips 66, consented to

give us another week for our response and in return we will

consent for an additional week for defense counsel replies.

I am requesting the Court to adjourn the hearing date to March 20,

2023, plaintiff’s response to March 7, 2023 and defendants’ replies

to March 14, 2023.

(DE 55) On February 28, 2023, the Court again so-ordered the requested

extension and set the return date for March 20, 2023. (DE 56)

On March 17, 2023, plaintiff’s counsel wrote to the Court a third time,

again requesting an additional week:

Our response to the Summary Judgment Motion was scheduled for

March 7, 2023.

Attorney for defendant, Phillips 66, Brendon Johnson, consented

to give us till Monday, March 20, 2023 for our response and in

return we will consent for an additional week for defense counsel

replies.

I am requesting the Court to adjourn the hearing date to April 4,

2023, plaintiff’s response to March 20, 2023 and defendants’

replies to March 27, 2023.

(DE 57) On March 20, 2023, Magistrate Judge James B. Clark, III so-ordered

the requested extension and set the return date for April 4, 2023. (DE 58)

After three extensions, then, the plaintiff’s responding brief was due

March 20, 2023. No brief was received, and no further extension was

requested.

On April 13, 2023, counsel for Phillips 66 wrote to the Court pointing out

that, after being granted three extensions, the plaintiff still had not responded

to the summary judgment motion. He requested that the motion be considered

unopposed. (DE 59) To this letter, filed over a month ago, there has likewise

been no response.

I therefore have no choice but to rule on the motion as presented.

II. Legal standard

A. Ordinary summary judgment standard

Federal Rule of Civil Procedure 56(a) provides that summary judgment

should be granted “if the movant shows that there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a matter of law.”

See Kreschollek v. S. Stevedoring Co., 223 F.3d 202, 204 (3d Cir. 2000);

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). In deciding a motion

for summary judgment, a court must construe all facts and inferences in the

light most favorable to the nonmoving party. See Boyle v. Cnty. of Allegheny

Pennsylvania, 139 F.3d 386, 393 (3d Cir. 1998) (citing Peters v. Delaware River

Port Auth. of Pa. & N.J., 16 F.3d 1346, 1349 (3d Cir. 1994)).

The moving party bears the burden of establishing that no genuine issue

of material fact remains. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23

(1986). “[W]ith respect to an issue on which the nonmoving party bears the

burden of proof . . . the burden on the moving party may be discharged by

‘showing’ — that is, pointing out to the district court — that there is an

absence of evidence to support the nonmoving party’s case.” Id. at 325. Once

the moving party has met that threshold burden, the non-moving party “must

do more than simply show that there is some metaphysical doubt as to

material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S.

574, 586 (1986). The opposing party must present actual evidence that creates

a genuine issue as to a material fact for trial. Anderson, 477 U.S. at 248; see

also Fed. R. Civ. P. 56(c) (setting forth types of evidence on which nonmoving

party must rely to support its assertion that genuine issues of material fact

exist).

Unsupported allegations, subjective beliefs, or argument alone cannot

forestall summary judgment. See Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871,

888 (1988) (nonmoving party may not successfully oppose summary judgment

motion by simply replacing “conclusory allegations of the complaint or answer

with conclusory allegations of an affidavit.”); see also Brewer v. Quaker State

Oil Ref. Corp., 72 F.3d 326, 330 (3d Cir. 1995) (“[T]he nonmoving party creates

a genuine issue of material fact if it provides sufficient evidence to allow a

reasonable jury to find for him at trial.”). Thus, if the nonmoving party fails “to

make a showing sufficient to establish the existence of an element essential to

that party’s case, and on which that party will bear the burden of proof at trial

. . . there can be ‘no genuine issue of material fact,’ since a complete failure of

proof concerning an essential element of the nonmoving party’s case

necessarily renders all other facts immaterial.” Katz v. Aetna Cas. & Sur. Co.,

972 F.2d 53, 55, n.5 (3d Cir. 1992) (quoting Celotex, 477 U.S. at 322-23).

B. Procedure where motion is unopposed

Where, as here, a party fails to address the other party’s properly

supported assertions of fact, the court may consider “grant[ing] summary

judgment if the motion and supporting materials—including the facts

considered undisputed—show that the movant is entitled to it . . . .” Fed. R.

Civ. P. 56(e). Local Civil Rule 56.1(a) deems a movant’s statement of material

facts undisputed where a party does not respond or file a counterstatement. L.

Civ. R. 56(a). A failure to dispute a party’s statement of material facts, however,

“is not alone a sufficient basis for the entry of a summary judgment.” See

Anchorage Assocs. v. Virgin Islands Bd. of Tax Review, 922 F.2d 168, 175 (3d

Cir. 1990) (holding that even where a local rule deeming unopposed motions to

be conceded, the court was still required to analyze the movant’s summary

judgment motion under the standard prescribed by Fed. R. Civ. P. 56(e)); see

also Muskett v. Certegy Check Servs., Inc., Civ. No. 08-3975, 2010 WL 2710555

(D.N.J. July 6, 2010) (“In order to grant Defendant's unopposed motion for

summary judgment, where, as here, ‘the moving party does not have the

burden of proof on the relevant issues, . . . the [Court] must determine that the

deficiencies in [Plaintiff’s] evidence designated in or in connection with the

motion entitle the [Defendants] to judgment as a matter of law.’” (quoting

Anchorage Assocs., 922 F.2d at 175)).

III. Discussion

Phillips 66 is the owner of premises known as the Bayway Refinery in

Linden, New Jersey. The plaintiff, Mr. Wilczek, alleges that he sustained an

injury to his cervical spine when working on those premises on March 4, 2017.

(DSMF ¶ 1) Specifically, he suffered a fall when working as part of a crew

building scaffolding inside a large furnace as part of a so-called Turnaround

Project. (DSMF ¶ 2) At the time, Wilczek was employed by Brock. Phillips 66

asserts that as property owner and general contractor it was entitled to rely on

Brock, its subcontractor, to ensure Wilczek’s safety.

A. Rule of non-liability for a general contractor/property owner

Generally speaking, a tort plaintiff such as Mr. Wilczek must establish

(1) that the defendants owed the plaintiff a duty of care; (2) that the defendants

breached that duty; (3) proximate causation between the breach and the

injuries sustained by the plaintiff; and (4) damages suffered by the plaintiff.

Conklin v. Hannoch Weisman, 145 N.J. 395, 416 (1996). Phillips 66 here

focuses on the first element, arguing that it did not owe Brock’s employee

Wilczek a duty of care.

An occupier of land or general contractor is “not responsible for harm

which occurs to an employee as a result of the very work which that employee

was hired to perform” on-site Dawson v. Bunker Hill Plaza Assocs., 289 N.J.

Super. 309, 318 (App. Div.), certif. denied, 146 N.J. 569 (1996). More

specifically, “[a] ‘general contractor’ is not liable for injuries to a subcontractor’s

employees absent control over the job location or direction of the manner in

which the delegated tasks are carried out.” Muhammad v. N.J. Transit, 176 N.J.

185, 198-99 (2003). A competent “independent contractor and [its] employees

are sufficiently skilled to recognize the danger associated with their task and

adjust their methods according to ensure their own safety,” Tarabokia v.

Structure Tone, 429 N.J. Super. 103, 113-114 (App. Div. 2012), or so the

general contractor is entitled to assume, absent contrary evidence. So, in

general, a general contractor enjoys “broad immunity from liability for injuries

to an employee of a subcontractor resulting from either the condition of the

premises or the manner in which the hired work is performed.” Id. at 112, 113

(citing Muhammad, 176 N.J. at 198-99). Accordingly, it has long been held that

[a] general contractor who sublets work, relinquishing the right of

control and direction over the manner in which the work shall be

done, and of the employees engaged in doing it, and exercising only

such general superintendence as is necessary to see that the

subcontractor performs the contract, ordinarily has no duty to

protect an employee of the subcontractor from the very hazards

that arise from the doing of the contract work itself; the

subcontractor and not the general contractor has the duty to

guard his employees against such dangers.

Trecartin v. Mahony-Troast Const. Co., 18 N.J. Super. 380, 386 (App. Div.

1952).

The facts here fit the subcontractor scenario described in the cited cases.

Wilczek was employed by Brock, a qualified subcontractor hired by

Phillips 66 to perform certain work. (DSMF ¶¶ 1, 5) By contract, Brock was

responsible for onsite safety and training of its employees. (Id. ¶ 6) Brock was

an imbedded contractor at Bayway Refinery, both before and after the accident

in suit. (Id. ¶ 21) Brock had exclusive control over the work it was hired to do,

and would periodically report on the progress of the scaffolding. (Id. ¶ 19)

Phillips 66 relied on Brock’s expertise in construction, inspection, and

maintenance of the scaffolding. It had no control over the scaffolding or the

means and methods of building it. (Id. ¶¶ 22, 24) That responsibility lay with

Brock. (Id. ¶ 26) Brock was responsible for training its employees and ensuring

they were qualified. (Austin Dep. T78:1–9)

It is true that an employee of Phillips 66, Randy Austin, had general

responsibility for safety at the plant, and that Brock employees would

sometimes attend safety presentations (although Austin could not recall any

such meeting specifically on the subject of scaffolding). (Id. ¶¶ 15, 16) Phillips

66 employed safety coordinators, but these employees did not inspect

scaffolding. (Id. ¶ 17)

The work being done by Mr. Wilczek on the day of the accident was the

very work for which his employer, Brock, was engaged as subcontractor.

(Wilczek Dep. T43:11–25) Wilczek was passing scaffolding materials up the

scaffolding to the level above him when the Brock Industrial employees had to

move to the next scaffolding tower. (Id. T43:11 to 45:23). Wilczek acknowledged

that he "climbed between the scaffolding towers between the scaffolding pipes

or braces" and while doing so, struck his head and fell. (Id.) All of the safety

equipment worn by Wilczek was provided by his employer, Brock Industrial.

(Id. T20:9-20) The scaffolding materials were likewise provided by Brock. (Id.

T43:11–45:23)

Under its contract with Phillips 66, Brock was required to have safety

inspectors, to employ OSHA competent workers, to censure compliance with all

health and safety standards as well as all federal and state laws, and to provide

regular safety training to its employees. (Ex. G; see also Master Service

Agreement, quoted at Ex. E, DE 52-2 at 99–100) The Service Order for this

particular job specified that Brock was authorized “to furnish labor, tools,

materials, equipment, transportation, and supervision, to provide the following

work: Scaffolding support . . . .” (quoted at Ex. E, DE 52-2 at 101). Mr. Wilczek

acknowledged that he personally was an experienced, competent person with

respect to scaffolding safety. (DSMF ¶ 9)

In short, these facts establish that Mr. Wilczek was the employee of

Brock, not Phillips 66, and that he was doing work taken on and supervised by

Brock, which controlled the means and manner of work and had responsibility

for safety conditions. The general rule of non-liability would therefore absolve

Phillips 66, unless some exception applies.

B. Exceptions to the rule of non-liability

Retained Control Exception. Under the “retained control” exception, a

subcontractor’s principal may be liable if it exerts control over the “means and

manner by which an independent contractor performs [its] services.” Basil v.

Wolf, 193 N.J. 38, 63-64 (2007). Relevant factors include “reservation of control

over the equipment to be used, the manner or method of doing the work, or

direction of the employees of the independent contractor.” Mavrikidis v. Petullo,

153 N.J. 117, 135 (1998). “To impose liability upon the landowner, there must

be evidence of physical control over the work site; mere superintendence to

ensure that the contractor is abiding by the agreement does not suffice.”

Pfenninger v. Hunterdon Cent. Reg'l High Sch., 167 N.J. 230, 254 (2001).

This exception is in many respects simply the negation of the facts

underlying the application of the usual rule of non-liability. The facts, as

outlined in the preceding section III.A, establish that there is no triable issue as

to the control of the means and manner of work or the retained control

exception, which does not apply.

Incompetent Contractor Exception. A principal may also be held liable

under a negligent hiring theory. Such liability has three essential elements:

(1) that the contractor was, in fact, incompetent or unskilled to perform the job

for which it was hired; (2) that the harm that resulted arose out of that

incompetence; and (3) that the principal knew or should have known of the

incompetence. Basil, 193 N.J. at 68.

Phillips 66 vetted Brock in advance to ensure that it operated in

accordance with site guidelines and OSHA regulations. (Austin Dep. at T53:24-

54:3) As noted above, under its contract with Phillips 66, Brock was required to

have safety inspectors, to employ OSHA competent workers, to censure

compliance with all health and safety standards as well as all federal and state

laws, and to provide regular safety training to its employees. (Ex. G; see also

Master Service Agreement, quoted at Ex. E, DE 52-2 at 99–100) Wilczek

acknowledged that he personally was an experienced, competent person with

respect to scaffolding safety. (DSMF ¶ 9)

There is no sufficient evidence to create a triable issue as to the injuries

having resulted from Phillips 66 having negligently hired an incompetent

subcontractor.

Nuisance per se. The third and last potential exception to the rule of non-

liability applies when the relevant activity constitutes a nuisance per se. That

doctrine applies narrowly to an activity that “(a) necessarily involves a serious

risk of harm to the person, land or chattels of others which cannot be

eliminated by the exercise of the utmost care, and (b) is not a matter of

common usage.’” Majestic Realty Assocs., Inc., 30 N.J. at 436. There is no

indication that scaffolding work of this kind has been legally defined or would

appropriately be described as a nuisance per se.

IV. Conclusion

For the reasons set forth above, the motion of defendant Phillips 66 for

summary judgment (DE 52) is GRANTED as to all claims. An appropriate order

will issue.

Dated: May 25, 2023

/s/ Kevin McNulty

____________________________________

Kevin McNulty

United States District Judge