A state appellate court has upheld a ruling that The College of New Jersey couldn't be held liable for injuries sustained by a worker during a trench collapse on campus.

A panel of the Appellate Division affirmed a Mercer County judge's finding that the college did not owe a duty of care to plaintiff Joseph Gage, who was injured while excavating and installing steam pipes on college grounds.

Gage alleged that the college and its project engineer, David Jurkin, had the power to stop work before unsafe conditions led to a trench collapse. He further claimed that even if TCNJ had no contractual duty to take corrective measures, it should have done so anyway, according to the panel's March 22 per curiam opinion.

The court held that Gage's employer, A&J Construction, was responsible for the condition of the work site.

“The record contains no credible evidence demonstrating that defendants directed, supervised, or managed A&J's work. And plaintiff's co-workers testified that the project engineer did not control A&J's work. Rather, defendants left the ways, means, and methods of the work to A&J, who was an experienced, qualified, and capable contractor,” the opinion said.

“Plaintiff himself testified that A&J's superintendent told him where to work. Plaintiff said that he would see Jurkin at the site for about five-to-ten minutes from time to time, and that they 'talked about sports [and] all kinds of stuff,'” the opinion continued. “In general, Jurkin visited the job site from time to time to perform periodic inspections of work and materials. But he did not direct how A&J performed its work, was not required to undertake supervisory responsibility for A&J's work, and did not act as foreman for the project.”

Gage relied on the 1996 Supreme Court ruling in Carvalho v. Toll Bros. & Developers to attempt to impose a duty of care on the college, but the Appellate Division said that the citation was inapt to the case at hand.

“In Carvalho, the issue was whether the engineer, hired by the landowner, owed a duty to the injured worker,” the opinion said. “Here, the legal issue is whether the landowner owed plaintiff a duty. This is significant because the court did not address the general legal principles for imposition of the duty of a landowner, but rather, considered only the foreseeability of the harm and fairness pertaining to the engineer's duty. Here, plaintiff argues that TCNJ—the landowner—owed him a duty of care.”

The court noted that it had previously held that landowners have no duty to eliminate hazards that are “obvious and visible to an employee and that are incidental to the very work the contractor was hired to perform.”

Haddonfield lawyer Michael Confusione wrote Gage's appellate brief and declined to comment.

Brent Bouma of Wade Clark Mulcahy represented the defendants and did not respond to a request for comment.