To what extent is a contractor responsible for injuries caused to another as a result of its work? At what point does a contractor have a duty to protect certain individuals that may reasonably be affected by its construction activities? The question is simple enough and the answer would seemingly be obvious. However, in a situation where a contractor undertakes a limited scope of work, and where additional protections are not included within its contract, the legal duty which a contractor owes to the injured third party is not so readily apparent. Such was the situation presented in this particular case.

This case involved our client’s unfortunate exposure to certain dust, debris, and other environmental contaminants while a roof removal and replacement project were being undertaken at her place of employment. In order to address an ongoing mold problem within our client’s work area, her employer hired contractors to remove the existing flat roof system and replace it with a new roof. However, the workspace directly below the roof had to remain occupied by the employees, including our client, while the construction activities were ongoing. Despite the fact that the area below was to remain occupied, the roofers’ contracts did not include protection of the interior spaces within their scope of work.

In order to complete the work, the contractors had to remove the stone, membrane, and insulation of the existing roof down to its metal deck. The interior spaces contained a standard panel drop ceiling below the roof deck. The interior side of the drop ceiling was not protected to prevent dust and other environmental containments from entering the workplace thereby exposing the employees to these contaminants. The contract between the employer and the roofers did not require such interior protection nor did the employer expect the contractors to perform such work.

As soon as the contractors began removing the existing roof system, our client observed dust and other fine particles falling through the drop ceiling which she inhaled for nearly a week before the interior ceiling was eventually enclosed with plastic tarping. Our client began experiencing immediate respiratory symptoms requiring her to seek extensive medical treatment. Unfortunately, her symptoms did not improve and ultimately she had to stop working.

Despite years of pulmonary treatment she was ultimately diagnosed with hypersensitivity pneumonitis, interstitial lung disease and other associated respiratory conditions. We alleged that these conditions were a result of inhaling construction dust, roofing debris and insulation, fireproofing and other environmental contaminants including bird excretes which was a direct cause of the contractors’ work and their failure to protect the interior workplace prior to the roof being removed. To complicate matters, our client had a distant history of respiratory conditions and the symptomology she complained of as a result of the construction project could have also been the result of everyday environmental exposures and not necessarily the construction activities.

Liability was vigorously contested with the contractors arguing that their legal duty was defined by the limited scope of their contracts which did not include protection of the interior work spaces. In fact, the contractors pointed to the employer, which was otherwise immune from liability by virtue of the Workers’ Compensation Act. In fact, it was the employer, not the contractors, which ultimately provided the interior protection to the drop ceiling after construction began. We argued that notwithstanding the contractual language defining the scope of work, a contractor has a legal duty to prevent injury to those who may reasonably be affected by their construction activities such as our client. This duty requires the exercise of reasonable care under all circumstances irrespective of contractual or industry standards.

After years of litigation, which included actions filed in both the State and Federal Courts, extensive discovery and expert analysis, and motions to dismiss the action in its entirety, the parties agreed to mediate the matter with the goal of reaching an amicable resolution. With the assistance of a retired New Jersey Superior Court Judge, the parties were able to reach a global settlement in the amount of $500,000. Continued negotiations by our office resulted in the employer’s workers’ compensation carrier agreeing to continue payment for our client’s future medical care for her pulmonary conditions which was of significant importance to her.

Every case presents its own unique challenges and difficulties and this case was no different. Despite these obstacles, the attorneys at Petro Cohen, P.C., are committed to continue the fight even in the face of long odds in order to secure the best possible result for our clients.


Richard Gaeckle, a Partner in the firm’s Personal Injury Department, was principally responsible for the handling of this matter on behalf of our client.