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Francis v. Burnett

A-2393-05T2 (N.J. Super. App. Div. 2007) (Unpublished)

CONTRACTORS; LANDOWNER’S LIABILITY — Although a landowner does have a general duty to use reasonable care to protect visitors from known or reasonably discoverable hazards, the general duty does not extend to an obligation to eliminate all possible dangers, including those that are incidental to work being done by an injured contractor.

A worker suffered injuries while building a house. Earlier, the homeowner asked the worker to install railings around a third floor deck and to install siding in the area of the deck. The homeowner asked that the siding be installed first so that the railings could be installed over them. He also asked that the railing be installed before getting stolen or damaged. On the day that the worker was injured, he was installing the siding on the third floor deck. He used a two-foot stepladder to reach the higher areas. While doing this, the worker lost his balance and fell to the ground. Neither the homeowner nor the worker’s employer was present at the time. The worker sued the homeowner, the contractor hired to build the decks, and the subcontractor who was hired to install the railings on the decks.

The worker relied on a report from a safety expert saying that if federal work safety standards had been followed, he would have been protected from falls at higher elevations. The report stated that the railing should have been installed prior to the installing the siding. The worker’s employer testified that he made the decision to install the siding before the railings, but that the worker should have used scaffolding or a pump jack to reach the higher areas. The worker claimed that he did not have enough room to use a pump jack. Prior to trial, the lower court granted summary judgment, dismissing claims against all of the parties. It held that the homeowner owed no duty to the worker because the homeowner did not control the progress of the work and because the worker had the ability to avoid the risk of harm. The lower court also found that general contractor and the subcontractor were not liable for the worker’s injuries because it would be unfair and would not achieve any public policy to impose a duty and liability to them.

The worker appealed on the grounds that summary judgment should not have been granted to a general contractor who had violated federal safety standards, and that the contractor shared some responsibility for safety on the site. The subcontractor was not named in the appeal. The Court noted that a general contractor is responsible for ensuring that a work site is in reasonably safe condition, but is not responsible for eliminating all potential workplace hazards. On the other hand, the Court ruled that violations of federal safety standards alone do not impose a duty. In applying the facts to standards for imposing a duty, it found that the contractor and subcontractor had no responsibility for the employer’s safety procedures, played no part in the worker’s decision to use a step ladder, and had a reasonable expectation that worker would have taken reasonable safety precautions. Also, the relationship between the worker and his employer (the subcontractor) to the contractor was not close enough to warrant a duty to implement workplace safety on their behalf and the general contractor had no agreement in which he agreed to supervise the subcontractor’s employee’s work. The Court pointed out that federal safety standards require guardrails as only one possible safeguard and that there could have been other safeguards in place of the guardrails. Absent a duty on the general contractor, the Court affirmed the summary judgment in its favor.

The worker also appealed on the grounds that the homeowner, as owner of the site of injury, could have been held liable. The Court noted that a landowner does have a general duty to use reasonable care to protect visitors from known or reasonably discoverable hazards, but that this duty did not extend to an obligation to eliminate all possible dangers, including those that are incidental to the work being performed. Also, the homeowner did not control the means and manner of the work being performed. With no duty to be imposed on the homeowner, the Court also affirmed the summary judgment in his favor.


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