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Fulloon v. Baxter Healthcare Corporation

A-2569-98T5 (N.J. Super. App. Div. 2000) (Unpublished)

NEGLIGENCE; LANDOWNER LIABILITY—A property owner is liable to its independent security guard for injuries caused by the owner’s failure to clear snow and ice.

A security guard slipped on ice while performing his rounds at an industrial facility. The industrial facility had hired a snow-plowing concern to remove snow from the premises. That night, the guard lost his footing and slipped backwards on ice which was covered by a light dusting of snow. When the guard had arrived at work, there was less than an inch of snow accumulation as a result of a snowfall earlier in the evening. He parked his vehicle near a truck docking area that was “always icy” because the area was never salted. In fact, the guard, prior to the accident, had mentioned the icy conditions to the facility’s personnel, “but nothing was ever done about it.” The guard’s function was to make hourly “rounds” of the facility to confirm that the buildings and grounds were secure. The facility dictated the number of rounds and designated the route to be followed. The guard acknowledged that part of his duties included ascertaining and reporting whether there existed any dangerous condition resulting from snow and ice observed during his rounds. He also admitted that the guard on duty prior to his shift told him to “watch your footing” because of pockets of ice in the truck docking area. “As a general rule, a landowner has a non-delegable duty to use reasonable care to protect invitees against known or reasonably discoverable dangers.” However, “[t]he landowner is under no duty to protect an employee of an independent contractor from the very hazard created by doing the contract work.” In a recent case, the Appellate Division held that “the exception to the general rule of liability did not apply in a case where a security guard slips and falls on snow and ice when the landowner had done nothing about the icy condition ‘whether because of indifference, or oversight, or the plant closure for holiday week.’” However, there was a difference in facts between that case and this one. Here, according to the lower court, the industrial facility asserted that the icy condition that caused the guard’s fall was the type of hazard that the guard was hired to ascertain and report to its personnel, and thus involved the “very work the contractor was hired to perform.” The Appellate Division disagreed. It did not find this to be a situation where “[a]n independent contractor ... ‘contracts to do a piece of work according to his own methods without being subject to the control of the employer as to the means by which the result is to be accomplished’ ... .” Because the industrial facility dictated the manner and means by which the guard was to perform his duties by designating the number, scope, and route of his delegated rounds, the facility was deemed to have participated in the activity. Moreover, it retained full control over the condition of the docking area where the guard fell. Further, the guard was injured as a result of slipping on an ice patch covered with snow. Therefore, the injury did not arise as a result of a subcontractor undertaking “operational hazards which are obvious and visible to the invitee ... and which are part of or incidental to the very work the contractor was hired to perform.” As a result, the industrial facility had a “duty of reasonable care to plaintiff with respect to snow and ice accumulation, under all of the relevant circumstances.”


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