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Horvath v. Home Care Industries, Inc.

A-6236-00T3 (N.J. Super. App. Div. 2002) (Unpublished)

LANDOWNER’S LIABILITY; INDEPENDENT CONTRACTORS— Where it was foreseeable that an independent contractor-worker, not engaged to repair a roof, could fall through a defective portion of a roof while working on another aspect of a project, a property owner was found to have had a non-delegable duty to inspect the roof and warn the worker of any defect discovered.

A tenant occupied an industrial site. It and the owner contracted with a demolition company to remove an adjoining shed and to construct a new building on the site. The roof of the new building was to be connected to the top of the shed. A superintendent was employed by the contractor as a “independent contractor,” and was regularly, “though not exclusively, retained and paid by [the contractor] to serve as its working foreman on construction and demolition projects… .” The contractor, separate and apart from the demolition-construction contract, “undertook to arrange for correction of some leaks in the roof of the storage shed at the tenant’s and owner’s request.” The contractor secured and paid another “independent contractor” to seal the roof leaks. A portion of the storage shed was exposed to the elements until completion of the new construction. Therefore, that property owner requested the contractor “to cover the exposed portion with a tarpaulin or tarpaulins.” The contractor instructed its superintendent and an assistant to place a tarpaulin on the storage shed. The man was also expected to later complete the connection between the new building and the storage shed. The man did so and the protective tarpaulin was plainly visible to all for several months. One day, the man, acting as the superintendent for the job, jumped across an approximately two foot gap “between the roof of the substantially constructed new building and the roof of the storage shed.” He landed on a roof panel and fell through, suffering severe injuries that led to his death on the following day. Neither the contractor nor the decedent had been retained to replace or make structural repairs to the roof shed. The lower court received an opinion “that the roof panels had deteriorated over time, leading to its collapse.”

The Court pointed out that “years of case law in this state have more particularly described the duties owed by landlords and occupiers to those invitees who are expected to be working on their premises, particularly as independent contractors or employees of such contractors.” It summarized that duty as follows: “The owner of land who invites workmen of an independent contractor to come upon its premises is under a duty to exercise ordinary care to render reasonably safe the areas in which he might reasonably expect to be working. ... The landowner’s duty includes the obligation of making a reasonable inspection to discover defective and hazardous conditions, ... . The obligation upon the landowner of either making the condition of its premises reasonably safe or giving adequate warning imposes upon him the duty to furnish such safeguards as may reasonably be necessary. ... Moreover, the duty of a landowner to such an invitee is nondelegable. The landowner cannot escape its responsibility to provide a safe place to work by attempting to transfer it to another. The possibility that another person may also have been negligent does not relieve the landowner of a legal duty.” Even with that statement, the Court pointed out that certain clarifications exist. “[F]or example, that a landowner is under no duty to protect workman [sic] of an independent contractor from the very hazards created by doing the contract work, or from such hazards as are obvious or visible to the invitee upon ordinary observation and part of or incidental to the very work the contractor was hired to perform.” Also, a property owner’s liability to an invitee does not extend “to injuries incurred on a part of the premises or for purposes not within the limits of the invitation.” Analyzing the case law and the facts, the Appellate Division was “satisfied that the evidence was sufficient to permit the conclusion that defendants must have foreseen that some workmen would be entering upon the shed roof.” That would have included the decedent, “who was charged with the responsibility to install and later to remove the protective tarpaulin, each action requiring entry upon the roof.” Further, it was clear that the decedent, in completing the connection between the tops of the two buildings, wasn’t required to enter upon the shed roof. Most importantly, in this case, neither the decedent nor the contractor that engaged him “were roofers nor engaged as such, they were not subject to the [case law exception] to the landowner’s duty of maintaining a safe workplace.” Although it was true that the property owner requested the contractor “to have the shed roof sealed against further leakage, there was no indication that the request also involved structural inspection or correction, nor that [the property owner and the tenant] engaged the professional roofer for the task.” In essence, the property owner and its tenant did not fulfill their “non-delegable responsibility to make a reasonable inspection, given the reasonable foreseeability that workmen who were not roofers would be entering upon the fifty-year-old transite roof in order to perform non-roofing tasks.” Consequently, since this was a factual issue, it should not have been dismissed on summary judgment by the lower court.

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