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Kerins v. J&M Carpentry and Contracting Incorporated

A-5502-98T5 (N.J. Super. App. Div. 2000) (Unpublished)

LIABILITY; LANDOWNERS—A property owner cannot relieve itself from liability for injuries sustained by a third person as a result of the act or omission of an independent contractor hired to perform the owner’s non-delegable duty.

A homeowner contracted to have the front steps of its home replaced with a deck and new steps. During the course of the work, a building inspector instructed that the work stop until a building permit was obtained. A building permit could not be obtained without a variance, but the homeowner directed the contractor to complete the work anyway. When the homeowner’s parents arrived a few days before they were to begin to babysit the homeowner’s children, the father was injured when the new steps collapsed. At trial, a jury awarded him damages for the personal injuries that he sustained and found the homeowner 25 percent negligent. On appeal, the homeowner argued that his father had not yet begun to babysit and therefore was a social guest who had arrived early to take care of personal business. In that regard, the Appellate Division agreed with the lower court that the primary purpose of the visit was to babysit and that the personal business attended to by the homeowner’s father was incidental to the primary purpose. Therefore, the homeowner’s father was an invitee, i.e., “one who was on the premises [of another] to confer some benefits upon the invitor other than purely social.” Consequently, because “[i]t is an elementary principle that the owner of a building has a nondelegable duty to exercise reasonable care to persons using the premises at the owners’ invitation,” the homeowner was liable to his father. Further, an owner of premises cannot relieve itself of liability for injuries sustained by a third person as a result of the act or omission of an independent contractor hired to perform the homeowners’ nondelegable duty. In the case of an invitee, a landowner has “an obligation to use reasonable care to guard against any dangerous condition on [its] property that [it] either knew about or should have discovered.” Here, even though the primary responsibility for obtaining a permit may have rested with the contractor, the homeowner could not be relieved from performing its nondelegable duty to the invitee. Further, although a principal is generally not vicariously liable for the torts of its independent contractor, here, the homeowner’s direction to the contractor to complete the job without first obtaining a permit constituted participation in the building process and was sufficient to give rise to the homeowner’s independent liability.

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