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Martin v. Sands Hotel & Casino

A-1650-97T5 (N.J. Super. App. Div. 1999) (Unpublished)

PREMISES LIABILITY—Including specific provisions in a supplier’s contract does not expose a landowner to personal liability for injury to that contractor’s employee where the injury arose out of known hazards of the work to be performed related to those provisions.

Dancers were employed by a production company to perform in a show booked by a casino. The employment contract provided for a six-day work week with a maximum of three shows daily, but accorded the production company the right to change the employee’s day off. The contract between the production company and the casino accorded the casino the right to determine the dates and times of performances, permitting the casino to schedule up to thirteen performances a week, that is, five fewer than the weekly number permitted in the production company’s contract with its dancer. It was undisputed that the casino scheduled the thirteen shows over a seven-day week. It was also undisputed that the casino’s scheduling resulted in the dancers not having a day off, a situation that could have been avoided by the production company if it had hired more dancers. During one show, a dancer was dropped by her partner during a lift. She sought to recover damages against the casino, basing her claim on the casino’s alleged failure to provide a safe workplace. In support of that claim she argued that she had been dropped by her partner because of his fatigue, which was directly attributable to the casino’s scheduling of performances seven days a week. The lower court granted summary judgment in favor of the casino. The Appellate Division affirmed. In doing so, the Court found no question that there was an employment relationship between the dancer and the production company and that there was an independent contractual relationship between the production company and the casino. As a matter of law, a landowner is not ordinarily liable for injuries sustained during the course of the work by the employees of its independent contractor. Even though a landowner has a non-delegable duty to use reasonable care to protect invitees against known or discoverable dangers, that duty does not extend to employees of independent contractors in respect of dangers inherent in a performance of the work that is the subject of the contract. It was obvious to the Court that the dancer’s fall during a lift by her partner was a hazard of the work itself. The Court rejected the dancer’s claim that the casino retained control over the manner in which the work was done by scheduling daily performances. The Court found that the casino scheduling did not require each dancer to work seven days a week. It was the production company that retained the day-off decision. Obviously, the production company could have employed additional dancers in order to provide each with a day off and still comply with its own seven-day a week contractual undertaking.


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