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O’Brien v. Bristol Myers Squibb Company

2010 WL 2990948 (N.J. Super. App. Div. 2010) (Unpublished)

LANDOWNER’S LIABILITY; CONTRACTORS — Even though the occupier of land owes a duty to invitees to use reasonable care to make its premises safe, there is an exception for independent contractors who are invited onto the land to perform a specific task with respect to the hazard itself.

The owner of a manufacturing facility hired a contractor to perform certain services within the facility. An employee of that contractor was injured while performing those services. The contract between the manufacturing company and the contractor obligated the contractor to “retain only individuals with suitable professional training to perform the service[s] for” the manufacturing company and the contractor was “responsible for adhering to all individual [manufacturing company’s] safety, occupational, health, environmental and operating procedures as well as to all local, state and federal laws and regulations including but not limited to [the] Occupational Safety and Health Act (OSHA).” The contractor was also required to supply “all associated safety equipment.”

Under New Jersey law, “an occupier of land owes a duty to his invitee ‘to use reasonable care to make the premises safe ... .” Even an independent contractor hired to do work on the premises or an employee of that contractor, while executing the work, is an invitee. This duty “includes the obligation of making a reasonable inspection to discover dangerous conditions” which can be satisfied by “warning the independent contractor of the dangerous condition.” Where this duty is breached, the landowner will have liability for an invitee’s injury even if the invitee is an independent contractor.

Significantly, the law carves out an exception to the requirement that the premises be made safe for an independent contractor when the contractor is invited onto the land to perform a specific task in respect of the hazard itself. New Jersey’s law is that “the duty to provide a reasonably safe working place for employees of an independent contractor does not relate to known hazards which are part of or incidental to the very work the contractor was hired to perform.” This exception only applies when “the landowner does not retain control over the means and methods of the execution of the project.” Here, the injured worker insisted that the manufacturing company had retained “substantial control over all [the contractor’s, its employer’s] activities.” Specifically, the injured worker claimed “he had to climb over or under pipes to operate the valves as a result of the placement of the pipes and machinery by [the manufacturing company] which had ‘exclusive control over the means and methods of the work’ and ‘complete control over’ [the manufacturing company’s] central utilities complex.”

Based on the terms of the contract, however, the Court agreed with the lower court’s ruling that the injured worker’s employer, and not the manufacturing company, maintained day-to-day control over the central utilities complex and, as a result, the landowner was relieved of liability because the worker was injured while performing “a specific task with respect to the hazard itself.”

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