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Pettenger v. Jubanowsky

A-5849-03T1 (N.J. Super. App. Div. 2005) (Unpublished)

LANDOWNER’S LIABILITY—A contractor injured in the course of engaging in the contracted tasks cannot complain about an ordinary hazard that he or she could expect to encounter in the course of performing those tasks.

The employee of a propane fuel company slipped on snow while making a delivery. He was dragging a propane refill hose to a storage tank located about 150 feet away from the home’s driveway. His employer had recommended the tank’s location “because it was out of the way, yet easily accessible from the driveway.” The propane fuel company owned the tank and, in its supply contract, reserved the right to suspend delivery if, in the fuel company’s opinion, “the access route [was] unacceptable due to snow, ice, mud or other condition.” The company’s employee was on his regular route and he delivered propane to the same house on previous occasions. He was supplied with snow spikes, but chose not to wear them. When he reached the tank with the hose, he fell, injuring his knee. In the suit that followed, he claimed that the homeowner “owed [him] a duty of care to clear a path from the driveway to the tank.”

The Appellate Division explained some aspects of the relevant law. “Generally, a landowner has ‘a non-delegable duty to use reasonable care to protect invitees against known or reasonably discoverable dangers.’ ... That duty encompasses making reasonable inspections of land to discover any latent material defects. ... It is also well settled that an individual entering another’s premises to make a delivery enjoys the status of ‘business invitee’ so long as he remains ‘within the bounds of his invitation.’” The Court, however, also pointed out that the general rule is not “immutable or inflexible.” In fact, according to a 1993 New Jersey Supreme Court case, “[t]he actual imposition of a duty of care and the formulation of standards defining such a duty derive from considerations of public policy and fairness. ... Thus, ‘[w]hether a person owes a duty of reasonable care ... turns on whether the imposition of such a duty satisfies an abiding sense of basic fairness under all of the circumstances in light of considerations of public policy.’” After reviewing the facts, the Court found no liability on the part of the homeowner. Although it did not know the timing of the snowfall, it found that “the snow-covered ground was open and obvious, the snow was ankle deep, and the route [the injured driver] traversed was neither a regular walkway nor a driveway. Moreover, the tank was installed in a location that [the driver’s] employer had recommended, and [the driver] could have exercised his employer’s contractual right to postpone the delivery if he decided that access was ‘unacceptable due to snow [or] ice… .’” The landowner’s duty to provide a reasonably safe place to work “is relative to the nature of the invited endeavor and does not entail the elimination of potential hazards which are obvious and visible to the invitee upon ordinary observation.” Furthermore, the driver “was not merely walking to a job site; he was engaged in a task he was hired to perform—dragging the hose from the truck to the tank.” As a party actively involved in a task he was hired to perform, he could not complain about an ordinary hazard that he could have expected to encounter in the course of performing his duty.


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