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Pfenninger v. Hunterdon Central Regional High School

338 N.J. Super. 572, 770 A.2d 1126 (App. Div. 2001)

LANDOWNER’S LIABILITY; CONTRACTORS—Even though neither a landowner nor a contractor usually has duties to protect a subcontractor’s employee from the very hazards created by the performance of the subcontracted work, where there is evidence of some participation, interference or exercise of some control over the work, a duty of care may fairly be imposed.

The owner and principal of an excavation contracting company was crushed to death when a trench collapsed on him. The contractor was installing drainage pipe at a high school. The contractor’s spouse filed a wrongful death action against the board of education as owner of the land and against the architect who designed the project. Finding that the board was no more than a mere landowner and the architect was no more than a mere architect, the motion judge granted summary judgment to both the board and the architect. The spouse appealed contending that both the board and the architect owed her husband a duty of care. The Appellate Division reviewed the lower court record under the summary judgment standard set forth in Brill and identified several important facts: a board member ordered the wrong type of drainage pipe which required the contractor to enter the trench which he otherwise would not have had to do; representatives of the board and the architect were present at the site and were aware of “problems” with the trenching activities, including the accumulation of water in the trench; and the testimony of two experts which concluded that a trench collapse was foreseeable. On these facts, the Appellate Division found that a reasonable jury could find that these defendants owed the contractor a duty of care. The law is clear, “a landowner or general contractor has a non-delegable duty to ensure the safety of the premises upon which work is to be performed. Equally so, however, it is generally said that neither is under a duty to protect an employee of an independent contractor or subcontractor from hazards created by the performance of the contracted work. But where there is evidence of some participation, interference or exercise of some control over the work, a duty of care may fairly be imposed.” Here, although neither the board nor the architect had any contractual on-site responsibilities, a reasonable jury could conclude that there was, nonetheless, a substantial on-site relationship. On this basis, the Court reversed the motion judge reasoning that “there was enough in the summary judgment record to impose a duty of care sufficient to survive summary judgment.”


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