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Raimo v. Fischer

372 N.J. Super. 448, 859 A.2d 709 (App. Div. 2004)

CONTRACTORS; LIABILITY—A general contractor is not vicariously liable for the negligence of its subcontractors and without a contractual obligation to supervise all construction work, the general contractor is not liable for a temporary, unsafe condition created by its subcontractor.

Property owners contracted with a general contractor to build a house. A visitor came to meet with one of the subcontractors and was injured when a staircase fell away from the house. The visitor sued the owners, the contractor, and the subcontractors. During discovery, it was revealed that the staircase was temporary and that one of the subcontractors had attached it to the house to gain access to the upper levels during construction. During the week before the accident, another subcontractor had removed the staircase to work on part of the house. However, someone then retrieved it and merely rested it against the house. The contractor speculated that it might have been kids in the neighborhood. Without knowing that it was not attached to the house, yet another subcontractor began using it.

All defendants moved for summary judgment. The lower court granted the motions, concluding that knowledge of the hazardous condition of the staircase could not be imputed to any of them. The Appellate Division reversed as to the subcontractor that had used the staircase without checking to see if it had been reattached. It concluded that a contractor’s duty of care for the safety of individuals who come to a construction site is governed by general negligence principles and not by the special rules limiting the liability of landowners. Unlike a landowner, a contractor has a duty to maintain its construction site in a reasonably safe condition for persons reasonably expected to come onto the site. This duty would have included making sure that the staircase was properly attached to the house. The Court found that the risk of injury was foreseeable if the staircase fell. Even though the subcontractor had no relationship to the injured party, it had a contractual relationship to the property owners through the general contractor. The Court pointed out that the property owners had come to the site that very morning and had also been placed at risk by the subcontractor’s failure to ensure that the staircase had been attached. Under the circumstances, the Court concluded that the subcontractor had a duty to take reasonable measures to ensure that the staircase had been properly reattached. The Court held that a reasonable fact-finder could conclude that the subcontractor had breached that duty.

The Court also held that a general contractor is not vicariously liable for the negligence of its subcontractor. Thus, without a contractual obligation to supervise all of the construction work, a general contractor cannot be liable for a temporary unsafe condition caused by a subcontractor when the general contractor is not on the site. There was no evidence to support a finding that the general contractor was the one who replaced the staircase.

Additionally, the Court concluded that there was no basis to impose liability on the property owners. It found that the property owners’ liability was governed by common law premises liability principles and that they merely had contracted with the general contractor to build a house on their property. The Court held that the property owners did not control the manner in which the house was built and were not present at the site except for visits on the weekends. Even though the property owners were present on the site on the date of the accident, the Court concluded that there was no evidence that they were responsible for placing the staircase against the house or that they knew, or should have known, that the staircase was unsafe. Finally, they could not be held vicariously liable for the subcontractor’s alleged negligence.

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