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Slack v. Whalen

327 N.J. Super. 186, 742 A.2d 1017 (App. Div. 2000)

CONTRACTORS; LIABILITY—Homeowners are not obligated to hire general contractors for a home construction project and do not automatically assume liability for failing to provide a safe work site for contractor’s employees.

A couple owned a small undeveloped lot and hired a builder to act as their “general contractor” in building a house on the lot. When the builder failed to perform, the owners, who had no training or experience in home construction, took over the project. Using the plans prepared by an architect, they obtained the building permits and financing, hired and paid the various contractors, and assumed the numerous administrative responsibilities required to coordinate the project. While spackling sheetrock, a contractor’s employee realized that he could not reach the uppermost part of the house’s cathedral ceiling. Consequently, he “climbed into the rafters,” and, using a board that had been placed there by another of his employer’s workers, began to spackle the ceiling. The board broke and he fell approximately ten feet to the floor. He sued the property owners, alleging that they assumed administrative control over the house construction project, and therefore, because he was an employee of one of the individual contractors, the homeowners owed him a duty to assure his safety by complying with regulations promulgated under the Occupational Safety & Health Act. The lower court disagreed, and the Appellate Division affirmed. The worker’s “boss” was on the construction site, but the worker did not ask him what to do when the scaffolding proved inadequate to reach the highest point of the ceiling. The property owners were not present at the time of the accident, and did not learn of it until a few weeks later. They did not have a contractual arrangement with the contractor or any other contractor requiring them to oversee either the performance of their work or OSHA compliance. They did not provide oversight or in any way supervise the work of the contractors they hired. Nor were they present at the construction site during the work day. At night, their son, who had no experience with home construction, went to the house and inspected the daily progress of the work. They provided no equipment or assistance to the spackler. They were completely unaware that a board had been placed in the rafters, or that a worker was using it as a platform from which to spackle the ceiling. Determining the scope of tort liability is the responsibility of the courts, and “[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.” Here, the Court held that the property owners could reasonably assume that the spackling contractor was sufficiently skilled and knowledgeable to assure its own workers’ safety in performing the spackling work. “Given the nature of the risk, the lack of foreseeability of that risk, and the relationship between plaintiff and defendants, which in no way implicated worker-safety concerns or suggested that defendants had the capacity to control plaintiff’s performance, [the Court concluded], as a matter of ‘fairness and policy,’ that defendants had no legal duty to exercise reasonable care for plaintiff’s safety at the worksite.” Further, although “OSHA regulations are pertinent in determining the nature and extent in any duty of care,” their violation “without more does not constitute the basis for an independent or direct tort remedy.” Consequently, no tort duty can be imposed for injuries sustained on a construction site by a contractor’s employee solely because violations of OSHA regulations have occurred. Because the risk of injury to the worker was not objectively foreseeable by the property owners, and because no relationship implicating safety concerns existed between the worker and property owners, even if the property owners could be viewed as “general contractors” for the project, “fairness and policy” precluded imposing a tort duty on them. Further, the Court also rejected the worker’s contention that the property owners had a legal duty to retain an experienced “general contractor” who would have been responsible for safety oversight on the project.


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