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Stonestreet v. Marlowe

A-4479-03T1 (N.J. Super. App. Div. 2005) (Unpublished)

CONTRACTORS; LANDOWNER’S LIABILITY—Where a property owner’s involvement in a construction project, even one without a general contractor, is limited to aesthetic matters and general supervision of the pace of the work, the owner is not assumed the obligation to oversee safety at the site.

For a number of months, a plumber worked on an unfinished house as a contractor. The plumber “was injured when he fell through the opening for a stairwell in” the house and thereafter sued the homeowners, claiming that they “had assumed the role of general contractor.” “[A] staircase was to be installed ... in the house” and “[t]he opening for the staircase had been cut and protected with a large plywood cover.” The plumber was “injured when he fell through a circular cutout in the second floor.” He “alleged that the covering was inadequately secured.” The homeowners moved to dismiss the victim’s claim, contending that they had not “assumed the role of general contractor” since “they did not instruct any subcontractor how to perform specific tasks.”

The lower court dismissed the plumber’s suit, finding that the homeowners “had undertaken some of the functions of a general contractor but not to the extent that they assumed the responsibility for safety on the job site.” Additionally, the lower court found that the evidence merely showed that the homeowners had paid bills, were on the site everyday, made aesthetic decisions, and provided “practical information as to the scheduling of subs.” Finally, the lower court “also found that every contractor on the site was a skilled and experienced tradesman and that ‘they surely weren’t looking to the [homeowners] to determine what safety standards should be applied.’” The plumber appealed from this decision.

The Appellate Division held that in general, “a general contractor is relieved from liability for the negligence of a subcontractor.” Additionally, the Court held that if “the general contractor” knows about “the dangerous condition, is responsible for the progress of the work, has” attempted “to correct the dangerous condition, and” was able “to cure the dangerous condition or remove the dangerous instrumentality from the work site, the contractor will assume a duty of reasonable care to assure the safety of another contractor on the work site.” In the case at bar, the Court found that the homeowners “retained the services of a series of construction managers” after the general contractor’s termination. Additionally, the Court found no evidence that the homeowners or the site’s construction manager had retained the plumber “as the plumbing contractor on the job.” An earlier contractor had. Moreover, the Court found that the homeowners “did not assume the responsibility for the installation of any equipment or the performance of any trade specific work,” nor did they individually or together supervise “the manner in which any subcontractor performed its various tasks.” Their participation was “limited to aesthetic matters and general supervision of the pace of the work.” Furthermore, the Court found that the plumber’s “risk of injury ... was not objectively foreseeable to the” homeowners, nor was there any basis to find “that they assumed the obligation to oversee safety at the site.”

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