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Tomkins v. Rein

A-3005-04T3 (N.J. Super. App. Div. 2006) (Unpublished)

LANDOWNERS LIABILITY; NEGLIGENCE; CONTRACTORS—A personal relationship of friendship between a worker and an independent contractor does not exempt the worker from the principle that, absent narrow circumstances, a landowner is not liable to such a worker where the worker’s injury arose out of the very hazards inherent in the contracted for work.

A homeowner required removal of a large evergreen tree from her front yard. When the homeowner mentioned the need to remove the tree, her co-worker explained that he operated a part-time business doing odd jobs, including removing trees. The tree remover inspected the tree with another man who would assist in the removal, quoted a price, and assured the homeowner/co-worker that he had prior tree felling experience. A childhood friend of the tree remover had assisted the tree-remover on prior occasions doing odd jobs, but none involved tree removal.

On the day scheduled to remove the tree, all three men went to the homeowner’s property to remove the tree. The homeowner greeted the men then left. The childhood friend borrowed a harness and brought his chainsaw. Using the harness, the childhood friend climbed the tree and began to cut. While the childhood friend was cutting the tree, neither the tree remover nor the other man, both on the ground, held the rope tied around the tree. The tree snapped back, struck the childhood friend, causing him to be injuried.

The childhood friend sued the homeowner, the tree remover, and the other man. However, the claims against the tree remover and the other man were voluntarily dismissed because they were uninsured. The lower court granted the homeowner’s motion for summary judgment dismissing the complaint. The childhood friend appealed the lower court’s order. Claiming that his cause of action fell within the exceptions to the general rule that landowners are not liable for the negligence of independent contractors, the childhood friend sought to impose liability for his injuries on the homeowner, asserting that she hired an incompetent contractor, or in the alternative, because the work in removing the tree was inherently dangerous.

In ascertaining the homeowner’s liability, the Appellate Division stated the rule that a “negligence cause of action requires proof that a defendant owed a duty of care, the defendant breached that duty, and injury was proximately caused by the breach.” While a homeowner generally owes a duty to use reasonable care to protect invitees against known or reasonably discoverable dangers existing on their property, in New Jersey, a homeowner who hires an independent contractor is generally not responsible for the negligent acts of that contractor. Further, the Court stated the principle set forth by the New Jersey Supreme Court: “where a person engages a contractor, who conducts an independent business by means of his own employees, to do work not in itself a nuisance ..., he is not liable for the negligent acts of the contractor in the performance of the contract.” Exceptions arise where the property owner retained control of the manner and means of doing the work, where the property owner engaged an incompetent contractor, or the activity contracted for constituted a nuisance per se.

Turning to this case, there was no disagreement as to the tree-remover’s status as an independent contractor. The childhood friend argued, however, that he was merely the tree remover’s friend and not an employee nor a co-independent contractor. He also argued that the homeowner knew or should have known of the tree remover incompetence because they were co-workers at a health center. And lastly, he argued that the removal of the homeowner’s large tree was inherently dangerous.

The Appellate Division was dubious of the childhood friend’s arguments. It explained that the childhood friend’s personal relationship with the tree remover did not change his legal relationship with him. The childhood friend was hired to assist in removing the tree, he expected payment, provided tools necessary to perform the job, and initiated his own role in that job. He did not stand as an innocent third party who suffered injuries as a result of inherently dangerous work. In finding that the homeowner was not liable for the childhood friend’s injuries, the Court relied on the principle that liability does not extend to an employee of an independent contractor whose injury results from the very risks which are inherent to the work he or she was hired to perform. Accordingly, the Court affirmed the judgment of the lower court.


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