For affirmance -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Schettino and Haneman. For reversal -- None. For reversal -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Francis, J.
[38 NJ Page 552] Plaintiff Edwin L. Mayer sought damages from defendant Fairlawn Jewish Center on account of injuries suffered by him while an invitee on its premises. Randall Construction Co., Inc. was joined as defendant because at the time of the accident it was engaged in making substantial repairs and alterations to the Center's building. The suit was predicated upon the theory that the negligence of one or both defendants caused the mishap and consequent injuries. Center filed a cross-claim against Randall for breach of the construction contract between them, seeking recovery for any sum plaintiff might be awarded or collect against Center. The trial court severed the cross-claim, following which the
action proceeded to trial against defendants and resulted in an award to plaintiff based upon a finding by a jury that plaintiff's accident had resulted from their combined negligence. Thereupon the trial court dismissed the cross-claim. Appeal to the Appellate Division followed, challenging the propriety of the damage verdict and dismissal of the cross-claim. Both phases of the judgment were affirmed. 71 N.J. Super. 313 (1961). We granted certification. 37 N.J. 90 (1961).
On its appeal Center advances two contentions: First, it is a charitable corporation within the meaning of L. 1958, c. 131, and since plaintiff was a recipient of its benefactions at the time of the accident, it is immune from liability under that enactment. Second, under the construction contract Randall agreed to assume the burden of protecting Center's invitees on the premises from injury arising out of the work. Plaintiff's injury having arisen from Randall's failure to provide reasonable safeguards against a work-connected danger, Center is entitled to recover from Randall any sum it becomes liable to pay plaintiff. Randall's appeal to the Appellate Division and in this court was based upon an allegation that plaintiff was guilty of contributory negligence as a matter of law.
It is not necessary to repeat the facts adduced at the trial. They are adequately set forth in the opinion below. (71 N.J. Super., at pp. 315-317). We agree with the conclusion reached by the Appellate Division that plaintiff cannot be classed as a beneficiary of the Center's bounty within the contemplation of the statute. Id., at pp. 317-321.
We desire to emphasize further plaintiff's capacity as an employee of Development Corporation of Israel. Assuming, arguendo, his employer was a recipient of Center's benefactions, Mayer's status on the premises cannot be measured by that of his employer. His rights so far as the statutory
immunity is concerned depended upon his own individual relation with the Center. True, he was on the premises under the aegis of his employer, and by virtue of the employer's arrangement became an implied invitee of the Center. But he was there in fulfillment of his function and obligation as an employee to engage in the employer's work at the direction of the employer, and not for the purpose of receiving personally the philanthropy of the Center. Under the circumstances present he was a stranger to the charity and the statute does not stand in the way of recovery. See, Rose v. Raleigh Fitkin-Paul Morgan, etc., Foundation, 136 N.J.L. 553 (E. & A. 1948); Edwards v. Hollywood Canteen, 27 Cal. 2 d 802, 167 P. 2 d 729 (Sup. Ct. 1946); Andrews v. Young Men's Christian Ass'n of Des Moines, 226 Iowa 374, 284 N.W. 186 (Sup. Ct. 1939); Sisters of Charity of Cincinnati v. Duvelius, 123 Ohio St. 52, 173 N.E. 737 (Sup. Ct. 1930); Gartland v. New York Zoological Society, 135 App. Div. 163, 120 N.Y.S. 24 (App. Div. 1909); Bruce v. Central Methodist Episcopal Church, 147 Mich. 230, 110 N.W. 951, 10 L.R.A., N.S., 74 (Sup. Ct. 1907).
Randall's contention that plaintiff was guilty of contributory negligence as a matter of law is without merit. As the Appellate Division held, the issue was properly submitted to the jury for determination. The evidence showed that the door through which plaintiff passed into the area of the incomplete construction work was neither locked nor barred; it had a lighted exit sign on or over it and allegedly one of Center's employees pointed the door out to him as an available means of departure from the building. Plaintiff was not aware of any danger on the outside in fairly close proximity to the door, and in the face of circumstances fairly implying an invitation to use the exit, the jury was the proper agency to decide whether he was guilty of any culpable contribution to the accident.
Under the circumstances of this case, Center had a nondelegable duty to exercise reasonable care for the safety of persons using the premises at its invitation. If, while repairs or structural alterations were going on, a dangerous condition was created which resulted in injury to an invitee, liability for damages would exist. And with respect to that liability it would be immaterial whether the construction work was being performed by Center's own employees or by an independent contractor. Gill v. Krassner, 11 N.J. Super. 10, 15 (App. Div. 1950); Levine v. Bochiaro, 137 N.J.L. 215, 219 (E. & A. 1948); Rizzi v. Ross, 117 N.J.L. 362, 365-366 (E. & A. 1937); Hussey v. Long Dock R. Co., 100 N.J.L. 380, 384 (E. & A. 1924); 2 Harper & James, Law of Torts, § 26.11 (1956); Prosser, Torts, §§ 64, 78 (2 d ed. 1955); 2 Restatement, Torts, 1128, § 416; see Blancher v. Bank of California, 47 Wash. 2 d 1, 286 P. 2 d 92, 95-96 (Sup. Ct. 1955). Apparently, awareness of such exposure resulted in the following provision in the contract between Center and Randall:
"PROTECTION OF WORK, PROPERTY & PERSONS.
The Contractor shall adequately protect the work, adjacent property and the public and shall be responsible for any damage or injury due to his act or neglect."
Although the quoted clause could not relieve Center of responsibility for injuries negligently inflicted upon third persons as a result of Randall's work, there is no reason in law or public policy why contracting parties cannot agree between themselves that the contractor would assume and agree to perform the contractee's non-delegable duty, as well as his own separate common law duty, to protect third persons against such harm. When a compact of that type is made, obviously the parties have in contemplation that ...