Sullivan, Kolovsky and Carton.
[93 NJSuper Page 430] Plaintiff's decedent fell to his death on February 5, 1965 through a hole in the roof of a warehouse building owned by defendant Harry Sussna Enterprises, Inc. (Enterprises). It was being constructed on property owned
by Enterprises at Lakewood. In an action brought by plaintiff against Enterprises and other defendants for decedent's death, the trial court granted a summary judgment in favor of this defendant. Plaintiff appeals.
Enterprises had entered into an agreement to lease the premises, including two buildings to be erected thereon, to Level Lines, Inc. (Level). Enterprises then entered into a contract with Robilt Construction Company, Inc. (Robilt) by which Robilt agreed, for the sum of $441,000, to erect the buildings, one the office building and the other the warehouse. The contract obligated Robilt to perform all the construction work under the contract called for by the architect's plans, including the construction of railroad sidings and a water line. However, the contract provided that the contractor should not be responsible for providing and installing concrete curbs, landscaping and pavement markers, for which Enterprises agreed to be responsible. The contract also provided that the owner was to furnish and install all lamps, bulbs and tubes for exterior and interior fixtures in the buildings and install the sound system in the office building.
The complaint alleged that at the time of the accident decedent was an employee of a subcontractor performing work on the roof of the warehouse. It asserted that other subcontractors were engaged in certain steel work being performed on the project. Plaintiff charged that the steel subcontractors failed to use reasonable care in performing their work and that defendants Enterprises and Level Lines, Inc. had been negligent in the supervision and control of the premises and the construction work thereon. Particularly, plaintiff claimed that decedent's fall resulted from the failure to provide coverings on the openings or to place barriers around them.
An affidavit filed by Enterprises in support of its motion for summary judgment established that Robilt performed all the construction work in accordance with the contract and was in full and complete charge of it; that all subcontractors who performed work were employed or supervised by Robilt;
and that all work done upon or about the roof of the warehouse was done by Robilt's employees or those of its subcontractors.
It established further that Enterprises had no contract with any other person involving construction of the warehouse; that all money expended for the performance of the construction was paid by Enterprises and that Enterprises had nothing to do with the construction or the supervision thereof. Specifically, it showed that no one associated with Enterprises was present at the time of the accident and that none of its agents or employees had anything to do with the construction or installation of the roof where decedent fell.
Plaintiff's contention on this appeal is that Enterprises, as owner of the premises, was required by the provisions of the Construction Safety Code (1963) promulgated under the Construction Safety Act (N.J.S.A. 34:5-166 et seq.) to provide coverings over the holes or barriers around the opening through which decedent fell. Failure to do so, it claims, constitutes evidence of negligence sufficient to warrant the submission of the issue to the jury. This claim rests upon the familiar doctrine that where a penal statute, although conferring no private right of action upon an injured party, establishes a standard of conduct, its violation may constitute evidence of negligence in a civil action. See Carlo v. The Okonite-Callender Cable Co., 3 N.J. 253 (1949).
The cogence of this argument depends upon the proper interpretation to be placed upon section 3.15 of the Safety Code. That section reads as follows:
"3.15 Responsibility for Project Protection
3.15.1 Where one contractor is selected to execute the work of the project, he shall assure compliance with the requirements of this code from his ...