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Donch v. Delta Inspection Services Inc.

Decided: January 19, 1979.


Dreier, J.s.c.


Defendant Exxon Corporation (Exxon) has moved for summary judgment in this wrongful death action brought by plaintiff Margaret Donch. This court reserved decision after receipt of supplemental briefs and argument. Although the central issue here is one of first impression in this State, there is no issue of material fact. Summary judgment may therefore be granted in favor of defendant Exxon. R. 4:46-2. Judson v. Peoples Bank & Trust Co. of Westfield , 17 N.J. 67, 74-75 (1954).

Plaintiff's decedent, Kenneth Donch (Donch), was employed by Delta Inspection Services, Inc. (Delta), which was in the business of providing various inspection services. Exxon hired Delta as an independent contractor to inspect salt water suction lines, including underwater pipes at an Exxon salt water pumping station. Though Delta received from Exxon general safety instructions routinely issued to independent contractors, Exxon provided no specific instructions regarding diving operations. Employees of Exxon monitored the status of Delta's work at the pumping station, but only to gather the data Delta was hired to provide.

On December 18, 1976, Donch was working underwater at the Exxon pumping station, wearing diving gear, including a dry suit with breathing apparatus, weight belts, rubbers

and a face mask. He was assisting and under the supervision of Andrew Duran, president of Delta. While working with Duran, Donch drowned.

Plaintiff Margaret Donch brought suit, both individually and as administratrix of her son's estate, against Exxon, Delta and manufacturers of the diving equipment. Plaintiff originally claimed that Exxon (1) negligently failed to provide Donch with a reasonably safe place to work, (2) retained control over the diving operations and negligently failed to adequately supervise Donch, and (3) negligently engaged an independent contractor who failed to adequately supervise the inspection work. Plaintiff also asserted the vicarious liability of Exxon for the negligence of Delta, its independent contractor, in carrying out an inherently dangerous activity.

Plaintiff adduced no evidence beyond the bare allegations of the pleadings regarding the first three of its arguments, and plaintiff did not urge these grounds upon the court at oral argument. Primary liability requires that defendant be found negligent in its own actions or nonactions. Trecartin v. Mahony-Troast Const. Co. , 18 N.J. Super. 380, 389 (App. Div. 1952); Reiter v. Max Marx Color & Chemical Co. , 35 N.J. 37 (1961). In the present case Exxon engaged a competent contractor, provided plaintiff with a reasonably safe working place and retained no control over Delta's diving activities; there thus have been established no grounds upon which primary liability may be based. See Rodrigues v. Elizabethtown Gas Co. , 104 N.J. Super. 436, 442 (App. Div. 1969).

The general rule governing vicarious liability for the negligence of an independent contractor is that of nonliability:

In Majestic Realty the court established the exception to the nonliability rule, holding that when the activity is inherently dangerous, "the duty owed [by the landowner] is nondelegable. That is, the duty is absolute, not the liability, and it cannot be put aside and immunity gained through the agency of an independent contract." Id. at 438.

When the Supreme Court established the inherent danger exception to nonliability in Majestic Realty , it did so in the context of a suit by adjoining landowners against an owner whose contractor's negligence resulted in damage to adjacent property. The court described the razing operation in question as being "inherently dangerous because its very nature involves a peculiar and high risk of harm to members of the public or adjoining proprietors of the land unless special precautions are taken * * *." Id. at 436. (Emphasis added). The landowner will therefore not be permitted to escape liability for injuries to third parties arising out of inherently dangerous work. Araujo v. N.J. Natural Gas Co. , 62 N.J. Super. 88 (App. Div. 1960), certif. den. 33 N.J. 328 (1960). No mention is made in Majestic Realty of dangers to employees of the contractor working on the site.

Is an employee of an independent contractor included within the category of "members of the public," "third parties" or "others" (cf. Restatement, Torts 2d, ยงยง 413, 416, 427) for purposes of the inherent danger exception? The inherent danger doctrine has never been extended to ...

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