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Izhaky v. Jamesway Corp.

Decided: April 16, 1984.

JOSEPH IZHAKY AND BARBARA IZHAKY, PLAINTIFFS-RESPONDENTS,
v.
JAMESWAY CORPORATION, A BODY CORPORATE, DEFENDANT-APPELLANT



On appeal from Superior Court of New Jersey, Law Division, Hudson County.

Fritz, Furman and Deighan. The opinion of the court was delivered by Fritz, P.J.A.D.

Fritz

Plaintiff,*fn1 the employee of an electrical contractor retained by defendant to relocate a switch and install wall outlets as a portion of defendant's remodeling a section of its headquarters, was seriously injured when his hand came in contact with a live wire. The jury returned a verdict for $150,000 but apportioned negligence 65% to 35% between defendant and plaintiff, respectively, so that judgment was entered in favor of plaintiff and against defendant for $97,500.

The essence of defendant's appeal implicates the legal question: what is the duty owed by an owner to the employee of an independent contractor respecting hazards incidental to the nature of the work? In this matter we are concerned with electrical shock to an electrician.

Defendant insists there is no duty owed to protect an electrician from the hazards of electricity inherent in the very work he was hired to perform. A proposition which wholly insulates an owner from liability for injuries to the employee of an independent contractor without regard for the condition of the

premises, where, as here, the actual production of the injury was from a source directly related to the work, is rejected.

Citing Rodrigues v. Elizabethtown Gas Co., 104 N.J. Super. 436 (App.Div.1969), defendant concedes that ordinarily a landowner owes a duty to employees of an independent contractor who come upon the property to provide those employees with a reasonably safe place to work. We would add that this duty is nondelegable. Id. at 442. But defendant seeks haven in Wolczak v. National Electric Products Corp., 66 N.J. Super. 64 (App.Div.1961) where the following, adopted in Rodrigues, appears:

The duty to provide a reasonably safe place in which to work is relative to the nature of the invited endeavor and does not entail the elimination of potential operational hazards which are obvious and visible to the invitee upon ordinary observation. Horton v. Smith, 128 N.J.L. 488 (Sup.Ct. 1942); Mergel v. Colgate-Palmolive-Peet Co., 41 N.J. Super. 372, 378-79 (App.Div.), certification denied 22 N.J. 453 (1956). This is especially so when the invitee is an experienced laborer hired either to correct the very danger present or to perform his tasks amidst the visible hazards. The landowner may assume that the worker, or his superiors, are possessed of sufficient skill to recognize the degree of danger involved and to adjust their methods of work accordingly. Thus the unimpaired line of holdings to the effect that the duty to provide a reasonably safe working place for employees of an independent contractor does not relate to known hazards which are part of or incidental to the very work the contractor was hired to perform. McDonald v. Standard Oil Co., 69 N.J.L. 445, 448 (E. & A. 1903); Broecker v. Armstrong Cork Co., 128 N.J.L. 3 (E. & A. 1941); Beck v. Monmouth Lumber Co., 137 N.J.L. 268 (E. & A. 1947); Gibilterra v. Rosemawr Homes, supra, 19 N.J. [166] at page 170; Huels v. General Electric Co., 134 N.J.L. 165 (Sup.Ct. 1946); Canonico v. Celanese Corp. of America, 11 N.J. Super. 445, 454 (App.Div. 1951); Trecartin v. Mahony-Troast Construction Co., supra, 18 N.J. Super. [380] at p. 386; Mergel v. Colgate-Palmolive-Peet Co., supra, 41 N.J. Super., at p. 379; Jensen v. Somerset Hospital, 58 N.J. Super. 204, 208 (App.Div. 1959), certification denied 31 N.J. 551 (1960). See 3 Stevenson, Law of Negligence (1954), ยงยง 863, 865, pp. 1316-17, 1318-20. [At 75.]

This reliance ignores the further instruction of Wolczak that "active interference of the owner in the manner of doing the work may implicate him in negligence for injuries to the employees . . . related to the manner in which the work is performed or to the furnishing of defective equipment." Id. at

73. Moreover, it unjustifiably ignores so much limitation of the Wolczak holding as is there expressed in terms of relieving the owner from any obligation to eliminate "potential operational hazards which are obvious and visible to the invitee upon ordinary observation." Id. at 75; emphasis supplied. It occurs to us that this implies a duty upon the owner to eliminate or warn of potential operational hazards which are not or may not be obvious and visible to the invitee, i.e., here the electrical contractor, upon ordinary observation.

Plaintiff produced evidence that preparatory carpentry work necessary to the electrical work to be done was undertaken by defendant through its employees. This consisted in part at least of the removal of a wall containing the switch which was to be relocated. While there is some factual uncertainty created by the testimony respecting whether, in the course of this, defendant's employees, in removing the switch box from the wall, wrapped tape around the switch in the box or left the box taped but without a switch and with bare wires, no one disputes the fact that these employees ...


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