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Cassano v. Aschoff

Decided: June 27, 1988.

JAMES CASSANO, PLAINTIFF-APPELLANT,
v.
WALTER ASCHOFF, DEFENDANT, AND LOIS DECARLO IMPROPERLY PLEADED AS LOUIS DECARLO, ROBERT DECARLO AND MANOR BEVERAGES, INC. T/A MANOR BEVERAGES, DEFENDANTS-RESPONDENTS. LOIS DECARLO AND ROBERT DECARLO, THIRD PARTY PLAINTIFFS-RESPONDENTS, V. CHARLES GERMAINE, THIRD PARTY DEFENDANT-RESPONDENT



On appeal from Superior Court, Law Division, Bergen County.

Pressler, Bilder and Gibson. The opinion of the Court was delivered by Gibson, J.s.c. (temporarily assigned).

Gibson

By this appeal plaintiff seeks to impose liability on landowners for injuries he sustained while an employee of an independent contractor. Among other things, plaintiff seeks to impose that liability based on the landowners' hiring of an independent contractor who was financially insecure. The trial court dismissed the claim at the end of plaintiff's case pursuant to R. 4:37-2(b). We affirm.*fn1

Plaintiff James Cassano was severely injured when struck by a falling tree limb during the course of his employment with Walter Aschoff. According to the plaintiff's proofs, Aschoff is an independent contractor engaged in the tree removal business who was hired by co-defendants Robert DeCarlo and Manor Beverages to remove a large tree from their common property line. Although Aschoff had considerable experience, having worked for others in the tree-removal business for many years,

this was one of the first jobs he had undertaken on his own. Before commencing the work, he had promised DeCarlo and Manor Beverages that he would assume full responsibility for the conduct of the job. Although he also represented that he was fully insured, he failed to produce proof of insurance and in fact, was covered neither by liability nor workers' compensation insurance.

Plaintiff submitted no evidence regarding any prior acts of negligence by Aschoff or impugning his reputation for competency, financial or otherwise. Nor did plaintiff testify to any inquires that he had made on these subjects. Nor, except for their awareness of his failure to produce evidence of insurance, was there any evidence that the property owners had reason to believe that Aschoff was not a competent and responsible contractor. Although, as it turned out, he performed the job negligently and was uninsured, we agree with the trial judge's conclusion that without more, these facts do not establish a basis for imposing liability on the landowners.*fn2

It has long been the rule in New Jersey and elsewhere that one who hires an independent contractor is not responsible for the latter's negligent acts. Majestic Realty Associates, Inc. v. Toti Contracting Co., 30 N.J. 425, 431 (1959); Prosser & Keeton, Torts (5th ed. 1984) Section 71 at 509. Exceptions to the rule are recognized where one retains control over the manner and means by which the work is to be performed, where the work constitutes a nuisance per se or where one knowingly engages an incompetent contractor. Majestic Realty Associates v. Toti Contracting Co., supra at 431; Terranella v. Union Bldg. & Construction Co., 3 N.J. 443, 446-447

(1950); Izhaky v. Jamesway Corp., 195 N.J. Super. 103 (App.Div.1984).

In this case, plaintiff does not claim that the property owners retained any control over the manner and means by which their contractor was to do the work or that they in any way intruded upon or affected his performance. Nor is it claimed that the work was a nuisance or inherently dangerous. Instead plaintiff argues that respondents should be liable because they hired an incompetent contractor and in particular, a financially unstable one. We find these arguments unpersuasive as a matter of fact and of law.

It is not enough that plaintiff proved that Aschoff performed this job incompetently or even that his proofs may have raised a factual question regarding Aschoff's incompetence. See e.g. Matanuska Electric Association, Inc. v. Johnson, 386 P. 2d 698, 701 (Alaska 1963). The fact that a contractor is negligent or incompetent in the manner in which he performs a particular job does not mean that he is incompetent generally. More to the point, Aschoff's poor performance was only known by these landowners in retrospect. The proofs presented regarding Aschoff's experience and reputation did not impute any knowledge to the property owners, actual or constructive, that Aschoff lacked the skill to perform competently. Thus, despite plaintiff's claims to the contrary, nothing was known by these property owners which would, in the exercise of due care, have caused them to conclude or have alerted them that the contractor they were hiring was incompetent. Compare cases collected in Annot., "Negligence in Hiring Independent Contractor," 78 A.L.R. 3d 910 (1977).

Although as appellant correctly points out, respondent's status as landowners imposed upon them a non-delegable duty to use reasonable care to protect invitees against known or reasonably ...


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