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Dawson v. Bunker Hill Plaza Associates

April 10, 1996

JOHN DAWSON AND JUDY DAWSON, LOREN HALTER AND ADELAIDE HALTER AND GRANVILLE WILLIAMS AND JOYCE WILLIAMS, PLAINTIFFS-APPELLANTS,
v.
BUNKER HILL PLAZA ASSOCIATES, SOUTHERN PINE INSPECTION BUREAU, BOWATER LUMBER CO. AND MANNA CRANE SERVICE, INC., DEFENDANTS-RESPONDENTS AND CROSS-RESPONDENTS, AND COHEN-SHATZ INVESTMENTS, LENOARD COHEN, KENNETH SHATZ, STEVEN A. NEIBERG, RAPS INVESTMENTS, WILLIAM P. BOWMAN, DENNIS POWELL, GLENDALE CAMPUS ASSOCIATES, GLENDALE BUILDERS, INC., U.S. COMPONENTS, INC., WEYERHAUSER, INC., GILMAN BUILDING PRODUCTS, MINARET DESIGN GROUP, VAL V. FAJARDO, MEHMET Y. ILTER AND BEMAX OF FLORIDA, INC., DEFENDANTS, AND HADDONFIELD LUMBER COMPANY, INC., DEFENDANT-RESPONDENT AND CROSS-APPELLANT.



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

Approved for Publication April 10, 1996. As Corrected June 3, 1996.

Before Judges Michels, Villanueva and Kimmelman. The opinion of the court was delivered by Michels, P.j.a.d.

The opinion of the court was delivered by: Michels

The opinion of the court was delivered by

MICHELS, P.J.A.D.

Plaintiffs John Dawson (Dawson) and Judy Dawson, Loren Halter (Halter) and Adelaide Halter, and Granville Williams (Williams) and Joyce Williams appeal from summary judgments of the Law Division entered in favor of defendants Bunker Hill Plaza Associates (Bunker Hill), Manna Crane Service, Inc. (Manna Crane) and Haddonfield Lumber Company, Inc. (Haddonfield Lumber) in this personal injury products liability tort action. Haddonfield Lumber cross-appeals from those portions of the summary judgments that dismissed its cross-claims against Bunker Hill, Manna Crane and defendants Bowater, Inc. and Southern Pine Inspection Bureau.

Plaintiffs Dawson, Halter and Williams were carpenters employed by I & B Builders and were injured while erecting and temporarily bracing prefabricated roof trusses on a building at the Bunker Hill Plaza Shopping Center in Washington Township, New Jersey. The trusses collapsed in a domino-like fashion, throwing the three plaintiffs to the concrete floor below. The trusses then fell on top of plaintiffs, causing serious personal injuries to each plaintiff. Expert opinion established that the trusses collapsed because they were inadequately braced.

Dawson, Halter and Williams instituted this action to recover damages for the personal injuries each sustained as a result of the accident, and their wives sued per quod. In addition to suing Bunker Hill, the partnership which owns the property; Manna Crane, the crane service on the construction project; and Haddonfield Lumber, a lumber supplier, plaintiffs also sued defendant Glendale Builders, Inc. (Glendale Builders), the general contractor; defendants Joseph Vento, Kenneth Shatz, Leonard Cohen, William P. Bowman and Dennis Powell, Glendale Builders stockholders; U.S. Components, Inc., the manufacturer or fabricator of the roof trusses; Minaret Design Group and Val Fajardo, the architects on the project; Mehmet Ilter and Bemax of Florida, Inc., the engineers that designed the trusses; Bowater Lumber Co. (Bowater); Weyerhauser, Inc. (Weyerhauser), suppliers of wood for the trusses; Gilman Building Products (Gilman), a supplier of wood products; and Southern Pine Inspection Bureau (Southern Pine), an agency that provided guidelines for grading and inspecting lumber.

After issue was joined and discovery completed, the trial court granted summary judgment in favor of Weyerhauser and Gilman. Thereafter, the trial court granted summary judgment in favor of Bunker Hill, Manna Crane, Bowater and Southern Pine. The matter then proceeded against Glendale Builders, U.S. Components, Minaret Design, Val Fajardo, Bemax of Florida and Mehmet Ilter. Plaintiffs settled with these defendants and then appealed the summary judgments in favor of Bunker Hill, Manna Crane, Haddonfield Lumber, Bowater and Southern Pine. Haddonfield Lumber cross-appealed the dismissal of its claims against the other defendants. While the appeal was pending, plaintiffs settled with Bowater and Southern Pine, continuing the appeal solely against Bunker Hill, Manna Crane and Haddonfield Lumber.

Plaintiffs seek a reversal of the summary judgments in favor of Bunker Hill, Manna Crane and Haddonfield Lumber, contending that: (1) questions of fact were presented based on the contractual dispute between Bunker Hill and Glendale Builders concerning general contracting services; (2) sufficient evidence of involvement in the construction on the part of Bunker Hill existed to create a fact issue for the jury; (3) expert evidence of OSHA violations and other violations of customary trade practices and applicable codes established liability on Bunker Hill's part; (4) a jury question existed concerning whether Manna Crane acted negligently and whether Manna Crane's negligence was a substantial factor in the collapse of the trusses; (5) a fact issue existed regarding whether Haddonfield Lumber is liable for selling defective component parts used by U.S. Components in the manufacture of the trusses; and (6) a prima facie case of negligence against Haddonfield Lumber was established based on their undertaking to determine the type and quantity of bracing material supplied.

We are satisfied from our study of the record and arguments presented that the trial court properly granted summary judgment in favor of Bunker Hill, Haddonfield Lumber and Manna Crane, and that no genuine issue of material fact existed which would preclude the grant of summary judgment in their favor whether the matter is viewed traditionally under Judson v. Peoples Bank & Trust Co., 17 N.J. 67, 110 A.2d 24 (1954), or under the standard recently announced in Brill v. Guardian Life Insurance Co. of America, 142 N.J. 520, 666 A.2d 146 (1995). Moreover, we are satisfied that all issues of law raised by plaintiffs are clearly without merit. R. 2:11-3(e)(1)(E). Further comment, however, with respect to some of plaintiffs' contentions is appropriate.

I.

SUMMARY JUDGMENT IN FAVOR OF BUNKER HILL.

Plaintiffs contend that Bunker Hill, as owner of the property, owed a duty to them to supervise the means and methods of construction and could not be excused from that duty based upon an unsigned contract between it and Glendale Builders. Plaintiffs also contend that Bunker Hill is liable because it violated OSHA regulations and other customary trade practices in the construction of the project. We disagree.

"As a general rule, a landowner has a non-delegable duty to use reasonable care to protect invitees against known or reasonably discoverable dangers." Kane v. Hartz Mountain Indus., Inc., 278 N.J. Super. 129, 140, 650 A.2d 808 (App. Div. 1994), aff'd, 143 N.J. 141, 669 A.2d 816 (1996); see also Cassano v. Aschoff, 226 N.J. Super. 110, 114, 543 A.2d 973 (App. Div.), certif. denied, 113 N.J. 371 (1988). However, an owner is not responsible for harm which occurs to an employee as a result of the very work which the employee was hired to perform. Kane, supra, 278 N.J. Super. at 140. Under this well recognized exception to the general rule, "the duty to provide a reasonably safe place to work is relative to the nature of the invited endeavor and does not entail the elimination of operational hazards which are obvious and visible to the invitee upon ordinary observation and which are part of or incidental to the very work the contractor was hired to perform. " Sanna v. Nat'l Sponge Co., 209 N.J. Super. 60, 67, 506 A.2d 1258 (App. Div. 1986) (citing Wolczak v. Nat'l Elec. Prods. Corp., 66 N.J. Super. 64, 75, 168 A.2d 412 (App. Div. 1961)). Stated differently, "the landowner is under no duty to protect an employee of an independent contractor from the very hazard created by doing the contract work." Ibid; see also Wolczak, supra, 66 N.J. Super. at 75. Further, "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. " Wolczak, supra, 66 N.J. Super. at 75; see also Sanna, supra, 209 N.J. Super. at 67; Cassano, supra, 226 N.J. Super. at 115. A ...


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