Before Judges Havey, Skillman and P.g. Levy.
The opinion of the court was delivered by: Havey, P.j.a.d.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from Superior Court of New Jersey, Law Division, Middlesex County.
In this personal injury action, plaintiffs appeal from a summary judgment dismissing their complaint against defendants Edward Reddy, Mark Douglas and Jack Duarte. *fn1 In dismissing the complaint, the motion Judge concluded that Celotex, defendants' employer and the owner of a building from which plaintiff fell, did not breach its duty to provide plaintiff with a reasonably safe place to work because the injury was a risk incidental to the work plaintiff was hired to perform. We affirm.
The pertinent facts are undisputed. Celotex hired defendant Chris Anderson Roofing Company (Chris Anderson) to replace sections of the roof on building thirteen at Celotex's Perth Amboy plant. Chris Anderson subcontracted part of the work to plaintiff's employer, Augy's Construction (Augy's).
Celotex had decided to replace the roof because it was old and a large section had collapsed under the heavy snowfall the previous winter. Afterwards, portions of the collapsed section were patched with sheet metal by defendant Jack Duarte, a Celotex employee.
The Celotex/Chris Anderson contract called for the replacement of certain other sections of the roof. Defendant Edward Reddy, Celotex's plant engineer, testified at his deposition that all of the roofing companies bidding on the job met with him and physically inspected the roof. He pointed out to the contractors the sections that had collapsed in the snowstorm, and advised them that the roof was made of transite. Defendant Frank Gibson, field superintendent of Chris Anderson, testified that he observed the transite sheeting and Reddy pointed out the place where the roof had collapsed and had previously been repaired with metal sheeting. Gibson and Reddy discussed the integrity of the roof, and that transite could not be walked on safely.
Chris Anderson retained Augy's to install galvanized steel sheeting to replace the transite. Gibson met with Guy Maltais, owner of Augy's and plaintiff's father-in-law. Gibson and Maltais discussed the integrity of the roof and the general fact that transite is not stable or capable of sustaining weight. In his deposition Maltais also confirmed that he met with Reddy and physically inspected the roof before entering into the contract with Chris Anderson. Maltais testified that the industry recognized that a roof made out of transite should not be walked on. He so advised plaintiff and other Augy's employees.
On his first day on the job, plaintiff and a co-worker climbed onto the roof to remove a sheet of metal left behind by another subcontractor. While plaintiff attempted to lift the sheet, a section of the roof he was standing on collapsed beneath him. Plaintiff believed that he accidentally stepped off a truss that was supporting him and onto the transite roof. The section of the roof where plaintiff fell was not part of the contract between Chris Anderson and Celotex, and was not scheduled to be replaced.
Plaintiffs filed a personal injury action against Chris Anderson, Frank Gibson and Celotex employees, Edward Reddy, Jack Duarte and Mark Douglas. Plaintiffs settled with Chris Anderson and Gibson for $500,000, and with Augy's for $250,000. They made no direct claim against Celotex, because the corporation was in bankruptcy. Plaintiffs filed a proof of claim in the bankruptcy proceedings.
In granting summary judgment in favor of Reddy, Duarte and Douglas, the Judge defined the duty of care owed by a landowner to employees of an independent contractor injured on the landowner's property. The Judge determined that plaintiff's injury was a risk incidental to the task he was hired to perform, and therefore the Celotex defendants were not liable for his injuries.
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., 278 N.J. Super. 129, 140 (App. Div. 1994), aff'd, 143 N.J. 141 (1996). This general rule operates to protect individuals performing work on the premises on the landowner, most commonly independent contractors and their employees. See Accardi v. Enviro-Pak Sys. Co., 317 N.J. Super. 457 (App. Div. 1999) and cases cited therein.
However, "the landowner '[i]s under no duty to protect an employee of an independent contractor from the very hazard created by doing the contract work.'" Dawson v. Bunker Hill Plaza Assocs., 289 N.J. Super. 309, 318 (App. Div.), certif. denied, 146 N.J. 569 (1996) (quoting Sanna v. National Sponge Co., 209 N.J. Super. 60, 67 (App. Div. 1986)). "An independent contractor is one 'who, in carrying on an independent business, contracts to do a piece of work according to his own methods without being subject to the control of the employer as to the means by which the result is to be accomplished but only as to the result of the work.'" Accardi, supra, 317 N.J. Super. at 463 (quoting Bahrle v. Exxon Corp., 145 N.J. 144, 157 (1996)). This exception is carved out of the landowner's general duty to protect invitees because "the landowner may assume that the independent contractor and [its] employees are ...