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Slack v. Whalen

January 10, 2000

DENNI SLACK, PLAINTIFF-APPELLANT,
V.
THOMAS WHALEN AND MARGARET WHALEN, DEFENDANTS-RESPONDENTS,
AND
TRIDENT BUILDERS, INC., *FN1 DEFENDANT.



Before Judges Baime, *fn2 Brochin and Eichen.

The opinion of the court was delivered by: Eichen, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 8, 1999

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

No other parties participated in this appeal.

This is a construction site accident case. The case arose when plaintiff Denni Slack fell approximately ten feet while spackling sheetrock on the cathedral ceiling of a house defendants Thomas and Margaret Whelan were building. The appeal requires us to decide whether a property owner who assumes administrative control over a home construction project owes a duty to an employee of one of the individual contractors hired to complete the project to assure his safety by complying with regulations *fn3 promulgated under the Occupational Safety & Health Act, 29 U.S.C. § 651 to 678 (OSHA). Plaintiff contends that defendants owed a legal duty to assure him a safe worksite, and that the violation of OSHA regulations affords him a tort remedy. The motion judge disagreed and granted defendants' motion for summary judgment dismissing plaintiff's personal injury negligence action.

We conclude the judge properly granted defendants' summary judgment dismissing the complaint, see Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995), and affirm the summary judgment.

The pertinent facts are not complicated or contested. Defendants owned a small, undeveloped lot in Warren County and contracted with Trident Builders, Inc. (Trident) to act as their "general contractor" in building a house on the lot. Trident agreed to build the house for $80,000, which included labor and materials, but not landscaping or a septic system. When Trident failed to perform, defendants, who had no training or experience in home construction, took over the project. Using the plans prepared by an architect, they obtained the building permits and financing required for the construction; hired and paid the various contractors to build the house; and assumed the numerous administrative responsibilities required to coordinate the project.

On October 10, 1997, plaintiff arrived at the house to spackle the sheetrock that another Quality employee had just installed. He was part of a two-man spackling team. Plaintiff had been working for Quality for approximately one year before the accident. According to plaintiff's deposition testimony, he had been spackling for about an hour, using the ladders and scaffolding provided by Quality for the work, when he realized he could not reach the uppermost part of the cathedral ceiling. Consequently, he "climbed into the rafters" and, using a board that had been placed there by another Quality employee, *fn4 began to spackle the ceiling. After about forty-five minutes of working in the rafters, plaintiff heard the board beneath him break, and he fell approximately ten feet to the floor.

Although his "boss" was on the construction site from the beginning of the work day, plaintiff apparently did not ask him what to do when the scaffolding proved inadequate to reach the highest point of the cathedral ceiling. Defendants were not present at the time of the accident and did not learn of it until a few weeks later.

Defendants did not have a contractual arrangement with Quality or any other contractor requiring defendants to oversee either the performance of their work, or OSHA compliance, and defendants did not provide such oversight or in any way supervise the actual work of the individual contractors they hired. With the exception of Mr. Whalen, who did the plumbing work and installed the septic system at the house, defendants did not participate in the construction. In addition, defendants were not present at the construction site during the workday. At night, however, their son Patrick, who had no experience in home construction, *fn5 went to the house to inspect the daily progress of the work. Mrs. Whalen, and her fifteen year old son Vincent, also attended the site at night to "clean up" any debris left by the contractors.

As to the spackling work performed by plaintiff, defendants provided no equipment or assistance of any kind to plaintiff and, in fact, were not even present during the spackling of the ceiling. Indeed, they were completely unaware of the fact that Quality had placed a board in the rafters or that plaintiff was using it as a platform from which to spackle the ceiling.

Based on the foregoing facts and circumstances, as previously noted, the motion judge granted defendants summary judgment. The judge essentially concluded that defendants owed no duty to protect plaintiff from the risk of harm presented by his climbing into the rafters and using the board left there by another Quality employee to finish the spackling of the ceiling. The judge also impliedly concluded that even if such a duty existed, there were no facts in the record to support the claim that defendants had breached that duty.

Determining the scope of tort liability is the responsibility of the courts, and "[t]he actual imposition of a duty of care and the formulation of standards defining such a duty derive from considerations of public policy and fairness." Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439 (1993). In Hopkins, the Court reminded us that it "has carefully refrained from treating questions of duty in a conclusory fashion, recognizing that '[w]hether a duty exists is ultimately a question of fairness.'" Ibid. (citations omitted). ...


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