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Muhammad v. New Jersey Transit

May 14, 2003

ABDUSH SHAHID MUHAMMAD, PLAINTIFF-APPELLANT,
v.
NEW JERSEY TRANSIT, DEFENDANT AND THIRD PARTY PLAINTIFF-RESPONDENT,
v.
S & W CONTRACTING SERVICES, INC., THIRD-PARTY DEFENDANT.



On certification to the Superior Court, Appellate Division.

SYLLABUS BY THE COURT

The issue in this appeal is whether New Jersey Transit (NJT) acted in a palpably unreasonable manner by warning plaintiff's employer, an independent contractor, but not plaintiff, of the dangerous condition of a roof before plaintiff commenced asbestos removal work on that roof.

In 1995, NJT entered into a contract with S&W Contracting Services, Inc. (S&W), for the removal of asbestos from its Riverside garage, including 31,500 square feet of roofing material. There is no dispute that prior to entering into the contract, all contractors, including S&W, were specifically advised by the NJT supervising engineer and its principal contract specialist, that the roof in question was in very poor condition and that there were holes in the roofing. Stephen Henderson, founding member, majority shareholder, and president of S&W, was present at the site inspection.

On January 23, 1996, plaintiff, Abdush Shahid Muhammad, an experienced asbestos removal employee of S&W, fell through the roof and was rendered disabled by his injuries. On July 24, 1997, plaintiff filed a complaint to recover damages from NJT. Plaintiff claimed that NJT did not discharge its landowner duty to him by the warnings given to his employer and that NJT should have warned him directly of the dangers of the defective condition of the roof. Henderson testified in a deposition that, through him, plaintiff was made completely aware of the dangerous condition of the roof.

The trial court granted NJT's summary judgment motion and dismissed plaintiff's suit, reasoning that: (1) NJT had no duty to protect plaintiff, an employee of an independent contractor, from a hazard that was incidental to the very work the contractor was hired to perform; (2) NJT was not liable for any unreasonable or negligent inspection under N.J.S.A. 59:2-6; and (3) NJT's conduct with regard to any dangerous condition of its property was not palpably unreasonable under N.J.S.A. 59:4-2.

The Appellate Division agreed that NJT was a public entity and affirmed the grant of summary judgment, but only for the first reason expressed by the trial court.

The Supreme Court granted plaintiff's petition for certification.

HELD: As a public entity under the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 13-8, New Jersey Transit did not act in a palpably unreasonable manner when it warned plaintiff's employer, an independent contractor, but not plaintiff personally, of the dangerous condition of a roof before plaintiff began asbestos removal work on the roof.

1. Unlike private actors, public entities are subject to liability only within the terms of the TCA. In previous tort claim cases before this Court in which NJT has been a defendant, we, as well as the parties, have presumed NJT to be a public entity. Public entity is not limited to the State or one of its subdivisions; it includes such public authorities as the New Jersey Turnpike Authority, the New Jersey Highway Authority, and the New Jersey Sports and Exposition Authority, to name but a few, all of which can sue or be sued and all of which are covered by the TCA. We now remove any doubt and declare that NJT is a public entity within the ambit of the TCA. (Pp. 7-10)

2. The liability of a public entity for any injury caused by a dangerous condition on its property is circumscribed by N.J.S.A. 59:4-2. To succeed in his case, plaintiff must prove that: (1) the roof of the Riverside garage was in dangerous condition; (2) the dangerous condition created a foreseeable risk of, and actually caused injury to plaintiff; (3) NJT knew of the dangerous condition; and (4) the action taken by NJT to protect against the dangerous condition was palpably unreasonable. The only question in this case is whether, in light of the repeated warnings given to S&W, although not to plaintiff personally, NJT's actions were not palpably unreasonable. Plaintiff bears the burden of proving that NJT acted in a palpably unreasonable manner. (Pp. 10-13)

3. In hiring S&W, NJT relinquished control over the means and methods of asbestos removal. NJT relied on the expertise and experience of S&W and did not supervise or direct the project. NJT, through its representatives, thoroughly discussed the condition of the site with S&W at the pre-bid meeting, the site inspection, and the pre- project meeting. S&W knew of the condition of the Riverside garage and the perils and risks of removing asbestos from the roof. NJT satisfied its duty to inspect the premises and to identify any dangerous conditions. (Pp. 14-16)

4. It was not palpably unreasonable for NJT to expect that S&W would inform its employees of the dangers inherent to the project. Plaintiff, as S&W's employee, took direction from S&W management, received all materials and protective gear used on the project from S&W, was paid exclusively by S&W, and ultimately received a workers' compensation award through his employment with S&W. The duty to give warnings to its employees fell to S&W, the experienced independent contractor that had the requisite knowledge of the condition of the roof and had undertaken the means and methods for removal of the asbestos. It would be impractical, if not impossible, to require a public entity, which hires an independent contractor with tens or hundreds of employees, to warn each individual worker on the site. (Pp. 17-20)

The judgment of the Appellate Division is AFFIRMED.

CHIEF JUSTICE PORITZ and JUSTICES COLEMAN, LONG, VERNIERO, LaVECCHIA, and ZAZZALI join in Justice ALBIN's opinion.

The opinion of the court was delivered by: Albin, J.

Argued December 3, 2002

In this case, New Jersey Transit (NJT) hired S&W Contracting Services, Inc. (S&W) to remove asbestos from a roof and other portions of a garage that NJT owned and intended to demolish. It is uncontested that NJT advised S&W's president of the unstable and unsafe condition of the roof before his employees began working on the project. Plaintiff Abdush Shahid Muhammad, an S&W employee, suffered injuries when he fell through the roof while removing asbestos. Plaintiff claims that NJT did not discharge its landowner duty to him by the warnings given to his employer and that NJT should have warned him directly of the dangers of the defective condition of the roof. We hold that, as a public entity under the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 13-8, NJT did not act in a palpably unreasonable manner by warning plaintiff's employer of the dangerous condition.

I.

This matter comes before the Court on an appeal from a grant of summary judgment dismissing plaintiff's cause of action. Given that procedural posture, we will consider only those material facts over which there is no dispute and view the evidence in the light most favorable to plaintiff. R. ...


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