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Raimo v. Fischer

October 20, 2004


On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-222-03.

Before Judges Skillman, Parrillo and Grall.

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


Submitted September 14, 2004

The issue presented by this appeal is whether a contractor's duty of care for the safety of persons who come on a construction site is governed by the common law doctrine of premises liability, under which the tort liability of a possessor of land is determined by the injured person's classification as a business invitee, licensee or trespasser, or by general negligence principles, under which a party must exercise reasonable care for the safety of others regardless of their classification under the law of premises liability. We conclude that a contractor's tort liability is governed by general negligence principles, which require a contractor to exercise reasonable care to maintain a construction site in a safe condition for any persons the contractor may reasonably expect to come onto the site.

Defendants Robert and Darleen Fischer contracted with defendant Parker Construction, Inc. (Parker Construction) to build a house on property they own in Surf City. Parker Construction subcontracted with various other contractors to perform parts of the work. One of those subcontractors was defendant Nicholas Englebert and another was defendant Oceanside Builders and Remodellers, Inc. (Oceanside).

Plaintiff and his brother came to the construction site on the morning of May 5, 2001 to meet Richard Partington, an Oceanside employee. They called out to Partington but received no answer. After they heard hammering on an upper level of the house, they began to walk up a staircase located on the exterior. As they were ascending the staircase, they called out again for Partington, and someone responded that he was not there. When plaintiff and his brother began to walk down the staircase, it fell away from the house, causing plaintiff to suffer severe personal injuries.

Plaintiff subsequently brought this personal injury action against the Fischers, Parker Construction, Englebert and Oceanside as well as the principals of Parker Construction and Oceanside. Discovery disclosed that Englebert had attached the staircase, which was a temporary structure used to gain access to the upper levels of the house during construction. The top of the staircase was attached to the house with screws and nails, and the bottom was three to four feet away from the house.

Sometime during the week before plaintiff's accident, Oceanside removed the staircase so it could frame the part of the house against which the staircase had been placed. Before leaving the construction site at the end of the day on Friday, the principal of Parker Construction, Robert Parker, hid the staircase in the garage. However, when Englebert arrived the following morning, the staircase was again resting against the house. Englebert used the staircase six or seven times before plaintiff's accident but he never checked to see whether it had been reattached to the top of the house. All the witnesses who were deposed said they did not know who had placed the temporary staircase back against the house after it had been taken down. Robert Parker speculated that"kids in the neighborhood" could have put the staircase back to gain access to the house to drink alcohol inside.

After discovery was completed, defendants moved for summary judgment. The trial court granted the motions in a brief oral opinion which stated in pertinent part:

[T]he owner or occupier of the property owes a duty to a licensee to abstain from willfully injurious acts. And as I indicated earlier, there's not an issue here as to whether or not this was a willfully injurious act.... [A]lso, if the owner or occupier knows of a hazardous condition on the premises, then they have an obligation to give warning of it or to make the conditions reasonably safe for the purposes embraced by the passage on the property by the licensee.

When we use the concept of knowledge..., we also have a concept of imputed knowledge in that either actual knowledge or that the owner or occupant had a reason to know of the hazardous condition, in this case, the temporary staircase. And in that case, they would have the duty to exercise reasonable care to either make the condition safe or to give a warning........ I agree that... the issue is whether... any... knowledge... of the hazardous condition of the site could be imputed to any of these Defendants....... [B]ased upon what has been presented to me and viewed in a light most favorable to the Plaintiff, I don't think that... the hazardous condition of the staircase could be imputed to any of these Defendants.

Plaintiff appeals from the summary judgments in favor of the Fischers, Parker Construction, its principal Robert Parker and Englebert. Plaintiff does not appeal from the summary judgment in favor of Oceanside and its principal David Parker.

We conclude that the trial court erred in applying the common law doctrine of premises liability rather than general negligence principles in considering the motions for summary judgment filed by the general contractor, Parker Construction, and its subcontractor, Englebert. Applying general negligence principles, the summary judgment in favor of Englebert must be reversed. ...

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