On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-3593-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and Baxter.
Edna Bussie, the mother of Terron L. Bussie, commenced a wrongful death action against the owner and tenant of a commercial building where her son was dispatched by his employer to install a new roof. Plaintiff's son fell through a skylight on the roof and died two days later. Plaintiff appeals from two orders granting summary judgment to the owner and tenant. We affirm.*fn1
When this court reviews a summary judgment order, we are bound by the same standard as the motion judge. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). We must search the record to identify the undisputed facts and construe all other facts in the light most favorable to the non-moving party. R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Summary judgment will issue if the moving party is entitled to judgment as a matter of law based on the record. Brill, supra, 142 N.J. at 540. "An issue of fact is genuine if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." R. 4:46-2(c). The following consists of the undisputed facts of record together with all legitimate inferences from those facts drawn in the light most favorable to plaintiff, the non-moving party.
In response to complaints from defendant Interactive Printing and Packaging of New Jersey, Inc. (Interactive)*fn2 that the roof leaked, the owner of the premises, defendant The Bloom Organization (Bloom), retained A. Bussie Roofing (Bussie Roofing) to install a new roof. By mid-June 2001 Bussie Roofing had completed one-half of the work on the roof. Plaintiff's son was employed by Bussie Roofing and was one of the workers assigned to the project. Defendant Bloom had retained Bussie Roofing on numerous occasions over the years to perform roofing work on property owned by it.
On July 3, 2001, plaintiff's son's boot became stuck in hot tar on the roof. He struggled to free his boot. As he did so, he lost his balance and fell through a skylight on the roof approximately twenty feet onto a concrete floor. Plaintiff's son died two days later from injuries suffered in the fall. Plaintiff's son had commenced employment with Bussie Roofing no more than two weeks before his fall.
The roof on which plaintiff's son was working is a flat roof. Domed skylights are distributed throughout the roof. None of the skylights on the roof were equipped with a railing system or screens.
Arguing that it had engaged an independent contractor to perform the required work on the roof of its property and that the hazard posed by the skylight was open and obvious, Bloom moved for summary judgment. Interactive also filed a motion for summary judgment. It argued that the lease between it and Bloom assigned responsibility for maintenance to Bloom, the landlord.
Judge Fratto granted both motions. As to Bloom, he held that the accident arose in the course of plaintiff's son's employment and that neither state nor federal law imposed a duty to assure safe working conditions when the owner of the property employs an independent contractor. As to Interactive, the judge held that the lease assigned all maintenance and repair responsibility to the landlord and that it owed no duty of care to those employed by an independent contractor.
Generally, a landowner has a non-delegable duty to use reasonable care to protect invitees, such as craftsmen, against known and reasonably discoverable dangers on the premises. Dawson v. Bunker Hill Plaza Assocs., 289 N.J. Super. 309, 317-18 (App. Div.), certif. denied, 146 N.J. 569 (1996); Kane v. Hartz Mountain Indus., 278 N.J. Super. 129, 140 (App. Div. 1994), aff'd o.b., 143 N.J. 141 (1996). An exception to this rule is recognized, however, when the property owner engages a contractor to perform work on the premises and the worker is injured in the course of the very work that the contractor or its employee was hired to perform. Dawson, supra, 289 N.J. Super. at 317-18; Kane, supra, 278 N.J. Super. at 140.
In Dawson, three carpenters were injured while erecting prefabricated roof trusses on a building. Dawson, supra, 289 N.J. Super. at 315. When the trusses collapsed, the carpenters were thrown from the roof and seriously injured. Ibid. The carpenters sued the owner of the building. They alleged that the owner owed a duty to them to supervise the work. Id. at 317. In affirming summary judgment in favor of the property owner, we said:
Although Bunker Hill's status as landowner imposed upon it a non-delegable duty to use reasonable care to protect invitees against known or reasonably discoverable dangers, and although independent contractors and their employees are generally the beneficiaries of that duty, plaintiffs have not made a prima facie showing that Bunker Hill breached its duty. Plaintiffs were employed by I & B Builders to install the roof trusses. These trusses eventually collapsed due to inadequate bracing. The danger of trusses collapsing was a recognized risk incident to the erection of such roof trusses. Plaintiffs' own expert conceded this point. Plaintiffs, as experienced ...