May 16, 2007
EDNA BUSSIE, ADMINISTRATRIX AND ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF TERRON L. BUSSIE, DECEASED, PLAINTIFF-APPELLANT/CROSS-RESPONDENT,
THE BLOOM ORGANIZATION, DEFENDANT-RESPONDENT/ CROSS-APPELLANT, AND INTERNATIONAL PRINTING AND PACKAGING OF NEW JERSEY, INC., DEFENDANT-RESPONDENT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: April 25, 2007
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 carpenters hired to perform the very work that gave rise to their injuries, knew or should have known that the risk of collapse necessitated temporary bracing for the trusses.
Bunker Hill, as landowner, plainly did not owe a duty to plaintiffs, as employees of an independent contractor, to prevent injury from a risk which was incident to the very task they were hired to perform, and therefore is not liable to plaintiffs for the injuries they sustained in this accident. [Id. at 319.]
We also noted that the property owner was entitled "to rely upon and assume that [the general contractor and its sub-contractor] had sufficient skills" to do the work that they had been engaged to do. Ibid.
That is precisely the situation presented by this case. Bloom engaged a contractor that it had used on many occasions over the years to install a new roof. It was entitled to rely on the skill of this contractor. Similarly, the dangers inherent in a flat roof or any roof for that matter, including the risk of a fall, and the risks associated with a roof studded with skylights are inherent in the job of a roofer. Notably, the skylights on this roof were not flush with the roof. To the contrary, each is domed and clearly visible to anyone on this roof.
Indeed, it is the visibility of the risk or danger posed by the skylights on the roof of the Bloom building that distinguishes this case from Zentz v. Toop, 92 N.J. Super. 105 (App. Div. 1966), aff'd, 50 N.J. 250 (1967). There, plaintiff fell from a roof of a building in a shopping center when he tripped over a wire on the roof. Id. at 108. The plaintiff was an employee of a contractor hired by the property owner to repair the roof. Ibid. The wire that caused the plaintiff's fall was used to stabilize air-conditioning units on the roof. Ibid. We held that the issue of the property owner's negligence was properly submitted to the jury because there was no evidence that the plaintiff had observed the wire or had knowledge of the wire. Id. at 115. Moreover, there was evidence that the wire was the same color as the roof material and there was no evidence that anything had been done to enhance the visibility of the wire. Id. at 114.
By contrast, in this case, the danger posed by the skylights was open and obvious. Skylights studded the roof and they were not flush with the roof. Under these circumstances, there is no basis for liability of the property owner.
As to the tenant, Interactive, plaintiff was required to establish first that it owed a duty of care to her son. Ivins v. Town Tavern, 335 N.J. Super. 188, 194 (App. Div. 2000). In the context of a tenant of a commercial premises, we look to the relationship between the landlord and tenant, particularly the lease, to determine the obligation or absence of obligation for repairs and maintenance of the premises. Geringer v. Hartz Mountain Dev. Corp., 388 N.J. Super. 392, 400-02 (App. Div. 2006), certif. denied, ___ N.J. ___ (2007). Absent the assignment to it of responsibility to repair or maintain the premises, the landlord owes a duty of reasonable care with respect to portions that remain in the landlord's control. Michaels v. Brookchester, Inc., 26 N.J. 379, 382 (1958) (citing Dubonowski v. Howard Sav. Inst., 124 N.J.L. 368 (E. & A. 1940)). When the landlord assumes maintenance and repair obligations for a building, a commercial tenant owes no duty of care to those called to the premises to repair the building, unless the tenant has created a condition that is not open and obvious to those who come on the premises. Siddons v. Cook, 382 N.J. Super. 1, 9 (App. Div. 2005) (citing Snyder v. I. Jay Realty Co., 30 N.J. 303, 316-17 (1959)).
Here, the lease between defendant Bloom and defendant Interactive imposes repair and maintenance responsibility on the landlord, Bloom. Moreover, the work to be performed on the premises was on the roof, an area of the building that remained under the control of Bloom. Under these circumstances, the motion judge properly granted summary judgment in favor of Interactive.