October 9, 2007
DAVID LATEMPA AND ANASTASIA LATEMPA, PLAINTIFFS-APPELLANTS,
SUMSKI & ASSOCIATES AND SUNITA AHLAWAT, DEFENDANTS-RESPONDENTS,
AND BOROUGH OF SAYREVILLE, DEFENDANT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, L-2981-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: September 19, 2007
Before Judges Axelrad and Payne.
Plaintiffs*fn1 David and Anastasia LaTempa appeal from summary judgment dismissal of their complaint against defendants Sunita Ahlawat and Sumski & Associates for personal injuries incurred by plaintiff. The claim arose out of a fall sustained by plaintiff while taking a walk late one evening from his sidewalk onto the property owned by Ahlawat, his next door neighbor. Remembering there was no sidewalk, he stepped off the curb and tripped on a wooden board in the street parallel to the curb of Ahlawat's property, and fell to the pavement. The board permitted access by cars and trucks to the site, where a house was being constructed. Plaintiffs' theory of liability appeared to be that the homeowner was acting as a general contractor in building her house, as was her brother-in-law Stanley Sumski, the principal of Sumski & Associates, who was assisting her in supervising the project. Plaintiffs claimed a jury could find one or both of them were negligent for placing the board in front of the property, for allowing it to be used by their subcontractors, and for not removing the board and allowing a dangerous condition to exist. Noting specifically there was no evidence that either defendant had placed the board there, Judge Pullen granted summary judgment to Ahlawat, finding no grounds for liability on the part of a homeowner for negligence of a subcontractor, and to Sumski & Associates, finding in the absence of a contract the evidence was inadequate to support the claim that he acted as a general contractor for Ahlawat.
On appeal, plaintiffs contend there is a genuine issue of material fact as to which defendant was in control of the premises that precludes the issuance of summary judgment. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Plaintiffs further contend the evidence supports the finding that defendants acted as general contractors and because they were aware the subcontractors were using the board for access to the property, it was not a transient condition, and thus a jury could find either one or both liable under general negligence principles. We are not persuaded by these arguments and affirm.
Our review of the summary judgment order is limited to whether, reviewing the evidence in the light most favorable to the non-moving party, there was any issue of material fact, and whether the evidence is so one-sided that plaintiffs were entitled to prevail, as a matter of law. Ibid.; Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div. 1998).
Viewed most favorably for plaintiff, the motion record reveals the following. There was no definitive evidence concerning the origin of the board. It may have been utilized on-site during the construction of plaintiffs' home, and, according to Sumski, it then probably was moved over and pushed against Ahlawat's curb by one of her contractors for vehicle access to prevent damage to the curb. Both defendants denied placing it there. They knew, however, it was present for a considerable period of time and was being used by the contractors, and defendants used it themselves, for entry onto the property.
Ahlawat was a college professor who decided to build a home on the lot with input and referrals from her brother-in-law, who was in the building business. She did state during depositions that she "[took] pride in saying [she] built [her] home" and she was "in charge"; however, she was not in the business of contracting and had no experience building homes. Nor was Ahlawat contractually obligated to oversee or supervise the work performed by any of the contractors or their subcontractors and did not provide any such oversight or supervision or participate in the construction. There was ample basis in the record for the trial court's conclusion that Ahlawat hired and dealt with the contractors and visited the site merely as a homeowner who assumed administrative control over the home construction project, and that plaintiffs made "[n]o showing, prima [facie] or otherwise, . . . establish[ing] her as a general contractor." Analogizing the situation to Slack v. Whalen, 327 N.J. Super. 186, 188 (App. Div. 2000), in which we held that property owners who are not experienced contractors and who merely assume administrative control over a home construction project do not owe a duty of care to assure the safety of an employee of one of the contractors, certif. denied, 163 N.J. 398 (2000), the trial judge properly concluded there was no basis upon which to impose a duty on Ahlawat to plaintiff, so she could not be held vicariously liable for his fall on the board. See also Raimo v. Fischer, 372 N.J. Super. 448, 456, 459 (App. Div. 2004) (a contractor's duty of reasonable care under general negligence principles extends beyond claims by subcontractors' employees to any persons a contractor may reasonably expect to come onto a construction site; homeowners are not vicariously liable simply as owners of property for alleged negligence of subcontractor).
Even though Sumski was in the building business, the proofs are also insufficient to establish him as a general contractor for the project. He had no contractual arrangement with his sister-in-law to supervise the project or with any of the contractors or subcontractors to oversee the performance of their work. Nor did plaintiffs present evidence that Ahlawat or any of the workers had an expectation that Sumski would oversee or be responsible for all aspects of the project or the maintenance of the site. Sumski voluntarily assisted Ahlawat in her home construction project because of their familiar relationship and his knowledge and connections in the industry -he gave her input and recommended some contractors, hired a few subcontractors, spoke with some tradespersons because he was more accessible and was more familiar with the terminology, paid a few of the subcontractor's invoices and was reimbursed by Ahlawat when she had the funds, and visited the site because it was convenient for him to stop by as he was building a house in the same subdivision. As the evidence is insufficient to establish that Sumski acted in the role of general contractor with oversight responsibilities for site safety including cleanup of debris, Sumski & Associates had no duty to plaintiff for which it could be held liable. Moreover, as the trial court noted, the fact that Sumski may have picked up and disposed of the board substantially after plaintiff's accident, when assisting Ahlawat in cleaning up her property, had no bearing on his status or on any duty owed at the time of the accident. Accordingly, summary judgment was appropriately granted dismissing plaintiffs' complaint against both defendants.