October 19, 2007
SAM MICKENS, PLAINTIFF-APPELLANT,
FRED SCOTT AND ETHEL SCOTT, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-1341-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 9, 2007
Before Judges Collester, C.S. Fisher and C.L. Miniman.
Plaintiff Sam Mickens, a handyman, commenced this action for damages against defendants Fred and Ethel Scott as a result of injuries he sustained from falling off the roof of their home. We agree with the trial judge that defendants owed no duty to warn of the risks inherent in plaintiff's attempts to inspect and make repairs to defendants' roof, and affirm the summary judgment entered in defendants' favor.
The relevant facts, viewed in a manner favorable to plaintiff, as the summary judgment standard requires, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), reveal that since 1981 defendants resided in a single family home in Vauxhall. Plaintiff met defendant Fred Scott*fn1 in the early 1970's when they frequented the same local tavern.
On May 27, 2004, plaintiff mowed defendants' lawn, following which Fred asked plaintiff whether he had any experience fixing leaky roofs. Plaintiff stated that he had, but that before he could attempt to fix the leak, he would first need to examine the roof. He asked Fred to supply a ladder, roofing cement and a trowel. According to plaintiff, he advised Fred that he would attempt to examine the roof the next day if he had the time, but, if not, he would arrive on Saturday, May 29, 2004.
Plaintiff arrived on Saturday, at approximately 9:45 a.m., and knocked, to no avail, on both the front and back doors. When he walked to the back of the house, he found a ladder already set up on the back deck, as well as a trowel and roofing cement.
Plaintiff climbed the ladder to the roof for the purpose of determining, in light of its pitch, where he could nail two metal brackets to the roof for the placing of a wooden plank --what was referred to in the record as a "chicken ladder." Plaintiff anticipated using this device in order to create a level place upon which he could stand as he repaired the leak. However, soon after plaintiff stepped off the ladder and onto the roof, he lost his footing when, in his words, he "hit a bad shingle." With nothing to grab hold of, plaintiff fell, breaking his leg.
Following the completion of discovery, defendants successfully moved for summary judgment. Plaintiff has appealed, arguing that the trial judge erred in finding, under the circumstances, that defendants owed plaintiff no duty of care and in concluding that defendants' alleged violation of standards adopted by the Occupational Safety and Health Administration (OSHA) had no application here. We reject plaintiff's contentions and affirm.
It has largely been the responsibility of the courts to define the scope of tort liability. Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439 (1993). "The actual imposition of a duty of care and the formulation of standards defining such a duty derive from considerations of public policy and fairness." Ibid. See also Alloway v. Bradlees, Inc., 157 N.J. 221, 230 (1999); Weinberg v. Dinger, 106 N.J. 469, 485 (1987); Kelly v. Gwinnell, 96 N.J. 538, 552 (1984); Goldberg v. Housing Auth., 38 N.J. 578, 583 (1962). Accordingly, "[w]hether a person owes a duty of reasonable care toward another turns on whether the imposition of such a duty satisfies an abiding sense of basic fairness under all the circumstances in light of considerations of public policy." Hopkins, supra, 132 N.J. at 439. This inquiry involves identifying, weighing, and balancing several factors -- the relationship of the parties, the nature of the attendant risk, the opportunity and ability to exercise care, and the public interest in the proposed solution. The analysis is both very fact-specific and principled; it must lead to solutions that properly and fairly resolve the specific case and generate intelligible and sensible rules to govern future conduct. [Ibid. (citations omitted).]
It has been held that, as a general matter, landowners who invite independent contractors to come upon their premises are "under a duty to exercise ordinary care to render reasonably safe the areas in which [the contractor] might reasonably expect" to be working. Sanna v. National Sponge Co., 209 N.J. Super. 60, 66 (App. Div. 1986). This general duty is non-delegable; it requires that landowners make "reasonable inspection" to discover defective and hazardous conditions, and imposes the obligation to either make the condition of the premises reasonably safe or give adequate warning. Ibid. See also Zentz v. Toop, 92 N.J. Super. 105, 113 (App. Div.), aff'd o.b., 50 N.J. 250 (1966).
These obligations, however, are qualified, are "relative to the nature of the invited endeavor," Sanna, supra, 209 N.J. Super. at 67, and do not encompass a duty to eliminate obvious and visible operational hazards, which are part of or incidental to the very work the contractor was hired to perform, Muhammad v. N.J. Transit, 176 N.J. 185, 198 (2003). See also Gibilterra v. Rosemawr Homes, 19 N.J. 166, 170 (1955); Wolczak v. Nat'l Elec. Prod. Corp., 66 N.J. Super. 64, 75 (App. Div. 1961).
In considering the extent to which a landowner bears responsibility for the personal injuries of a contractor or its employees in their performance of the work for which they were hired, a court must also consider whether the landowner has exercised control over the job location or has directed the manner in which the delegated tasks are carried out. Absent a sufficient degree of control or supervision, a landowner will not be liable for injuries "resulting from either the condition to the premises or the manner in which the work is performed." Muhammad, supra, 176 N.J. at 198-99 (quoting Wolczak, supra, 64 N.J. Super. at 71). It has also been held that this freedom from liability is not disturbed by the landowner's exercise of general superintendence as is necessary to ensure that the contractor performs the agreed work, Muhammad, supra, 176 N.J. at 199, because the landowner is entitled, without concern for the imposition of liability, to hire an experienced worker either to correct the very danger present or to perform his tasks amidst the visible hazards. The landowner may assume that the worker, or his superiors, are possessed of sufficient skill to recognize the degree of danger involved and to adjust their methods of work accordingly. Thus the unimpaired line of holdings to the effect that the duty to provide a reasonably safe working place for employees of an independent contractor does not relate to known hazards which are part of or incidental to the very work the contractor was hired to perform. [Wolczak, supra, 66 N.J. Super. at 75 (quoted with approval in Muhammad, supra, 176 N.J. at 199); see also Accardi v. Enviro-Pak Sys. Co., Inc., 317 N.J. Super. 457, 463 (App. Div.), certif. denied, 158 N.J. 685 (1999); Dawson v. Bunker Hill Plaza Assocs., 289 N.J. Super. 309, 318 (App. Div.), certif. denied, 146 N.J. 569 (1996); Sanna, supra, 209 N.J. Super. at 67.]
Here, the undisputed facts reveal that: plaintiff represented he was capable of examining the roof and repairing the leak; the "bad shingle," which caused plaintiff to lose his balance, was not something defendants could have discovered through a reasonable inspection of the premises; and plaintiff's encounter with the "bad shingle" was a hazard incidental to the work for which he was hired. See Rigatti v. Reddy, 318 N.J. Super. 537, 542-43 (App. Div. 1999). In addition, the undisputed facts disclose that defendants exercised no supervision or control over the manner in which plaintiff performed the work. That defendants provided a ladder, trowel and roofing cement does not suggest they intended or did in fact provide any supervision or control over the manner in which plaintiff intended to inspect and repair the roof. Those items played no role in the circumstances that caused plaintiff's fall and were provided solely for plaintiff's convenience in performing the work for which he was hired in the manner in which he saw fit depending upon the circumstances he encountered once on the roof. In short, defendants neither participated in nor interfered with the means and method by which plaintiff attempted to examine and repair the roof. Indeed, defendants were not even present at the time, as plaintiff was aware when he received no response to his knocks on both the front and back doors of defendants' home that morning. Accord Slack v. Whalen, 327 N.J. Super. 186, 194 (App. Div.), certif. denied, 163 N.J. 398 (2000).
Plaintiff also argues that the trial judge erred in disregarding his expert's report, which asserted that defendants failed to comply with OSHA regulations. These federal regulations, however, apply only to persons "engaged in a business affecting commerce who has employees," 29 U.S.C.A. § 652(5). Since there is nothing in the record to suggest that defendants were engaged in such a business, there is no merit to plaintiff's contention that OSHA regulations supplied the duty of care. Moreover, we reject the argument that OSHA regulations should inform the duty of care imposed by the common law of this State. In Slack, we declined to give weight to OSHA regulations even when, unlike here, homeowners assumed administrative control over their home construction project. Slack, supra, 327 N.J. Super. at 195-96. We adhere to this approach and decline to adopt a rule of law that imposes an obligation upon every homeowner in this State to become familiar or comply with OSHA's regulations each time a contractor or handyman is hired to make repairs or perform work. Such a rule would be inconsistent with the "abiding sense of basic fairness" that underlies the adoption of any rule of liability. Hopkins, supra, 132 N.J. at 439.
For these reasons, we conclude that the trial judge correctly applied the principles of law we have outlined in determining that defendants owed no duty of care relating to the manner in which plaintiff was injured. Accordingly, the trial judge properly entered summary judgment in defendants' favor.