June 26, 2008
ABRAHAM MEDINA AND DULCE MEDINA, HIS WIFE, PER QUOD, PLAINTIFFS-APPELLANTS,
BRW LIMITED HOLDINGS, L.L.C., ERAN WAJSWOL, PHIL BUZZERIO, QUIL MANAGEMENT, T.C. DUNHAM PAINT & COATINGS, INC. AND HUDSON FLOOR SUPPLY, DEFENDANTS-RESPONDENTS, AND INDIAN HARBOR INSURANCE COMPANY, AS SUBROGEE OF BRW LIMITED LTD. AND QUIL MANAGEMENT, PLAINTIFFS,
WASHINGTON FLOOR COVERING AND ABRAHAM MEDINA, INDIVIDUALLY, DEFENDANTS.
On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Hudson County, Docket No. L-1436-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: March 31, 2008
Before Judges C.S. Fisher and C.L. Miniman.
Plaintiffs Abraham and Dulce Medina appeal from an order for summary judgment dismissing their personal injury and per quod claims against BRW Limited Ltd. (BRW),*fn1 Eran Wajswol, Phil Buzzerio and Quil Management (Quil).*fn2 Because the principle that the owner of property is under a duty to provide a reasonably safe place in which independent contractors perform services for the owner, Accardi v. Enviro-Pak Systems Co., 317 N.J. Super. 457, 462 (App. Div. 1999), certif. denied, 158 N.J. 685 (1999), was not followed, we reverse and remand for trial on the merits.
The facts most favorable to plaintiffs, and the reasonable inferences that may be drawn from them, Brill v. Guardian Life Insurance Co. of America, 142 N.J. 520, 523 (1995), establish that BRW and Quil were formed and operated by Buzzerio and Wasjowl; BRW held title to two pieces of real estate at 803-805 Washington Street, Hoboken, and Quil*fn3 managed BRW's rental properties and almost one hundred condominium properties for various associations.*fn4 BRW had no employees and both Buzzerio and Wajswol worked for Quil, as did five other employees, including maintenance workers and office staff.
Abraham, who had been doing business as Washington Floor Covering for at least twelve years at the time of the accident, had an established relationship with defendants. Abraham would perform floor refinishing and other services for defendants from time to time in the properties they owned in Hoboken and managed for others.
When Abraham first began to work for defendants, he was not refinishing floors for them but rather laying carpet and linoleum. However, Buzzerio wanted Abraham to take over floor refinishing and they discussed the requirements of the job. Abraham explained to Buzzerio that before he began any refinishing work for BRW, Buzzerio had to have the gas service to the unit or the building turned off. Buzzerio replied that they would have their men take care of that requirement. Buzzerio did not dispute this conversation. David Killion, who was employed by Quil and supervised by Buzzerio, was primarily responsible for preparing rental units for new tenants. Thereafter, each time that Abraham was asked to refinish wood flooring, Killion would take care of having the gas to the unit turned off. Abraham would bill BRW and the bill generally was paid by Quil with a BRW check.
Generally, when working on wood floors, Abraham would supply all of the equipment, stain and lacquer. The rental unit would have to be vacant for seventy-two hours to do the work and allow the floors to dry. If the unit was occupied, the owner would have to remove everything on the floors to be refinished. The owner was always responsible for moving the furniture and turning off the gas. When Abraham arrived at a job, he would confirm with the owner that the gas was off. If the owner did not know how to do so, Abraham would instruct them to contact PSE&G or a plumber. Abraham himself did not know how to turn off the gas. Almost every time he did a job, Abraham would check to make sure the gas was off by turning on the stove and checking the hot water heater. He did this because he knew he was working with flammable material.
In June 2004 Quil contacted Abraham and arranged to have Abraham refinish the wood floors in Apartment 3 on the second floor of 803 Washington Street, a multi-unit apartment building. Abraham had worked in that building several times installing linoleum or carpet and refinishing wood floors. Apartment 3 had a living room, bedroom, bathroom, kitchen and an entry hall. Abraham was to refinish the wood floors in the entry hall, living room and bedroom in preparation for a new tenant.
Abraham picked up the key from Quil and went to the apartment to inspect it. He discovered that there was a lot of piled-up furniture on the floors that he was to refinish and he could not do the work. At about this time Killion had a hernia operation and was recuperating at home. Abraham called Quil and spoke to the secretary, Tracey Pfledging, who said that she would let someone know about the problem. Abraham returned to the apartment on June 22 or 23, 2004, and saw that all of the furniture had not been removed. This was several days to a week after Killion's surgery. Abraham called Quil again and was told that it was going to send people there to take care of the gas line and the furniture, and get everything out of the way. Abraham testified that Killion had always taken care of the gas and it was Abraham's practice, if he was not with Killion when he turned off the gas, to check to make sure it was off.
Abraham returned to the apartment a third time on June 23, 2004, between 3:30 and 4:00 p.m. Before he did so, he had been told that the furniture was out of the way and the gas was off and Quil was urging him to get the job done that day. Abraham found all of the furniture in the kitchen in front of the stove and hot water heater.*fn5 One of the kitchen windows was open and Abraham, after moving some chairs and possibly a small refrigerator, opened the other window. He then opened all three windows in the living room and the one in the bedroom. Abraham did not check to confirm that the gas was off because he had just been told that everything was ready. Also, the furniture was blocking the stove and hot water heater and Abraham would have had to move some or all of it out of the kitchen in order to check the gas.
Abraham began work by sanding the floors and then he applied a quick-dry lacquer sealer made by Danhams Company, which he had purchased from Pino & Son in Union City. He sealed the bedroom and living room and was in the process of sealing the entry hall at about 7:50 p.m. when the hot water heater turned on and the lacquer fumes exploded. Abraham suffered third-degree burns on his face and upper body resulting in cellulitis of his face and the loss of dexterity in one hand.
This action was instituted thereafter and, when discovery was complete, BRW, Buzzerio and Wajswol sought a summary judgment as a matter of law on the grounds that a landowner is not liable for the negligence of independent contractors, i.e., Quil, and members of a limited liability company have no individual liability for the debts of the company. Over plaintiffs' opposition, the judge concluded that there was no basis for imposing liability on Buzzerio and Wajswol because their corporation, not they, owned the real estate. She also found that BRW was "not liable for the negligence of the independent contractor, Mr. Medina[,]*fn6 as a matter of law." She continued:
There are limited circumstances under which a commercial landowner may be held and found liable. And . . . those exceptions include retaining control, . . . for example, going there, being on site, supervising how the work is done, controlling the manner in which it's done and there is no evidence here that BRW or the individuals did that. Negligent engaging of an incompetent contractor. That's not alleged by the plaintiff in opposition to this case. And that the contract is for performance of an inherently dangerous activity.
So the landlord is not liable for the negligence of an independent contractor unless those exceptions exist and in this case the court does not find evidence that those exceptions exist.
After the judge granted summary judgment to BRW, Buzzerio and Wajswol, plaintiffs filed a motion for reconsideration, which was denied. Thereafter, a proof hearing was conducted on July 11, 2007, before the same judge and plaintiffs recovered a default judgment against Quil, presumably based on its negligence in failing to turn off the gas.*fn7
Plaintiffs argue that (1) a material fact was in dispute requiring a jury trial, (2) the landowner was liable as a matter of law, (3) the question before the court was a mixed question of law and fact and inappropriate for summary judgment and (4) public policy demands that landowners retain liability for their premises despite the presence of an independent contractor or use of a management company.
In reviewing the grant or denial of a summary judgment, we apply the same standard applied by the motion judge to resolve the issues, without affording any special deference to the judge's interpretation of the law. Balsamides v. Protameen Chems., Inc., 160 N.J. 352, 372 (1999); Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). We review the decision of the motion judge based solely on the evidential materials submitted on the motion. Bilotti v. Accurate Forming Corp., 39 N.J. 184, 188 (1963); Scott v. Salerno, 297 N.J. Super. 437, 447 (App. Div.), certif. denied, 149 N.J. 409 (1997).
Summary judgment must be granted "if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law."
R. 4:46-2(c). We must decide whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party. . . . If there exists a single unavoidable resolution of the alleged disputed issue of fact, that issue should be considered insufficient to constitute a "genuine" issue of material fact for purposes of Rule 4:46-2. [Brill, supra, 142 N.J. at 540 (citations omitted).]
We must ascertain "what reasonable conclusions a rational jury can draw from the evidence." Id. at 535. To make that determination, we "must accept as true all evidence [that] supports the position of the party defending against the motion and accord [that party] the benefit of all legitimate inferences [that] can be deduced therefrom." Ibid. (quotations omitted). Thus, "the essence of the inquiry [is] 'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Id. at 536 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 2512, 91 L.Ed. 2d 202, 214 (1986)). If reasonable minds could differ, the motion must be denied. Ibid.
We begin with undisputed facts: Abraham told Buzzerio that before he could do any floor refinishing work for BRW, it had to turn off the gas in the apartment or building; Buzzerio agreed that would be done. Quil performed management services for BRW, it was owned by the owners of BRW and it was managed by them. That brings us to the disputed facts: Abraham reminded at least one employee of Quil while Killion was recuperating from hernia surgery that, before he began refinishing the wood floors in Apartment 3, the gas had to be turned off; he was later assured that this had been done. Abraham did not personally double-check the pilots on the stove and water heater because Quil had blocked his access to them by putting all of the furniture into the small kitchen.
Generally, "a landowner has a non-delegable duty*fn8 to use reasonable care to protect invitees against known or reasonably discoverable dangers." Dawson v. Bunker Hill Plaza Assoc., 289 N.J. Super. 309, 317 (App. Div.) (quoting Kane v. Hartz Mountain Indus., 278 N.J. Super. 129, 140 (App. Div. 1994), aff'd, 143 N.J. 141 (1996)), certif. denied, 146 N.J. 569 (1996). This duty is well established, Morris v. Krauszer's Food Stores, Inc., 300 N.J. Super. 529, 534-35 (App. Div.), certif. denied, 151 N.J. 77 (1997), and applies to all invitees, including independent contractors. Accardi, supra, 317 N.J. Super. at 462 ("Clearly, this general rule operates to protect individuals performing work on the premises of the landowner, most commonly independent contractors and their employees.") (citing Cassano v. Aschoff, 226 N.J. Super. 110, 115 (App. Div.), certif. denied, 113 N.J. 371 (1988)); Piro v. Public Serv. Elec. & Gas Co., 103 N.J. Super. 456, 463 (App. Div.), aff'd, 53 N.J. 7 (1968).
Despite the breadth of this general rule, a landowner is not responsible for harm to the employee of an independent contractor as a result of the very work the contractor was hired to perform. Dawson, supra, 289 N.J. Super. at 318.
The duty to provide a reasonably safe place to work is relative to the nature of the invited endeavor and does not entail the elimination of operational hazards which are obvious and visible to the invitee upon ordinary observation and which are part of or incidental to the very work the contractor was hired to perform. [Sanna v. Nat'l Sponge Co., 209 N.J. Super. 60, 67 (App. Div. 1986) (citing Wolczak v. Nat'l Elec. Prods. Corp., 66 N.J. Super. 64, 75 (App. Div. 1961)).]
Breach of the general duty of a landowner has been found on multiple occasions. For example, in Piro, supra, 103 N.J. Super. at 459-60, the defendant provided plaintiff's employer with a workplace and a very large saw and saw table, which caused plaintiff's injuries. The saw did not have safety guards in place and the work area was not barricaded to protect workers from flying wood. Id. at 460-61. We affirmed the jury verdict in favor of plaintiff on the ground that defendant had breached its duty to make the premises reasonably safe for the work. Id. at 463.
In Moore v. Schering Plough, Inc., 328 N.J. Super. 300, 302 (App. Div. 2000), we considered whether defendant had a duty to an employee of its security service to remove snow and ice from walkways and ramps to walkways. The motion judge had ruled that "'a security guard has to take the risk of weather' and that slipping on snow or ice was a 'risk of employment.'" Id. at 306. Yet, the plaintiff "had nothing to do with snow removal on the walkways." Id. at 307. As a result, we concluded that defendant owed plaintiff, a business invitee, a duty of reasonable care that included removal of snow and ice. Ibid.
In Craggan v. IKEA USA plaintiff was the principal of a trucking company that was an independent contractor delivering furniture almost exclusively for defendant. 332 N.J. Super. 53, 56 (App. Div. 2000). Defendant had an area in the parking lot with an overhang to protect merchandise staged for pick up on pallets. Ibid. Only truckers were allowed under the overhang and metal railings prevented customers' cars from entering. Id. at 57. Despite the exclusion of cars, the area contained boxes of string to assist customers in tying down their purchases. Ibid. Truckers did not use the string. Ibid. On the morning that plaintiff was injured, his feet became entangled in a mass of string on the ground and he fell, injuring his legs. Id. at 58.
Defendant argued that it was not subject to the general duty owed invitees because plaintiff was an independent contractor and defendant could assume that he would recognize the dangers of his task and adjust his methods accordingly. Id. at 63. We found this exception to landowner liability inapplicable because "plaintiff was not injured by a condition created by his task or a risk inherent in his work" but, rather, was injured by conditions of the property. Ibid.
Indeed, where the hazard is "created by doing the contract work," the landowner has no duty to protect the employee. Sanna, supra, 209 N.J. Super. at 67. In fact, "[t]he 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." Wolczak, supra, 66 N.J. Super. at 75.
This exception is carved out of the landowner's general duty to protect his invitees because the landowner may assume that the independent contractor and her employees are sufficiently skilled to recognize the dangers associated with their task and adjust their methods accordingly to ensure their own safety. Dawson, supra, 289 N.J. Super. at 318; Cassano, supra, 226 N.J. Super. at 115. [Accardi, supra, 317 N.J. Super. at 463.]
We have found this exception applicable where a general contractor hired by a landowner had sole responsibility for work-site safety and plaintiff's injuries occurred when the roof trusses he and other workers were installing collapsed. Dawson, supra, 289 N.J. Super. at 319. We concluded that the hazard "was a recognized risk incident to the erection of such roof trusses." Ibid. More recently, we concluded that "[t]he potential that a roofer may fall through any part of an old roof is an inherent risk reasonably foreseeable to the worker." Rigatti v. Reddy, 318 N.J. Super. 537, 543 (App. Div. 1999).
It is, however, said that this exception will not apply when the landowner controls "the manner and means by which the work is to be performed, where the work constitutes a nuisance per se or where one knowingly engages an incompetent contractor." Cassano, supra, 226 N.J. Super. at 113 (citation omitted); see also Majestic Realty Assocs. v. Toti Contracting Co., 30 N.J. 425, 431 (1959).
Correctly concluding that none of these exceptions to the exception applied, the motion judge here held as a matter of law that there was no basis for liability. In doing so, however, she lost sight of the general duty and the limited nature of the exception to it, which arises only when the injury is caused by "the very hazard created by doing the contract work." Dawson, supra, 289 N.J. Super. at 318 (quoting Sanna, supra, 209 N.J. Super. at 67).
Absent an open flame or a spark, there is no evidence in the record to suggest that floor refinishing per se creates a hazard of explosion. The duty to provide a safe workplace is always relative to the nature of the work. Sanna, supra, 209 N.J. Super. at 67. Here, that work involved the use of flammable material and the landowner was under a duty to eliminate open flames in the workplace. Furthermore, the hazard of the flame was not obvious and visible so as to relieve the landowner from its duty, ibid., because defendants blocked Abraham's ability to verify that the gas was off when they piled furniture in front of the stove and water heater in the small kitchen. See also Izhaky v. Jamesway Corp., 195 N.J. Super. 103, 108 (App. Div. 1984).
Even if it could be said that the risk of explosion was inherent to refinishing floors, defendants are still not entitled to summary judgment. It is well recognized that a party to a contract may assume a duty that is "necessary for the protection of the other's person or things." Pfenninger v. Hunterdon Cent. Reg. High School, 167 N.J. 230, 241 (2001) (citing Restatement (Second) of Torts § 323 (1965)). Where such a duty is breached, tort liability may be imposed. Id. at 242. Here, Buzzerio on behalf of BRW and Quil agreed to be responsible for turning off the gas in the apartments and condominiums in which Abraham was to work. BRW and Quil fulfilled that obligation over the years until Killion was recuperating from hernia surgery. With his absence from the office, the gas was left on and the assumed duty was breached. Furthermore, knowing that Abraham checked the appliances to assure his safety before beginning the work, defendants were negligent in blocking his access to the stove and water heater. Summary judgment should not have been granted to defendants based on the facts and reasonable inferences favorable to Abraham.
Buzzerio and Wajswol urge that they cannot be held individually liable for the debts, obligations and liabilities of BRW and Quil and that summary judgment was properly granted to them. We disagree. A corporation can act only through its owners, principals, managers and employees. Sensale v. Applikon Dyeing & Printing Corp., 12 N.J. Super. 171, 175 (App. Div. 1951) ("[A] director or officer who commits the tort or who directs the tortious act to be done, or participates or cooperates therein, is liable to third persons injured thereby, even though liability may also attach to the corporation for the tort."). To the extent that BRW and Quil were negligent, some person or persons affiliated with BRW and Quil must have acted or failed to act. The record does not establish that Buzzerio and Wajswol were free of fault as a matter of law and, thus, it was premature to grant summary judgment to them.
Reversed and remanded for proceedings consistent with this opinion.