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Burger v. Sunoco

December 10, 2009

DAVID BURGER, PLAINTIFF,
v.
SUNOCO, INC. (R&M), ET AL., DEFENDANTS.



The opinion of the court was delivered by: Hon. Jerome B. Simandle

OPINION

I. INTRODUCTION

This matter is before the Court upon Defendants' motion for summary judgment [Docket Item 29]. For the reasons given below, the motion will be denied.

II. BACKGROUND

This is a negligence suit arising out of an accident that occurred on September 10, 2004, at the Eagle Point Refinery in Westville, New Jersey. (Compl. ¶¶ 1-4.) Plaintiff's employer, Bozarth Maintenance, was contracted to perform general repair and maintenance of the facility, which had recently been acquired by Defendants. Among other tasks, Bozarth was asked to price the replacement of leaky skylights in the garage maintenance building roof at the Refinery.*fn1 (Pl.'s Dep. 122:3-122:10.) For at least two weeks before the accident, the Bozarth crew performed measuring work atop of the maintenance garage building, accessing it by a permanent access ladder affixed to the side of the building. (Id. at 125:21-126:10.) On September 10, the Plaintiff fell through the roof some 20 feet to the floor while traversing the roof. (Id. at 135:3-136:6.) The after-accident engineering reports concluded that a defect in the roof caused by an improper repair performed by the previous owners of the facility resulted in the partial roof collapse. (McFadden Dep. 59:10-24.) Plaintiff sustained severe injuries.

The question on this summary judgment motion is narrow. Defendants claim that no duty is owed to an independent contractor under these circumstances. Plaintiff maintains that the claimed exception does not apply here, and that the more general duty of a landowner to a business invitee is applicable.*fn2

III. DISCUSSION

A. Summary Judgment Standard

Summary judgment is appropriate when the materials of record "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). A dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the non-moving party." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" only if it might affect the outcome of the suit under the applicable rule of law.

Id. Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment. Id.

B. Contractor's Hazard Exception

Notwithstanding a landowner's general duty to protect his invitees, a "landowner is under no duty to protect an employee of an independent contractor from the very hazard created by doing the contract work." Accardi v. Enviro-Pak Systems Co., Inc., 722 A.2d 578, 580 (N.J. Super. Ct. App. Div. 1999) (quoting Dawson v. Bunker Hill Plaza Assoc., 673 A.2d 847 (N.J. Super. Ct. App. Div. 1996)).

This exception originated in Broecker v. Armstrong Cork Co., 24 A.2d 194 (N.J. 1942). In that case, an independent contractor fell through a rotted portion of the roof that he was repairing and replacing. The court reasoned that there should be an exception to the general duty owed by a landowner when "an independent contractor, comes upon lands, at the instance of the owner or occupier, to correct the precise condition which causes the injury." Id. at 196. The court reasoned:

As well might it be said that a contractor, employed to level the uneven condition of a sidewalk, may recover, from his contractee for injuries which he receives in the course of his work by stumbling over the very obstacle that he is engaged to remove. It is said by the appellant that the deceased workman should have been provided with a scaffolding built under the roof so that he need not have ...


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