July 29, 2010
THOMAS P. O'BRIEN, PLAINTIFF-APPELLANT,
BRISTOL MYERS SQUIBB COMPANY, DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-376-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 6, 2010
Before Judges Stern and Skillman.
Plaintiff appeals from an order of October 24, 2008, granting summary judgment to defendant and dismissing his complaint. The principal issue is whether defendant Bristol Myers Squibb Company ("BMS") retained such control over "the means and methods" of the execution of work by plaintiff's employer, Fluidics, so as to make BMS liable notwithstanding the risk of the work plaintiff's employer was retained to perform as an independent contractor at BMS' central utilities complex in Hopewell.*fn1
As stated by Justice LaVecchia in Olivo v. Owens Illinois, Inc., 186 N.J. 394, 406-07 (2006):
An occupier of land owes a duty to his invitee "to use reasonable care to make the premises safe . . . ." Handleman v. Cox, 39 N.J. 95, 111, 187 A.2d 708 (1963). "[W]here the occupier of land engages an independent contractor to do work upon his premises, an employee of the contractor, while executing the work, . . . is an invitee . . . ." Gudnestad v. Seaboard Coal Dock Co., 15 N.J. 210, 219, 104 A.2d 313 (1954)(citations omitted). Recently, a landowner's duty to an employee of an independent contractor was described as "a duty to provide a reasonable safe work place." Muhammad v. N.J. Transit, 176 N.J. 185, 199, 821 A.2d 1148 (2003) (quoting Wolczak v. Nat'l Elec. Prod. Corp., 66 N.J. Super, 64, 75, 168 A.2d 412 (App. Div. 1961)). That duty includes the obligation of making a reasonable inspection to discover dangerous conditions. Handleman, supra, 39 N.J. at 111, 187 A.2d 708; see also Muhammad, supra, 176 N.J. at 1198, 821, A.2d 1148. Such duty has been held to have been satisfied by warning the independent contractor of the dangerous condition.
Muhammad, supra, 176 N.J. at 198-200, 821 A.2d 1148 (finding that defendant landowner satisfied its duty to protect against dangerous condition on its property by warning contractor; no breach of duty because landowner failed to warn individual employee directly).
Significantly, the law carves out an exception to the requirement that premises be made safe for an independent contractor when the contractor is invited onto the land to perform a specific task in respect of the hazard itself. As stated in Muhammad, supra, "'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.'" Id. at 199, 821 A.2d 1148 (quoting Wolczak, supra, 66 N.J. Super. at 75, 168 A.2d 412). A landowner "'is under no duty to protect an employee of an independent contractor from the very hazard created by the doing of the contract work.'" Id. at 198, 821 A.2d 1148 (quoting Gibilterra v. Rosemawr Homes, 19 N.J. 166, 170, 115 A.2d 553 (1955)). This exception to the landowner's general duty exists because "[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." Id. at 199, 821 A.2d 1148 (quoting Wolczak, supra, 66 N.J. Super. at 75, 168 A.2d 412). The exception only applied however, when "the landowner does not retain control over the means and methods of the execution of the project." Id. at 198, 821 A.2d 1148.
Applying these principles, we affirm the grant of summary judgment substantially for the reasons expressed by Judge Heidi Willis Currier in her opinion of October 24, 2008.
Plaintiff insists, however, that BMS had "substantial control over all of Fluidics activities," or that a material factual dispute existed on the subject. Moreover, plaintiff claims he had to climb over or under pipes to operate the valves as a result of the placement of the pipes and machinery by BMS which had "exclusive control over the means and methods of the work" and "complete control over" BMS' central utilities complex ("CUC"). However, in its contract with BMS, plaintiff's employer was obligated to "retain only individuals with suitable professional training to perform the [s]ervices for BMS," and was "responsible for adhering to all individual BMS safety, occupational, health, environmental and operational procedures as well as to all local, state and federal laws and regulations including but not limited to Occupational Safety and Health Act (OSHA)" and other agency regulations. Fluidics also had to supply "all associated safety equipment." Moreover, plaintiff proffered no expert to suggest that, from a professional point of view, Fluidics did not maintain day-to-day control over the CUC. In this setting, we agree with Judge Currier, and affirm the grant of summary judgment.