On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-2286-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and C.L. Miniman.
Plaintiff Robert Edward Sutkowski appeals from a July 31, 2009, order granting summary judgment to defendants Bazyli Tymczyna and Olga Tymczyna, because defendants owed no duty of care to plaintiff under the facts and circumstances of the case.
Plaintiff also appeals from an October 8, 2009, order denying reconsideration of the summary judgment because the standard for reconsideration had not been met.*fn1 We now reverse and remand.
The following material facts were submitted on defendant's motion for summary judgment and plaintiff's opposition to that motion. Defendant is a widow residing in Newark. Defendant called plaintiff's mother and asked her to request that her son help her in cleaning her gutters and hanging Christmas decorations. She offered to pay $100 for his assistance.
On December 10, 2006, plaintiff went to defendant's home, and defendant told him to clean out the gutters, hammer down any nails that were protruding from the gutters, and hand her Christmas lights. As they walked to the rear of the house, defendant explained how she wanted the work to be performed. She told him that he would be cleaning the upper and lower gutters by removing leaves and acorns. She pointed out nails that needed to be hammered back into place. She specifically told him that the upper gutter needed the nails hammered.
Defendant provided plaintiff with a hammer, short ladder, plastic bags for the leaves, a garden hose, and a plastic container for trash. Further, she showed him how to access her roof through an open window in the front of the house. She led him through her house to the window and showed him how to get onto the roof. Plaintiff asked defendant for a long ladder that he could use to access the roof, but she informed him that she did not have access to a long ladder. She assured him that previous workmen who cleaned the gutters went in and out of her house through the window and onto the roof.
As plaintiff was performing the work, defendant assisted him by handing him the short ladder through the window so he could access the upper gutter. As he worked, she provided him with empty plastic bags to fill with waste from the gutters. She handed him the hose to spray out the gutters and turned on the water for him. Plaintiff handed her the full plastic bags, and she disposed of them.
Once the gutters at the front of the house were clean, plaintiff walked across the roof to the rear of the home to clean the rear gutters. Defendant showed plaintiff the nails that needed to be hammered back into place. She showed him how to enter her home and climb out another window to go from the upper roof to the lower roof. When the rear gutters were clean, defendant reminded plaintiff to hammer the gutter nails. She watched him perform this work to ensure that the nails were properly hammered down. In all, defendant instructed plaintiff in the specific techniques he was to use in performing the work.
While plaintiff stood on the lower roof to nail the gutters, he accidentally stepped off the roof and fell to the ground. Plaintiff was severely injured as a proximate result of his fall. Plaintiff admitted that he most likely was not looking down at the roof when he fell.
In support of summary judgment, defendant argued that she "owed no duty to plaintiff, an independent contractor, to protect him from a risk inherent in the job he agreed to perform." In support of this proposition, defendant relied on Muhammad v. New Jersey Transit, 176 N.J. 185 (2003); Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439 (1993); Moore v. Schering Plough, Inc., 328 N.J. Super. 300 (App. Div. 2000); Rigatti v. Reddy, 318 N.J. Super. 537 (App. Div. 1999); Wolczak v. National Electric Products Corp., 66 N.J. Super. 64 (App. Div. 1961); and four unreported Appellate Division opinions.
Plaintiff urged that there were material disputes of fact precluding summary judgment, that defendant controlled the means and method of performing the work, and that defendant had a non-delegable duty of care. Plaintiff relied on Rigatti, supra, 318 N.J. Super. 537; Majestic Realty Associates, Inc. v. Toti Contracting Co., 30 N.J. 425, 431 (1959); Basil v. Wolf, 193 N.J. 38, 63-64 (2007); and Pfenninger v. Hunterdon Central Regional High School, 167 N.J. 230, 252 (2001). Plaintiff also distinguished the cases on which defendant relied.
The motion judge correctly stated the legal standard governing determination of a motion for summary judgment and then found that "there is no genuine dispute as to any material fact." After discussing case law respecting duty of care, including that of landowners to independent ...