U.S. District Court Follows Established New Jersey Jurisprudence in Cases Involving Construction Work Site Accidents
Construction Group Newsletter
July 29, 2011
A series of recent Federal court decisions, all applying the substantive law of the State of New Jersey, has reinforced long-standing principles of construction workplace accident law, both with respect to the duties of property owners to independent contractors and with respect to the duties that may be owed by general contractors and construction managers to subcontractors and their employees.
In Burger v. Sunoco, 2009 U.S. Dist. LEXIS 115474 (D.N.J. Dec. 10, 2009), District Court Judge Jerome B. Simandle denied summary judgment motion filed by defendants, including the property owner, which sought dismissal of plaintiff’s personal injury claim arising out of a workplace accident. The plaintiff, an employee of the contractor retained to perform general repair and maintenance on the defendant’s facility, had fallen through a defective roof while performing work related to skylights atop the building. Defendants argued that the property owner had no duty to an independent contractor, relying on the well-settled doctrine that creates an exception to the general duty of a property owner to invitees, i.e. that the property owner is “under no duty to protect an employee of an independent contractor from the very hazard created by doing the contract work.” Id. at *3 (quoting Accardi v. Enviro-Pak Systems Co., Inc., 317 N.J. Super. 457 (App. Div. 1999)). As the Court recognized, “[t]he exception [which originated in Broecker v. Armstrong Cork Co., 128 N.J. L. 3 (N.J. 1942)] is well-justified and simple to understand and apply. A landowner is not required to correct or make safe the very condition he is hiring the contractor to repair. Were it otherwise, he could never safely hire a contractor to repair any dangerous condition.” Id. at *4. In this case, however, the Court determined that the defect in the roof, which was caused by a faulty repair performed by a prior owner, was wholly unrelated to the skylight work being performed by plaintiff and his employer and, as such, the exception did not apply. As the Court noted, by way of example, “if a contracted worker is injured while ascending a ladder with an unknown defect belonging to the landowner, the exception would not apply.” Id. at *6. The Court concluded that “[t]o apply the doctrine to circumstances in which the injury results from a pre-existing defect in the building that is distinct from (and not revealed by the existence of) the defect being repaired is to expand it beyond the purposes called for in the doctrine.” Thus, defendant property owner’s request for summary judgment was denied. Id. at *10-11.
Similarly, in Jaworowski v. Ciassulli, et al., 2009 U.S. Dist. LEXIS 2009 (November 20, 2009), District Judge Garrett E. Brown, Jr. was called upon to analyze the exception to the general duty owed by property owners to their invitees, but, unlike in Burger, found that the exception did apply to shield the property owner from liability. In Jaworowski, the plaintiff employee fell from a scaffold that had been built by his employer (the masonry subcontractor), and was hit on the head by a falling brick. Id. at *3. The Court stated that “landowners are not liable for injuries to such employees that arise from the very work the landowner hired the independent contractor to perform” unless the landowner retains control over the means and methods of construction. Id. at *9-10 (citing Dawson v. Bunker Hill Plaza Assocs., 289 N.J. Super. 309 (App. Div. 1996)). Although the property owner in Jaworowski had representatives on site during construction, including on the day of the plaintiff’s accident, the Court found that this evidence revealed that although the owner “actively tracked the progress of the construction project,” the owner had not “retained control over, or otherwise participated in setting, the manner and means by which the project was completed.” Id. at *14. As such, and because the property owner had no contractual obligation to supervise the subcontractor’s work or to provide safety equipment, the Court entered summary judgment in favor of the defendant property owner.
In Jones v. Dandrea Constr. Co., Inc. , 2009 U.S. Dist. LEXIS 91320 (Sept. 30, 2009), Magistrate Judge Ann Marie Donio was confronted with a slightly different issue, i.e. the duty owned by a general contractor or construction manager to a subcontractor’s employee. The plaintiff in Jones, an employee of the subcontractor installing a roof on a school construction project in New Jersey, fell from a twelve foot high roof while performing sheet metal work. Plaintiff sued both the general contractor and the construction manager, contending that the work site was under the defendants’ management and control, and that they owed a duty to anyone performing construction work on the project. Id. at *2. The defendants moved for summary judgment, arguing that they owed no such duty to the plaintiff.
The Court carefully reviewed the underlying contracts and the uncontested facts at issue and denied summary judgment. In particular, the Court placed considerable emphasis on the fact that the contracts for the project imposed express obligations on both the general contractor and the construction manager relating to workplace safety. Id. at *5-8. In addition, the Court determined that it was foreseeable to both the general contractor and the construction manager that the flat roof from which the plaintiff fell presented a risk of injury because it lacked perimeter protection. The combination of the defendants’ contractual agreement to ensure site safety and the foreseeability of harm led the court to impose a duty of reasonable care on both the general contractor and the construction manager. As such, and because there were genuine issues of material fact as to whether the defendants breached this duty, the court denied the defendants’ motions for summary judgment.
While these three cases, all recently decided by the United States District Court for the District of New Jersey, do not signal a departure from well-settled principles of New Jersey workplace construction accident jurisprudence, they do provide guidance for practitioners counseling clients on construction projects. Significantly, New Jersey building and property owners should not be held accountable for workplace accidents that arise directly from the work for which they have hired a contractor in the first instance. This does not mean, however, that owners can completely escape liability for all work site injuries. Owners will likely, in fact, be held responsible for dangerous conditions on their property that are not related to the construction activities being performed. Moreover, even where the accident arises directly out of the work performed by the contractors on the project, owners may be responsible if they maintain control over the means and methods of the construction process.
Finally, general contractors and construction managers should be aware that the Federal courts in New Jersey (and any other courts where New Jersey law applies) will almost certainly take the lead of the New Jersey state courts in imposing a legal duty to ensure the safety of workers on construction sites, particularly where there is contract language addressing site safety issues, and the risk of injury is reasonably foreseeable.