ZHANNA DZABIEV v. DAVID ROM, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2352-04T12352-04T1

ZHANNA DZABIEV, IN HER

CAPACITY AS PERSONAL

REPRESENTATIVE OF THE

ESTATE OF BIDZINA

TUKHASHVILI,

Plaintiff-Appellant,

v.

DAVID ROM and YELENA ROM,

Defendants-Respondents.

________________________________________________________________

 

Argued November 29, 2005 - Decided April 6, 2006

Before Judges Kestin, Lefelt and Hoens.

On appeal from the Superior Court of

New Jersey, Law Division, Essex County,

Docket No. L-4639-03.

Victoria A. Flynn argued the cause for

appellant (Decotiis, Fitzpatrick, Cole

& Wisler, attorneys; Benjamin Clarke,

on the brief, and Curtis, Thaxter &

Stevens, of the Maine Bar, Paul Boots

and David P. Silk, of counsel).

John V. Mallon argued the cause for

respondents (Chasan, Leyner &

Lamparello, attorneys; Mr. Mallon, of

counsel; Cindy Nan Vogelman, on the

brief).

PER CURIAM

In early 2001, defendants David and Yelena Rom hired Bidzina Tukhashvili to paint the interior walls and refinish the wooden floors in a two-unit apartment building the Roms owned and lived in. Tragically, in the course of this work, Tukhashvili died after the floor lacquer he was using exploded when ignited by a stove pilot light. Tukhashvili's wife, plaintiff Zhanna Dzabiev, sued the Roms as personal representative of her husband's estate, and now appeals from Judge Rachel Davidson's summary judgment, dismissing the complaint. On appeal, plaintiff argues that Judge Davidson erred in finding that defendants did not owe decedent any duty of care and that there were no factual issues precluding summary judgment. We affirm.

Here are the facts. Decedent had emigrated to the United States in 1998 from the Republic of Georgia. Before coming to the United States, decedent worked as a veterinarian and mechanic.

Although he had no place of business, no business phone, no business cards, no business vehicle, and was not licensed as a home repair contractor, he had some prior experience refinishing floors. In fact, he was recommended to the Roms by a satisfied customer. The Roms, who spoke with Tukhashvili in Russian, found his estimate to be lower than the other bids they had received and hired him for $6,000 to paint the interior walls and refinish the floors in a second-floor apartment, where they normally lived.

Besides the work Tukhashvili had been hired to perform, the Roms were also remodeling the kitchen in the second-floor apartment. As part of the remodeling project, the gas stove was removed, and the Roms moved to the vacant first floor apartment while the painting, refinishing, and remodeling work was being done.

Decedent purchased and supplied all of the floor refinishing materials he required for the second-floor job. The Roms supplied only paint and did not know what materials were to be used for the floor refinishing nor did they tell decedent what type finish they wanted on the floors. Decedent worked for approximately one month and refinished the floors in the living room, dining room, kitchen and three bedrooms.

Before work on the second-floor was completed, the Roms, who were apparently satisfied with the quality of decedent's work, hired him for an additional $3,000 to paint the interior walls and refinish the floors of the first-floor apartment.

Before beginning work on the first-floor apartment, Tukhashvili returned home to the Republic of Georgia for a visit. While decedent was absent, the Roms had a new gas stove installed in the second-floor apartment, and they moved back upstairs. When the Roms vacated the first-floor apartment, they simply left the gas stove where it had been in the kitchen of the first-floor apartment. The pilot light of the gas stove, which the Roms had been using, remained lit.

As decedent had done with the second-floor job, upon his return from the Republic of Georgia, he rented the sander and purchased all other equipment for the first-floor refinishing job, including the lacquer to be used on the floors. Again, the Roms did not know what materials decedent used for the finish and did not specify what materials they wanted as a finish. The Roms were not present in the first-floor apartment when decedent was working.

The Roms claimed not to be aware of any necessary precautions, including extinguishing the pilot light or the need for ventilation, which may have been required while using the refinishing lacquer. Neither Mrs. Rom nor Mr. Rom discussed the pilot light or any precautions with decedent. Mr. Rom did not know if the pilot light was on at the time of the explosion.

On June 8, 2001, around 7:00 p.m., as decedent was completing the refinishing of the floors, an explosion occurred. Decedent sustained burns over almost his entire body, causing his death approximately eight days later.

Upon investigation, the Fire Department found a melted paint roller and roller tray on the kitchen floor and flammable lacquer in the driveway. The first-floor apartment was not properly ventilated, with a single kitchen window open. According to the Fire Marshal, the first floor where decedent "was working became permeated with flammable lacquer fumes. The fumes were then ignited by the pilot light of the kitchen stove causing a flash fire with intense heat." The investigating officers located a five gallon can of "Ever Sand" lacquer sanding sealer at the rear door of the home. "This sealer was clearly marked 'Danger Flammable.'"

Although decedent did not have any of the trappings of a formal floor-finishing business, the circumstances of his hiring and the manner in which the job was undertaken make him an independent contractor. See Bahrle v. Exxon Corp., 145 N.J. 144, 157 (1996). Upon his hiring, the Roms owed him a "reasonable safe place" to do the work. Moore v. Schering Plough Inc., 328 N.J. Super. 300, 306 (App. Div. 2000). Plaintiff claims that the trial judge should have allowed a jury to decide whether the Roms breached this duty by not warning decedent of the pilot light or turning off the gas to the stove. We disagree.

Although decedent was a contractor, the homeowners in this case cannot be considered general contractors because they did not supervise decedent. See Carvalho v. Toll Bros. & Developers, 143 N.J. 565, 575 (1996). Furthermore, the Roms exercised no administrative control over this project. In Slack v. Whelan, 327 N.J. Super. 186 (App. Div. 2000), we found the homeowners not liable for injuries to a worker who fell while spackling sheetrock on a cathedral ceiling. Id. at 188-89. We pointed out that the homeowners were not liable for the injury because they did not have a contract requiring them to provide oversight, did not supervise the actual work, did not direct the means or method of work performed, did not furnish the equipment used, were not present at the worksite, and were unaware of the risk of harm to the plaintiff. Id. at 194. That is the case here.

"[T]he landowner '[i]s under no duty to protect an [independent contractor] from the very hazard created by doing the contract work.'" Rigatti v. Reddy, 318 N.J. Super. 537, 541-42 (App. Div. 1999) (quoting Dawson v. Bunker Hill Plaza Assocs., 289 N.J. Super. 309, 318 (App. Div.), certif. denied, 146 N.J. 569 (1996) (quoting Sanna v. National Sponge Co., 209 N.J. Super. 60, 67 (App. Div. 1986)). "[L]andowner liability does not extend to [an independent contractor] whose injury results from the very risks which are inherent to the work [he was] hired to perform." Cassano v. Aschoff, 226 N.J. Super. 110, 115 (App. Div.), certif. denied, 113 N.J. 371 (1988).

As Judge Drier pointed out over twenty years ago, a "'landowner may assume that the worker . . . [possessed sufficient skill] to recognize the degree of danger involved and to adjust [his or her] methods of work accordingly.'" Donch v. Delta Inspection Services, Inc., 165 N.J. Super. 567, 574 (Law Div. 1979) (quoting Wolczak v. National Electric Prod. Corp., 66 N.J. Super. 64, 75 (App. Div. 1961)). "[T]he duty to provide a reasonably safe working place for [independent contractors] does not relate to known hazards which are part of or incidental to the very work the contractor was hired to perform." Ibid.

The flammability of the material used by decedent was inherent in the work he was hired to perform. This case is unlike Bergquist v. Penterman, 46 N.J. Super. 74, 77 (App. Div.), certif. denied, 25 N.J. 55 (1957), where decedent floor finisher was fatally burned when a plumber in the basement of a home under construction ignited a blow torch. Bergquist did not involve a private homeowner, and the explosion occurred during construction of a twenty-six home development. The refinisher in Bergquist could not reasonably have anticipated the plumber's actions.

Here, decedent was working with flammable lacquer in an apartment with an ordinary stove where no one claims ventilation was impossible. This risk is within the normal dangers incidental to floor refinishing, and we see no reason, in this case, to extend liability to the homeowners.

 
Affirmed.

(continued)

(continued)

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A-2352-04T1

April 6, 2006