ROBERT TOMKINS v. DONNA REIN, RAYMOND DELGADO et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3005-04T33005-04T3

ROBERT TOMKINS,

Plaintiff-Appellant,

v.

DONNA REIN, RAYMOND DELGADO and THOMAS FRICK,

Defendants-Respondents.

______________________________________

 

Argued December 8, 2005 - Decided January 30, 2006

Before Judge Parker and Lihotz.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. MON L 4310-03.

Martin F. Kronberg argued the cause for appellant.

Marie A. Accardi argued the cause for respondent Donna Rein (Ronan, Tuzzio & Giannone, attorneys; William J. Connelly of counsel and on the brief; Ms. Accardi, on the brief).

PER CURIAM

Plaintiff, Robert Tomkins, appeals the trial court's order granting summary judgment dismissing his negligence complaint against defendant, Donna Rein. We affirm as these facts do not establish a basis to impose liability on the residential landowner.

Defendant, Donna Rein, engaged defendant, Raymond Delgado, to remove a large 100'-150' evergreen tree from her front yard. Delgado and Rein were co-workers at a health center. When she mentioned the need to remove the tree, he explained he operated a part-time business doing odd jobs known as "Jobs Unlimited" and that he had removed trees. Delgado and Thomas Frick inspected the tree and quoted a price of $450 for its removal. Delgado assured Rein he had prior tree felling experience and was able to remove her tree.

Tomkins was a childhood friend of Delgado, who had assisted him on six prior occasions doing odd jobs, none of which involved removing trees. Although Tomkins had past training from his employment working on New York City skyscraper construction projects, his tree removal experience was limited to cutting trees in his yard.

Delgado, Tomkins and Frick went to Rein's property on March 17, 2002, to take-down the tree. Tomkins borrowed a harness from work and brought his chainsaw. Rein greeted the men then left. Plaintiff, using the harness, climbed the tree and began to cut the limbs, working his way to the roofline of the house. While Tomkins stood on the roof attempting to cut the tree, Delgado and Frick, who were on the ground, failed to hold a rope tied around the tree, causing the tree to snap back, striking Tomkins and causing his injuries.

Tomkins sued Rein, Frick and Delgado. The claims against Delgado and Frick were voluntarily dismissed because they were uninsured. Tomkins, claiming his action falls within the exceptions to the general rule that landowners are not liable for the negligence of independent contractors, seeks to impose liability for his injuries on Rein, asserting she hired an incompetent contractor, or in the alternative, because the work in removing the tree was inherently dangerous.

A negligence cause of action requires proof that a defendant owed a duty of care, the defendant breached that duty, and injury was proximately caused by the breach. Siddons v. Cook, 2005 N.J. Super. lexis 362 (App Div. 2005); Gilleski v. Cmty. Med. Ctr., 336 N.J. Super. 646, 652 (App. Div. 2001). Absent a legal duty of care, no recovery for negligence is warranted. Dwyer v. Sky Line Apts., 123 N.J, Super. 48, 52 (App. Div.), aff'd, 63 N.J. 577 (1973); Krauth v. Geller, 54 N.J. Super. 442, 453 (App. Div. 1959), aff'd, 31 N.J. 270 (1960).

In most circumstances, a landowner has "a non-delegable duty to use reasonable care to protect invitees against known or reasonably discoverable dangers" existing on their property. Kane v. Hartz Mountain Indus., 278 N.J. Super. 129, 140 (App. Div. 1994), aff'd, 143 N.J. 141 (1996). This general rule operates to protect individuals performing work on the premises of the landowner, most commonly independent contractors. Cassano v. Aschoff, 226 N.J. Super. 110, 115 (App. Div.), certif. denied, 113 N.J. 371 (1988). See Accardi v. Enviro-Pak Sys. Co., 317 N.J. Super. 457 (App. Div.), certif. denied, 158 N.J. 685 (1999), and cases cited therein.

However, in New Jersey, a homeowner who hires an independent contractor is generally not responsible for the negligent acts of that contractor. Mavrikidis v. Petullo, 153 N.J. 117, 131 (1998); Majestic Realty Associates, Inc. v. Toti Contracting Co., 30 N.J. 425, 430-31 (1959). The standards expressed by the Supreme Court in Majestic, supra, remain unchanged.

 
The problem must be approached with an awareness of the long settled doctrine that ordinarily where a person engages a contractor, who conducts an independent business by means of his own employees, to do work not in itself a nuisance (as our cases put it), he is not liable for the negligent acts of the contractor in the performance of the contract. (Citations omitted). Certain exceptions have come to be accepted, i.e., (a) where the landowner retains control of the manner and means of the doing of the work which is the subject of the contract; (b) where he engages an incompetent contractor, or (c) where, as noted in the statement of the general rule, the activity contracted for constitutes a nuisance per se.

 
[Majestic, supra, 30 N.J. at 431 (citations omitted).]

See also, Muhammad v. N.J. Transit, 176 N.J. 185, 197 (2003);
Alloway v. Bradlees, Inc., 157 N.J. 221, 229 (1999); Bahrle v. Exxon Corp., 145 N.J. 144, 156 (1996).

There is no disagreement on Delgado's status as an independent contractor. Tomkins argues he was only Delgado's friend not his employee or a co-independent contractor. Tomkins also maintains Rein "knew or should have known of Delgado's incompetence to do this job as he really was a full-time technician in a dialysis center who she knew had a side job where he put in cabinets and painted. She had no knowledge that he was equipped to remove a very large tree." Finally, Tomkins proffers the removal of a tree which exceeded 100' in height was in and of itself, "inherently dangerous" and could only be completed by "qualified tree surgeons."

We are not persuaded by these arguments. Tomkins' personal relationship with Delgado does not change his legal relationship with him. He was a "hired hand" to assist Delgado in performing the tree removal. He expected payment, provided tools necessary to perform the tree removal and initiated his role in that task. He does not stand as an innocent third party who suffered injuries as a result of inherently dangerous work.

Our courts continue to follow the rule that landowner liability does not extend to employees of an independent contractor whose injury results from the very risks which are inherent to the work they were hired to perform. Thus, a

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. Thus . . . 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.

[Cassano, supra, 226 N.J. Super. at 115-116. (quoting Donch v. Delta Inspection Services, Inc., 165 N.J. Super. 567, 574 (Law Div. 1979)).]

See also Dawson v. Bunker Hill Plaza Assocs., 289 N.J. Super. 309, 318 (App. Div.), certif. denied, 146 N.J. 569 (1996) (holding an owner is not responsible for harm which occurs to an employee as a result of the very work the employee was hired to perform).

Additionally, "the fact that a contractor is negligent or incompetent in the manner in which he performs a particular job does not mean that he is incompetent generally." Cassano, supra, 226 N.J. Super. at 114. Plaintiff has presented no facts to support the position Rein had prior knowledge of Delgado's incompetence.
After carefully reviewing the record and considering the written and oral arguments advanced by the parties, we conclude the findings and conclusions of the trial judge are supported by adequate, substantial, credible evidence in the record, Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974), and we affirm for the reasons expressed by Judge Gilroy in his oral opinion rendered on January 21, 2005.

 
Affirmed.

(continued)

(continued)

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A-3005-04T3

January 30, 2006