ISA SATILMIS v. WOROCO, INC.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6057-04T16057-04T1

ISA SATILMIS,

Plaintiff-Appellant,

v.

WOROCO, INC., MARLON BELISKI,

individually and MARLON

BELISKI d/b/a WOROCO GAS

STATION,

Defendants-Respondents.

__________________________________

 

Submitted: February 7, 2006 - Decided February 24, 2006

Before Judges Collester, Lisa and S.L. Reisner.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, L-6066-03.

Pamela S. Roedel, attorney for appellant.

Edward Hoagland, Jr., attorney for respondents (Chris W. Kemprowski, on the brief).

PER CURIAM

Plaintiff, Isa Satilmis, appeals from a summary judgment dismissing his complaint and denial of plaintiff's subsequent motion for reconsideration. He argues that the trial judge erred in granting summary judgment to defendants because he raised legitimate issues of material fact and is entitled to a trial. We reject this argument and affirm.

Viewing the motion record in the light most favorable to plaintiff, see Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), these are the facts. Plaintiff was employed by Muharren Gungen, a painting contractor. Gungen contracted with defendant Woroco, Inc., to paint its gas station in Nutley. Defendant Marlon Beliski was the president of Woroco, Inc. The contractual arrangements provided that Gungen would provide all equipment for the job. Defendants were not required to provide any equipment for this purpose.

On November 8, 2001, Gungen brought with him to the gas station a wheeled platform rented from Home Depot. The platform was not of sufficient height to enable Gungen and plaintiff to reach the highest points of the gas station. Without authorization, Gungen went into the back of the gas station building to an area that was restricted to employees only. He removed an A-frame ladder and set it up on the platform. Gungen worked for a time on the ladder and then left the job site to purchase supplies. Plaintiff then began using the ladder. The ladder slipped and caught on the edge of the platform, as a result of which plaintiff fell and was injured. During this entire incident, Beliski was not present. According to plaintiff, the ladder was old and in a state of disrepair.

Judge Claude M. Coleman granted defendants' summary judgment motion, concluding there was no evidence that defendants retained control of the manner and means of doing the contract work, and defendants had no input in the use or rigging of the ladder nor of the painting process. He also noted the lack of evidence that the ladder was defective.

On appellate review, we consider the matter de novo and apply the same standard as the trial judge. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). We must decide whether there was a dispute as to a genuine issue of material fact, and if there was not, whether the trial court's ruling on the law was correct. Ibid.

We agree that on this factual record there is no basis in the law to impose liability upon the property owner. "[O]rdinarily where a person engages a contractor, who conducts an independent business by means of his own employees, . . . he is not liable for the negligent acts of the contractor in the performance of the contract." Majestic Realty Assocs., Inc. v. Toti Contracting Co., 30 N.J. 425, 430-31 (1959). Plaintiff acknowledges the general rule but relies upon one of the recognized exceptions, "where the landowner retains control of the manner and means of the doing of the work which is the subject of the contract." Id. at 431. Plaintiff further relies upon a potential exception, which might impose liability on a landowner who furnishes equipment used for the performance of the contract. See Mavrikidis v. Petullo, 153 N.J. 117, 134 (1998).

It is plain to us that neither of these exceptions apply here. Under the contractual arrangements between the parties, defendants did not exercise control over the manner in which the work was performed. Defendants hired an independent contractor to perform specified work, namely the painting of the gas station building. The specific means by which the contractor performed the work was no concern of defendants nor a subject over which they exercised any control or supervision. Likewise, defendants did not "furnish" the ladder to plaintiff's employer. The contractual arrangements provided that the contractor would furnish his own equipment and defendants were not obligated to furnish any equipment. Further, plaintiff's employer took it upon himself to appropriate to his use a ladder on defendants' premises, taking it from an area to which he was not authorized to have access, and doing so without authorization.

We also agree with Judge Coleman that plaintiff presented no competent evidence to establish that the ladder was defective.

 
Affirmed.

(continued)

(continued)

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A-6057-04T1

February 24, 2006