LOUIS PATTERSON v. LOUIS PATTERSON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0582-07T20582-07T2

LOUIS PATTERSON,

Plaintiff-Appellant,

v.

RAYMOND L. JOHNSON,

NANCY C. JOHNSON and

EDWARD J. CAIOLA,

Defendants,

and

VTB ELECTRIC, INC.,

Defendant-Respondent.

________________________________________

 

Argued May 19, 2008 - Decided

Before Judges A. A. Rodr guez and Collester.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-544-06.

Joseph E. Kelley argued the cause for appellant (Nusbaum, Stein, Goldstein, Bronstein & Kron, attorneys; Mr. Kelley, on the brief).

Leslie Koch argued the cause for respondent (Methfessel & Werbel, attorneys; Ms. Koch, on the brief).

PER CURIAM

Plaintiff Louis Patterson appeals from the April 13, 2007 summary judgment order dismissing his complaint against defendant VTB Electric, Inc. (VTB). We affirm.

The facts, viewed in the light most favorable to Patterson, can be summarized as follows. On February 17, 2004, Patterson, an employee of Jersey Central Power and Light (JCP&L), went to the home of Raymond L. Johnson and Nancy C. Johnson (homeowners) to perform an electrical connection between JCP&L's power lines and the homeowners' electric meter. The homeowners' electrical lines ran through a small trench in front of the house. Previously, VTB had dug this trench. In order to prevent the trench from accumulating precipitation, VTB erected a plywood covering over it. Thus, any precipitation, condensation or melting would run off the plywood onto the ground.

The day of the accident, Patterson and his partner grabbed the plywood to uncover the trench. There was a pool of ice alongside the trench. Patterson slipped on this ice and he sustained a serious injury to his knee.

Patterson sued VTB, the homeowners, and another contractor for personal injuries. Patterson alleged that VTB was liable for the injuries sustained by Patterson because VTB's actions increased the risk at the construction site and created the specific condition which caused the injury. Defendants answered and denied liability. Following a period of discovery, VTB moved for summary judgment, arguing that it was not liable to Patterson because they were both subcontractors at the site. The homeowners cross-moved for summary judgment. Patterson opposed both motions.

Judge John J. Harper granted VTB's and the homeowners' motions. The judge reviewed the law and analyzed the issues as follows:

The general principle regarding the duties of general contractors is well known. Specifically, general contractors and landowners are not liable for injuries to employees of a contractor resulting from either the condition of the premises or the manner in which the work is performed, Wolczak v. National Electric Products Corp., 66 N.J. Super. 64 at Page 71 (App. Div. 1961). See also Muhammad v. New Jersey Transit, 176 N.J. 185, at Page 198, a 2003 decision of our State Supreme Court.

Exceptions to this rule can be found where the general contractor or landowner controls the work, knowingly hires an incompetent independent contractor, or based upon an inherent danger in the work. See Alloway v. Bradlees, Inc., 157 N.J. 221, Page 229, a 1999 New Jersey Supreme Court Decision.

Thus, the question before this Court is whether VTB and the Johnsons fall within the purview of the general rule or the exceptions. Based upon the proofs, the Court finds there are no genuine issues of material fact and VTB does not owe a duty to plaintiff.

. . . .

VTB argues that this hazard was obvious and that there was no duty to eliminate potential operational hazards which are obvious and visible to the invitee upon ordinary observations. See Wolczak, 66 N.J. Super. at Page 75.

Plaintiff's own testimony indicates that he observed and was aware of ice and snow accumulations, both on his way to and at the Johnsons's residence. As a result, it is reasonable to conclude that VTB owed no duty to plaintiff regarding this condition.

Furthermore, the Court finds that the instant[t] matter is distinguishable from Carvalho v. Toll Brothers and Developers, 143 N.J. 565 (1996). In Carvalho, the engineer was found liable for injuries sustained by the subcontractor because he controlled the project, and was fully aware of the dangers inherent in the deep sewer excavation, but failed to warn the subcontractors.

Here, VTB maintained no control over plaintiff, or his work, and had no knowledge of unsafe conditions requiring VTB to make remedial actions. In fact[,] VTB dug the trench pursuant to JCP&L's instructions. Based upon the foregoing, the Court finds that this case is factually distinguishable from Carvalho.

Instead, the general principle enunciated in Wolczak applies to the instant matter because VTB did not control plaintiff's work, did not knowingly hire an incompetent independent contractor, and was not engaged in work involving inherent dangers. See Alloway, 157 N.J. at 229.

Accordingly, the Court grants VTB's motion for summary judgment.

Patterson now appeals from the April 13, 2007 order as to VTB only. He argues that the judge erred because Patterson "was injured through the active negligence of defendant, VTB Electric, Inc." We reject this contention and affirm substantially for the reasons expressed by Judge Harper in his well-reasoned April 13, 2007 oral opinion. We emphasize that Wolczak and Muhammad govern. The theory postulated by Patterson runs counter to these holdings.

Affirmed.

Edward J. Caiola d/b/a TEK Construction. The claim against this party was dismissed.

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A-0582-07T2

June 10, 2008