ANDRES HERNANDEZ v. M-INDUSTRIES, LLC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0747-09T30747-09T3

ANDRES HERNANDEZ and LUZ

HERNANDEZ, his wife,

Plaintiffs-Appellants,

v.

M-INDUSTRIES, LLC,

Defendant-Respondent.

________________________________________________

 

Argued June 15, 2010 - Decided

Before Judges Fisher and Reisner.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-6079-07.

Herbert J. Kessler argued the cause for appellants (Kessler, DiGiovanni & Jesuele, attorneys; Mr. Kessler, on the brief).

Vincent E. Reilly argued the cause for respondent (Coughlin Duffy, LLP, attorneys; Mr. Reilly, of counsel and on the brief; Jason Pozner, on the brief).

PER CURIAM

Defendant M-Industries, LLC (defendant) is the owner of a commercial warehouse in North Bergen. Defendant retained Mack Management to maintain the warehouse. Plaintiff Andres Hernandez (plaintiff) was an employee of Mack Management who, in the course of his employment on April 16, 2007, was injured when he fell through the warehouse roof while attempting to cover a leaky skylight with a tarp. Plaintiff commenced this action against defendant for damages, alleging defendant negligently permitted a dangerous condition on its property to cause injury to plaintiff.

Defendant moved for summary judgment, arguing that it owed no duty to an employee of the independent contractor hired to maintain the premises and who was injured while engaged in the very work the independent contractor was hired to perform. Agreeing with defendant's position, Judge Edward T. O'Connor, Jr. granted the motion, and plaintiffs filed this appeal.

The record revealed that plaintiff had worked for Mack Management since 1984. At the time of the accident, plaintiff was a building manager and maintenance foreman. The record discloses some dispute about plaintiff's proficiency, but we find that dispute to be inconsequential. Plaintiff's supervisor testified at his deposition about plaintiff's many duties, including plaintiff's need at times to perform work on the building's roof. Indeed, plaintiff acknowledged this in his own deposition testimony; he was asked whether the building had any problems with leaking skylights prior to the leak that prompted his scaling the roof with another employee on the date in question:

A. Yes, they did have problems.

Q. Do you recall what the problems were?

A. Some were just regular roof leaks. Not the skylight. Mostly like cracks on the roof and stuff like that.

Q. When that would happen, what would you do?

A. Mainly, I would get a can of tar, spackle over it.

Plaintiff also acknowledged in his deposition that he had previously covered a leaky skylight with a tarp prior to the events in question. And plaintiff admitted that he had, on a monthly basis, cleaned drains on the roof of each building that Mack Management maintained. In short, despite efforts in his opposing papers to minimize the scope of plaintiff's employment, there was no legitimate or genuine dispute that plaintiff was acting within the scope of his employment and past experience when attempting to cover the skylight with a tarp and falling through the skylight on April 16, 2007.

It is true that, as a general matter, a landowner has a nondelegable duty to use reasonable care to protect invitees against known and reasonably discoverable dangers. Dawson v. Bunker Hill Plaza Assocs., 289 N.J. Super. 309, 317-18 (App. Div.), certif. denied, 146 N.J. 569 (1996); Kane v. Hartz Mountain Indus., 278 N.J. Super. 129, 140 (App. Div. 1994), aff'd o.b., 143 N.J. 141 (1996). However, when the invitee is employed by an independent contractor hired by the landowner to perform work, the landowner has "a duty to provide a reasonably safe work place," but no duty "to protect an employee of an independent contractor from the very hazard created by doing contracted work." Olivo v. Owens-Illinois, Inc., 186 N.J. 394, 406-407 (2006); see also Muhammad v. N.J. Transit, 176 N.J. 185, 198-99 (2003). This exception is based on the understanding that 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." Olivo, supra, 186 N.J. at 407.

In considering defendant's motion, Judge O'Connor, by way of a very thorough and thoughtful oral opinion, applied these principles to the undisputed facts, which we briefly outlined above, and the additional circumstances that defendant did not supervise the work in question or supply equipment or tools for the necessary repairs. See Muhammad, supra, 176 N.J. at 198; Rigatti v. Reddy, 318 N.J. Super. 537, 543 (App. Div. 1999).

 
We affirm the order granting summary judgment in favor of defendant substantially for the reasons set forth in Judge O'Connor's opinion.

Plaintiff's wife asserted a per quod claim for her loss of consortium.

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A-0747-09T3

July 15, 2010