THOMAS HACKETT v. SOMERSET EXECUTIVE SQUARE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

THOMAS HACKETT,

Plaintiff-Appellant/

Cross-Respondent,

v.

SOMERSET EXECUTIVE SQUARE,

DENHOLTZ ASSOCIATES, STEVEN1

DENHOLTZ,

Defendants-Respondents/

Cross-Appellants.

________________________________________________________________

Argued telephonically January 23, 2014 Decided March 27, 2014

Before Judges Fisher, Koblitz and O'Connor.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-3975-10.

Craig M. Rothenberg argued the cause for appellant/cross-respondent (Rothenberg, Rubenstein, Berliner & Shinrod, LLC, attorneys; Mr. Rothenberg, of counsel and on the briefs).

James P. Lisovicz argued the cause for respondents/cross-appellants(Coughlin Duffy, L.L.P., attorneys; Mr. Lisovicz, of counsel and on the briefs; Timothy P. Smith and Brooks H. Leonard, on the briefs).

PER CURIAM

Plaintiff Thomas Hackett appeals from the June 4, 2012 grant of summary judgment to defendants Somerset Executive Square, Denholtz Associates and Steven Denholtz, as well as the August 3, 2012 order denying reconsideration. Plaintiff's complaint alleged that he suffered injuries when he hit his head on the ceiling when climbing a ladder to a water tower on the roof of a commercial building to repair the air conditioning. Because she determined that the dangerous condition, a small cut-out in the ceiling allowing access to the roof, was open and obvious, the motion judge determined that defendants had no duty to warn a business invitee such as plaintiff. Defendants cross-appealed the denial of summary judgment, arguing that they had no duty to warn an independent contractor of the risks inherent in the performance of his work. We affirm.

We discern the following facts from the record, viewed in a light most favorable to plaintiff as the non-moving party. Brill v. Guardian Life Ins. Co. of Am., 142 N.J.520, 540 (1995). At the time of the accident, plaintiff was a technician working for Statewide Conditioning Inc., which had a contract with defendants to perform HVAC repair work. On May 17, 2008, plaintiff was repairing the water tower located on the roof of a building. In order to access the roof, he had to climb a fixed ladder through a small "pass-through" opening in the ceiling that measured more than sixty inches in length. The fixed ladder's clearance was approximately nineteen inches between the edge of the ceiling opening and the ladder rungs. Plaintiff testified at his deposition that he had struggled through the narrow pass-through earlier that day. He also testified that some of his co-employees said that they "hat[ed] that hole." The third time he climbed the ladder that day, he hit his head on the ceiling, causing injuries.

The motion judge determined that defendants "had no duty to warn the plaintiff as a business invitee of an open and obvious condition. . . . [T]hey are only required to protect the plaintiff from conditions that are not obvious or visible upon ordinary observation."

We review the motion judge's grant of summary judgment de novo, and apply the same standard as the trial court. Lapidoth v. Telcordia Techs., Inc., 420 N.J. Super.411, 417 (App. Div.), certif. denied, 208 N.J. 600 (2011). We "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill, supra, 142 N.J. at 540; R. 4:46-2(c).

Summary judgment is generally appropriate when the hazardous nature of the condition is obvious.2 See e.g., Tighe v. Peterson, 175 N.J. 240, 241-42 (2002) (affirming the dismissal of a suit by a social guest, aware of the depths of the swimming pool, who was injured after diving into the shallow end); Matthews v. Univ. Loft Co., 387 N.J. Super. 349, 356 (App. Div.) (holding in a products liability case that the defendant had no duty to warn against the danger of falling from a loft bed it had manufactured, because the risks were "open and obvious"), certif. denied, 188 N.J.577 (2006); see alsoVega v. Piedilato, 154 N.J. 496, 499-500 (1998) (affirming the dismissal of a complaint where a child-trespasser suffered injuries while attempting to jump over an air shaft on the roof of a building).

Plaintiff demonstrated his awareness of the obvious hazard when he testified that he knew the pass-through was "a very restricted space. I believe we commented on it. It would be normal for a mechanic to complain going through something like that. . . . Like I said, it's pretty restrictive. I had to pull myself into the ladder and it's just not an easy hole to go through." Thus, we agree with the trial judge that the dangerous condition was apparent to plaintiff.

Defendants cross-appealed, maintaining that they are also entitled to summary judgment because "[a]landowner is under no duty to protect an employee of an independent contractor from the very hazard created by the doing of the contract work." Olivo v. Owens-Illinois, Inc., 186 N.J.394, 407 (2006) (quoting Muhammad v. N.J. Transit, 176 N.J.185, 198 (2001)). We need not reach this issue because we agree that defendants are entitled to summary judgment for the same reasons as those expressed by the trial court.

1 Steven Denholtz was improperly pleaded as "John" Denholtz.

2 Our courts have reduced the emphasis on the nature of the relationship between the parties, focusing also on other factors. Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 436-438 (1993).