DAVID WHITTEN et al. v. SYBRON CHEMICALS, INC.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0919-06T10919-06T1

DAVID WHITTEN and CHARMAINE

WHITTEN, his wife,

Plaintiffs-Appellants,

v.

SYBRON CHEMICALS, INC.,

Defendant-Respondent,

and

BAYER CHEMICALS, INC.,

Defendant.

________________________________

 

Submitted August 14, 2007 - Decided August 22, 2007

Before Judges S.L. Reisner and Lyons.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County,

L-1796-04.

Randy P. Catalano, attorney for appellants.

Coughlin Duffy, attorneys for respondent (Timothy I. Duffy, of counsel and on the brief; Joseph C. Amoroso, on the brief).

PER CURIAM

Plaintiffs David and Charmaine Whitten appeal from a trial court order dated September 13, 2006, dismissing their complaint against defendant Sybron Chemicals, Inc. (Sybron) for workplace injuries suffered by David Whitten.

I

Sybron, a chemical manufacturing company, hired Myers Maintenance (Myers) to work on Sybron's plant, including its tanks. Plaintiff, a foreman employed by Myers, was injured in a fall from a ladder while repairing a piece of machinery inside a sludge tank owned by Sybron. According to plaintiff, Sybron employees had pumped the sludge out of the tank twice before he started his work, but on the day he was scheduled to work in the tank, he noticed that there were still a few inches of sludge in the center of the tank. After asking the Sybron employees to remove the sludge, and being told that they had done the best they could and that they wanted to "go with it," plaintiff entered the tank and started work. According to plaintiff, he walked through the sludge before he started climbing the ladder to work on the machinery in the tank, and the sludge on his boots caused him to slip off the ladder.

The owner of Myers testified at his deposition that his company performed maintenance on a vast variety of different industries. This included "a lot of pipe work. We do wastewater treatment plants." His employees were given extensive safety training and were instructed that "the various plants have various hazards. . . . If you're working in a roofing manufacturer there is asphalt which is hot. If you're working in a chemical plant there are chemicals. Some could be acidic or caustic." The owner also instructed his employees that if they felt any workplace was unsafe in any respect they should report that to their foreman or directly to him. Sybron also gave a safety orientation to the employees of all independent contractors working at its plant, although its materials made clear that the independent contractors were responsible to ensure the safety of their own employees.

On the day of the accident, Whitten observed some sludge in the tank. Sybron employees told him that "This is the best we can get." He also admitted that he could have refused to go into the tank if he felt it was not safe; he could have insisted that Sybron clean out the tank completely if he felt it was not safe. However at a later point in his deposition he testified that he did not feel that he could refuse to do the work unless the tank was cleaned out, because he "was under the gun to get the job done." He said that he did not want his company to "lose the work" and he would not get paid for the day if he did not work. However, he also admitted that he did not recall anyone from Myers or from Sybron talking to him about "the timing of the completion of the job." He also admitted that he knew he had walked through sludge and that it was slippery, but he did not try to remove it from his boots or ask one of his fellow employees to go back to his work truck to get his spare pair of work boots before he started climbing the ladder.

Sybron's Safety Regulations for Outside Contractors provided that a confined space permit is "required when any worker must enter a confined space. Any confined space must be tested, cleaned, ventilated and purged." Sybron required Myers' employees to sign a confined space permit before working in the tank. Accordingly, before plaintiff entered the tank, plaintiff signed a permit attesting that the tank had been cleaned as much as possible.

Joseph Marzilli, a Sybron manager, testified that it was possible to remove all of the sludge from the tank, through a process lasting several days. However, he did not testify that Sybron agreed with Myers that there would be no sludge in the tank when Myers' employees were working in the tank. Nor was there testimony from any other witness that Sybron had agreed to completely remove all sludge from the tank before Myers' employees began working in it.

Relying on Wolczak v. National Electric Products Corp., 66 N.J. Super. 64 (App. Div. 1961), the trial judge concluded that since plaintiff worked for an independent contractor, and since the presence of sludge in the tank was a known and visible hazard which was "incidental to the very work [plaintiff was] hired to perform," Sybron had no duty to ensure plaintiff's safety with respect to that work place hazard.

II

Our review of a trial court's grant of summary judgment is de novo, using the Brill standard used by the trial court. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Applying that standard we conclude that there were no material facts in dispute and that summary judgment was properly granted under the applicable law.

As we indicated in Wolczak, a property owner is ordinarily not responsible for injuries to an independent contractor that stem from hazards incident to the work the contractor is performing.

The duty to provide a reasonably safe place in which to work is relative to the nature of the invited endeavor and does not entail the elimination of potential operational hazards which are obvious and visible to the invitee upon ordinary observation. This is especially so when the invitee is an experienced laborer hired either to correct the very danger present or to perform his tasks amidst the visible hazards. The 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 unimpaired line of holdings to the effect that 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.

[Id. at 75 (citations omitted).]

On the other hand, there are a series of cases, on which plaintiff relies, in which the landowner was held liable for injuries to an independent contractor. We conclude these cases are not on point. Perhaps the most telling difference between the cases cited by plaintiff and the instant case, is that in those cases the plaintiff worker was either injured by a concealed, unexpected, or not readily visible object or condition (e.g., a defective ladder, a protruding nail, or a support wire) that created a danger in the work area, or was injured by an affirmative, allegedly negligent act of the owner (e.g., waxing the floor around a work ladder). See Reiter v. Max Marx Color & Chem. Co., 67 N.J. Super. 410 (App. Div. 1960), aff'd, 35 N.J. 37 (1961) (defective ladder); Schwartz v. Zulka, 70 N.J. Super. 256 (App. Div. 1961), modified on other grounds sub nom., Schwartz v. N. Jersey Bldg. Contractors Corp., 38 N.J. 9 (1962) (protruding nail on roof); Zentz v. Toop, 92 N.J. Super. 105 (App. Div. 1966), aff'd o.b., 50 N.J. 250 (1967) (support wire); Hardman v. Ford Motor Co., 70 N.J. Super. 275 (App. Div. 1961), certif. denied, 36 N.J. 299 (1962) (waxed floor).

A review of the more recent cases cited by the parties does not change our conclusion. In Sanna v. National Sponge Co., 209 N.J. Super. 60 (App. Div. 1986), we held that a worker injured by a falling scaffold could maintain a lawsuit against the owner of the plant. The owner had knowingly permitted plaintiff to perform work on a makeshift scaffold when that may have violated OSHA standards, had removed a forklift needed to perform part of the work, had lent plaintiff's employee a ladder when the forklift was removed, and allegedly had failed to remove grease and slime from the platform on which the makeshift scaffold was standing, which may have caused one of the supports to slip. We concluded that this combination of facts was sufficient to distinguish Wolczak.

Likewise, in Moore v. Schering Plough, Inc., 328 N.J. Super. 300 (App. Div. 2000), we concluded that a security guard could maintain a lawsuit where he slipped on accumulated snow and ice on the owner's premises while walking his rounds. We concluded that the owner had a nondelegable duty to provide a safe premises and that slipping on snow and ice on a sidewalk was not one of the dangers inherent in the plaintiff's work as a security guard. We concluded that the plaintiff's situation was not, for example, analogous to that of a roofer falling through a defective roof which his employer had been hired to repair. Plaintiff relies on Sanna and Moore in contending that Sybron is liable for leaving some sludge in the tank.

On the other hand, Sybron argues, relying on Muhammad v. N.J. Transit, 176 N.J. 185 (2003), that working around sludge was a known hazard of the very work plaintiff was engaged to do and that Wolczak is directly on point. Muhammad concerned the Tort Claims Act and the question whether New Jersey Transit acted in a palpably unreasonable manner in failing to warn Muhammad, an employee of an independent contractor, that the roof from which he was removing asbestos was in a hazardous condition. In answering that question the Court looked to cases concerning the tort liability of private landowners. Relying on Wolczak, the Court concluded that New Jersey Transit fulfilled any duty it had by specifically warning Muhammad's employer, the independent contractor hired to perform the asbestos removal, as to the condition of the roof:

"[T]he general principle is that the 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," provided that the landowner does not retain control over the means and methods of the execution of the project. Gibilterra v. Rosemawr Homes, 19 N.J. 166, 170 (1955). In Wolczak v. National Electric Products Corp., 66 N.J. Super. 64, 71 (App. Div. 1961), the Appellate Division held that "[a]bsent control over the job location or direction of the manner in which the delegated tasks are carried out," the party contracting out the work, be it a landowner or a general contractor, "is not liable for injuries to employees of the []contractor resulting from either the condition to the premises or the manner in which the work is performed." Further, "[t]his immunity [is not] disturbed by the exercise of merely such general superintendence as is necessary to insure that the []contractor performs his agreement. . . ." Ibid. That is so especially when the contractor

is an experienced laborer hired either to correct the very danger present or to perform his tasks amidst the visible hazards. The 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 unimpaired line of holdings to the effect that 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.

[Id. at 198-99 (final citation omitted).]

A landowner's limited duty to employees of an independent contractor, whose work involves hazardous conditions, was recently re-confirmed in Olivo v Owens-Illinois, Inc., 186 N.J. 394, 406 (2006). ("Such duty has been held to have been satisfied by warning the independent contractor of the dangerous condition.").

We conclude that Wolczak and Muhammad are mostly closely on point here. In this case, plaintiff was a highly experienced foreman for Myers, a company that specialized in performing maintenance work for a variety of industries including wastewater treatment and chemical companies. The undisputed evidence is that Myers trained its employees with respect to the dangers inherent in working in its customers' various premises, including the dangers of the substances they might encounter. Plaintiff was assigned to work in a sludge tank. He was well aware that there was some sludge in the tank and that it was slippery. Nonetheless, according to his own testimony, he walked through the sludge and then climbed a ladder without stopping to clean his work boots. The sludge was not a hidden danger; plaintiff had ample warning of its presence. See Muhammad, supra, 176 N.J. at 199.

There is no evidence in the record to support a conclusion that Sybron's employees made the condition of the tank any more dangerous by their efforts to remove the sludge. Cf. Izhaky v. Jamesway Corp., 195 N.J. Super. 103, 107 (App. Div. 1984). Nor is there evidence that any negligence on Sybron's part was responsible for the alleged reappearance of sludge in the tank after it had been previously cleaned. Moreover, there is no evidence that Sybron had agreed with Myers that Sybron would remove all traces of sludge from the tank.

We conclude that under the facts of this case, the presence of some residual sludge in the tank was a hazard incidental to the work plaintiff was employed to perform. In fact, plaintiff admitted that he had taken a series of hepatitis shots before he started the work because he knew he would be exposed to sludge during the course of the work. Summary judgment was properly granted.

Affirmed.

 

Since the facts and legal discussion relate solely to the accident in which David Whitten was injured, we will refer to him as "plaintiff."

The owner testified that it was his company policy that his employees were to use Myers' company equipment and not the clients' equipment. This was consistent with Sybron's policy, which was not to lend equipment to its contractors. Plaintiff admitted that he knew it was Myers' policy not to borrow the client's equipment and that using Sybron's A-frame ladder, from which he fell, was not consistent with Myers' policy. Plaintiff initially claimed that Sybron was negligent in connection with the ladder or in failing to provide scaffolding, but has abandoned that contention on appeal, limiting his argument to the failure to remove the sludge.

The tank was an open container, some sixty feet wide and ten feet deep. Plaintiff testified that the sludge was in the middle of the tank, leaving a clear path about five to seven feet wide around the inner perimeter of the tank. According to plaintiff's evidence, a half-inch of rain fell on the day before plaintiff's accident. It is conceivable that an accumulation of water mixed with dried residue could have accounted for the material in the tank.

(continued)

(continued)

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A-0919-06T1

August 22, 2007