EDUARDO COSTA v. SAID BAHAMMOU

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6235-07T16235-07T1

EDUARDO COSTA,

Plaintiff-Appellant,

v.

SAID BAHAMMOU and RACHEL SCROGGINS,

Defendants-Respondents.

___________________________________

 

Argued September 2, 2009 - Decided

Before Judges Payne and Waugh.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-3816-05.

Nicholas J. Leonardis argued the cause for appellant (Stathis & Leonardis, LLC, attorneys; Mr. Leonardis, on the brief).

John R. Knodel argued the cause for respondents (Methfessel & Werbel, attorneys; Mr. Knodel, on the brief).

PER CURIAM

Plaintiff Eduardo Costa appeals the dismissal of his personal injury action at the end of the trial testimony pursuant to Rule 4:40-1. We reverse and remand for trial in conformance with the legal principles discussed below.

I.

Because a court considering a motion for judgment pursuant to Rule 4:40-1 "must accept as true all the evidence which supports the position of the non-moving party, according him or her the benefit of all legitimate inferences," RSB Laboratory Services, Inc. v. BSI, Corp., 368 N.J. Super. 540, 555 (App. Div. 2004), we set forth the facts adduced at trial in the form most favorable to Costa. We note, however, that defendant Said Bahammou and his wife, defendant Rachel Scroggins, gave a very different version of the relevant events during their trial testimony.

In 2003, Costa was employed by Nimco Construction as a mason. On behalf of Nimco, he was engaged in removing a cement sidewalk and replacing it with brick pavers in Elizabeth, adjacent to the office where Bahammou was employed. Costa testified that Bahammou approached him and asked what he was doing. After hearing Costa's response, Bahammou told Costa he might have "jobs to be done" at his home in Califon. Costa subsequently went to Bahammou's home and met with him and Scroggins. Bahammou engaged Costa to replace a walkway on his property with brick pavers, like the ones used on the project in Elizabeth. Costa testified that neither Bahammou nor Scroggins supervised his construction of the walkway.

After the sidewalk was completed, Bahammou asked Costa about installing a new driveway to replace an existing gravel one. Bahammou had marked out the path for the proposed driveway with orange spray paint. There was a large tree in the path marked out for the driveway. Costa told Bahammou that he had no experience in tree removal and suggested that he get a professional to do that part of the job. No agreement was reached at that time.

Bahammou approached Costa on another occasion in Elizabeth and told him that, if he wanted to do the driveway, he would also have to cut down the tree. Costa described the conversation as continuing as follows:

And I told him I'm -- I'm not doing [it]. And he said, he's gonna -- don't worry. I provide all the tools and all safe -- safety to -- to cut the tree. Don't -- don't worry about.

And I say okay, let me think. Because I'm not sure; I [don't] want to do it. Okay. But he -- he -- he told me, okay, think and I later talk to you about it. And I said okay. After that, he come -- he comes and he asked me what do you want to do? Okay, if you get all -- if you provide all the tools, because I don't got any ladders. I don't got any chainsaws, I don't got anything. I go -- I go to your house and cut them.

Costa went to Bahammou's house on Saturday, September 20, 2003. He brought no tools with him for working on the tree. When he arrived, he saw only a ladder and a chainsaw. Costa placed the ladder against the tree in preparation for cutting off a limb. When he had almost cut the branch through with the chainsaw, it started to crack and then fell, resulting in the ladder moving, but not falling. That movement of the ladder caused Costa to lose his balance, fall off of the ladder, and hit the ground, resulting in a broken leg. Although Bahammou had apparently taught or told Costa how to start the chainsaw at some point, neither defendant was present at the time of the accident.

II.

As a general matter, landowners who invite independent contractors to come on their property are "under a duty to exercise ordinary care to render reasonably safe the areas in which [the contractor] might reasonably expect [] to be working." Sanna v. Nat'l Sponge Co., 209 N.J. Super. 60, 66 (App. Div. 1986). This general duty, which is non-delegable, requires the landowner to make "reasonable inspection to discover defective and hazardous conditions." Ibid. In addition, the "obligation upon the landowner of either making the condition of his premises reasonably safe or giving adequate warning imposes upon him the duty to furnish such safeguards as may reasonably be necessary." Ibid. See also Zentz v. Toop, 92 N.J. Super. 105, 113 (App. Div. 1966), aff'd o.b., 50 N.J. 250 (1967).

In Zentz, supra, 92 N.J. Super. at 113, we quoted and relied upon the then recently amended version of Restatement (Second) of Torts 343 (1965) as follows:

A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he

(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and

 
(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
 
(c) fails to exercise reasonable care to protect them against the danger.

We also noted that the quoted section must be read together with section 343A(1), which deals with conditions known to the invitee or are obvious to him, and reads:

A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.

[Zentz, supra, 92 N.J. Super. at 113 (quoting Restatement (Second) of Torts 343A(1) (1965)).]

These obligations, however, are "relative to the nature of the invited endeavor," Sanna, supra, 209 N.J. Super. at 67, and do not necessarily encompass a duty to eliminate obvious and visible operational hazards, which are part of or incidental to the very work the contractor was hired to perform. Muhammad v. New Jersey Transit, 176 N.J. 185, 198 (2003). See also Gibilterra v. Rosemawr Homes, 19 N.J. 166, 170 (1955); Wolczak v. Nat'l Elec. Prods. Corp., 66 N.J. Super. 64, 75 (App. Div. 1961).

In considering the extent to which a landowner bears responsibility for personal injuries to a contractor or its employees in their performance of the work for which they were hired, a court may also consider whether the landowner exercised control over the job location or directed the manner in which the delegated tasks were to be carried out. Absent a sufficient degree of control or supervision, a landowner will not generally be liable for injuries "resulting from either the condition [of] the premises or the manner in which the work is performed." Muhammad, supra, 176 N.J. at 198-99 (quoting Wolczak, supra, 66 N.J. Super. at 71). It has also been held that this freedom from liability is not disturbed by the landowner's exercise of general superintendence as is necessary to ensure that the contractor performs the agreed work, id. at 199, because the landowner is entitled, without concern for the imposition of liability, to hire an experienced worker

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.

[Wolczak, supra, 66 N.J. Super. at 75 (quoted with approval in Muhammad, supra, 176 N.J. at 199) (emphasis added).]

See also Accardi v. Enviro-Pak Sys. Co., Inc., 317 N.J. Super. 457, 463 (App. Div.), certif. denied, 158 N.J. 685 (1999); Dawson v. Bunker Hill Plaza Assocs., 289 N.J. Super. 309, 318 (App. Div.), certif. denied, 146 N.J. 569 (1996); Sanna, supra, 209 N.J. Super. at 67.

III.

Viewing, as we must, the facts and the reasonable inferences to be drawn from them in Costa's favor, Sanna, supra, 209 N.J. Super. at 67-68, we conclude that the jury should have been permitted to determine the issue of the defendants' liability to Costa.

Had Costa been experienced in tree removal, there would likely have been no basis for liability. However, a jury could find from Costa's testimony that Bahammou was well aware that Costa had no experience cutting down trees and was, in fact, quite apprehensive about doing so. Consequently, the defendants cannot avail themselves of the presumption 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" and the limitations on liability that flow from it. Wolczak, supra, 66 N.J. Super. at 75 (quoted with approval in Muhammad, supra, 176 N.J. at 199).

A jury could also find that Costa only agreed to do the tree work, albeit with great reluctance, after Bahammou promised to "provide all the tools and all [] safety [] to cut the tree." Bahammou's promise to provide tools and "safety" is, in our view, functionally akin to retention of a sufficient level of control over the work to impose liability, even for the hazard created by the work itself. Olivio v. Owens-Illinois, Inc., 186 N.J. 394, 407 (2006); Accardi, supra, 317 N.J. Super. at 463. In Sanna, supra, 209 N.J. Super. at 68, we held that, under the circumstances of that case, "a jury could find that defendant exercised the requisite control over the jobsite to create a liability exposure" by providing ladders and a scaffold to the contractors.

Finally, a jury could find that the defendants failed to "provide all the tools and all [] safety [] to cut the tree" by leaving only the ladder and the chainsaw at the work site. A jury could reasonably conclude the defendants' failure to provide any other safety equipment or personal assistance for purposes of safety violated their "duty to furnish such safeguards as may reasonably be necessary." Id. at 66. Of course, whether Costa was comparatively negligent by proceeding alone and without safety equipment would also be a question for the jury on retrial.

Consequently, we reverse the judgment in favor of the defendants and remand for trial.

Reversed and remanded.

We note that Scroggins also uses her husband's last name, but we refer to her by the name under which she was sued for the sake of convenience.

Costa maintains in his appellate brief that Bahammou promised to supply him with a safety belt and rope, citing to his own discovery deposition. We see no such specific assertion in Costa's trial testimony, but note the reference to "all safe -- safety to -- to cut the tree," quoted above.

The parties and the trial judge relied on Majestic Realty Associates, Inc. v. Toti Contracting Co., 30 N.J. 425 (1959), and cases that follow from it. While these cases involve many similar concepts, they are not truly on point because they address the vicarious liability of the landowner to third-parties who are injured by actions of the contractor or its employees. See Piro v. Public Service Electric & Gas Co., 103 N.J. Super. 456, 464 (App. Div.), aff'd, 53 N.J. 7 (1968).

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A-6235-07T1

 

September 17, 2009