MARY O. BARILE v. 3M COMPANY, INC.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0092-11T2

A-0141-11T2

MARY O. BARILE, individually and

as Executrix of the Estate of her

Husband WALTER J. BARILE,

Plaintiff-Respondent/

Cross-Appellant,

v.

3M COMPANY, INC., a/k/a MINNESOTA

MINING 7 MANUFACTURING COMPANY,

ALFA LAVAL, INC., individually

and as successor to, and

previously known as Alfa-Laval

AB, Alfa-Laval Thermal Co., and

DeLaval Separator Company, ASBESTOS

CORPORATION LIMITED, individually

and as successor to Johnson's

Company, AMERICAN OPTICAL

CORPORATION, CBS CORPORATION, a

Delaware Corporation, f/k/a Viacom

Inc., f/k/a Westinghouse Electric

Corporation, CERTAINTEED CORPORATION,

formerly CertainTeed Products Corp.,

individually and as successor to

Keasbey & Mattison Company, CHICAGO

BRIDGE & IRON COMPANY, CLEAVER BROOKS,

INC., CRANE PUMPS AND SYSTEMS, INC.,

individually, and as successor to and

d/b/a Crane Valves, E.I. DUPONT DE

NEMOURS AND COMPANY, FLUOR DANIEL

SERVICES CORPORATION, GENERAL ELECTRIC

COMPANY, GOULDS PUMPS, INC., GRINNELL

CORPORATION, IMO INDUSTRIES INC.,

as successor to and formerly known

as DeLaval Turbine, Transamerica

DeLaval, and IMO DeLaval, ITT

INDUSTRIES INC., individually and

as successor to Bell & Gossett and

Grinnell Corporation, JOHN

W. WALLACE & CO., THE M.W. KELLOGG

COMPANY, RAPID AMERICAN CORP.,

individually and as successor to the

Celotex Corp., Philip Carey

Manufacturing Co., Philip Carey

Company, Inc., XPRU Corp., Briggs

Manufacturing Company, Panacon

Corporation, Smith & Kenzle, Inc.,

and Quebec Asbestos Corp., Ltd.,

RESCO HOLDINGS, INC., ROBERT A.

KEASBEY COMPANY, SANTA FE BRAUN,

INC., SCHIAVONE-BONOMO CORPORATION,

SEQUOIA VENTURES, individually and

as successor to Bechtel Corp.,

STATE INSULATION CORP., UNION

CARBIDE CORPORATION, Division of the Dow

Chemical Company, WESTINGHOUSE ELECTRIC

CORP.,

Defendants,

and

FOSTER WHEELER, L.L.C., f/k/a

Foster Wheeler Corporation,

Defendant-Appellant/

Cross-Respondent,

and

EXXON MOBIL, individually and as

successor-in-interest to Mobil

Oil Co., and as successor-in-

interest to Exxon Corporation,

Defendant-Respondent.

_____________________________________

 

 

A

September 4, 2013

rgued April 22, 2013 Decided

 

Before Judges Graves, Ashrafi and Espinosa.

 

On appeal from Superior Court of New Jersey,

Law Division, Middlesex County, Docket No.

L-7862-07.

 

Christopher J. Keale argued the cause for

appellant/cross-respondent Foster Wheeler, L.L.C. (Sedgwick L.L.P., attorneys; Michael A. Tanenbaum, of counsel and on the brief; Mr. Keale, on the brief).

 

Gonen Haklay argued the cause for respondent/cross-appellant Mary O. Barile (Cohen, Placitella & Roth, P.C., attorneys; Mr. Haklay, William L. Kuzmin and Rayna E. Kessler, on the brief).

 

Joseph P. LaSala argued the cause for

respondent Exxon Mobil (McElroy, Deutsch, Mulvaney & Carpenter, L.L.P., attorneys; Mr. LaSala, of counsel; Nancy McDonald, Michelle Hydrusko, and Gabriel Ferstendig, on the brief).

 

PER CURIAM

Following trial in this mesothelioma case, defendant Foster Wheeler, L.L.C., appeals from the jury's verdict awarding $1,776,892 in damages to plaintiff. The jury found Foster Wheeler strictly liable for failing to warn workers about the dangers of asbestos when they were repairing a large customized boiler Foster Wheeler had manufactured specifically for defendant Exxon Mobil and installed at Exxon's Bayway refinery. Plaintiff Mary O. Barile, individually and as executrix of the estate of her husband Walter J. Barile, filed a protective cross-appeal from rulings of the trial court dismissing or otherwise limiting her negligence claims against both Foster Wheeler and Exxon and denying her post-trial motion for a judgment notwithstanding the jury's verdict in favor of Exxon.1

We affirm in part and reverse in part. We conclude that the statute of repose, N.J.S.A. 2A:14-1.1(a), was applicable to all of plaintiff's claims against Foster Wheeler and barred the jury's verdict awarding damages, and we find no reversible error in the trial court's rulings with respect to Exxon.

I.

A.

The statute of repose bars any cause of action after ten years against a party that designed, planned, or constructed "an improvement to real property." It states in relevant part:

No action, whether in contract, in tort, or otherwise, to recover damages for any deficiency in the design, planning, surveying, supervision or construction of an improvement to real property, . . . nor any action for contribution or indemnity for damages sustained on account of such injury, shall be brought against any person performing or furnishing the design, planning, surveying, supervision of construction or construction of such improvement to real property, more than 10 years after the performance or furnishing of such services and construction. . . .

 

Here, Foster Wheeler's actions on which plaintiff's claims are based occurred in 1962 and 1963. Plaintiff's complaint was filed forty-four years later in 2007. The trial court applied the statute of repose to dismiss plaintiff's claims against Foster Wheeler for designing and constructing the boiler for the Bayway refinery but not her claim that Foster Wheeler was strictly liable under products liability law for the repair work it did on the boiler just a few months later. The repair work required that asbestos insulation that Foster Wheeler had not manufactured itself be removed from the boiler and then replaced with new asbestos insulation. On Foster Wheeler's appeal, we must decide whether the statute of repose applied to all of plaintiff's claims against Foster Wheeler. Plaintiff argues generally that the statute of repose should not be applied at all to a mesothelioma case such as this.

In plaintiff's cross-appeal, the main issue is whether the trial court erred in dismissing the negligence claims against both defendants under an independent contractor defense. See Muhammad v. N.J. Transit, 176 N.J. 185, 196 (2003); Bahrle v. Exxon Corp., 145 N.J. 144, 157 (1996). Plaintiff also contends that the jury's verdict in favor of Exxon as to a different facility, its Bayonne chemical manufacturing plant, was inconsistent and cannot stand.

We will recite the facts and procedural history of the case that are relevant to these issues.

B.

While employed as an asbestos worker for twenty-seven years, Walter Barile was exposed numerous times to airborne dust that contained asbestos fibers. Long after his retirement, in May 2007 at the age of seventy-one, Walter was diagnosed with inoperable malignant mesothelioma. Mesothelioma is a lethal cancer of the pleura surrounding the lungs. Malignant mesothelioma is caused by inhalation of asbestos fibers and can occur even with relatively low levels of exposure to asbestos. After the diagnosis, Walter received radiation and chemotherapy, but his cancer metastasized to his brain, and he experienced tremendous pain and weakness. Walter died on December 3, 2007.

Before his death, Walter and Mary Barile filed a complaint in September 2007 setting forth claims of strict liability and negligence against twenty-nine defendants. After Walter's death, Mary filed an amended complaint adding a wrongful death claim. In the course of the litigation, Mary settled claims against some of the defendants, and claims against other defendants were dismissed by the court. Trial of plaintiff's complaint against the two remaining defendants, Foster Wheeler and Exxon, was held over six weeks in June and July 2011.

Plaintiff alleged that Walter had been exposed to asbestos while working at two sites owned by Exxon, one of which also involved Foster Wheeler: (1) at Exxon's Bayway refinery in Linden, where Foster Wheeler installed and then repaired in 1962 and 1963 a custom-built boiler it had manufactured specifically for Exxon; and (2) at Exxon's chemical manufacturing facility in Bayonne, where asbestos piping insulation was removed and replaced in about 1963.2 Following several rulings of the trial court that are contested on appeal, a jury determined that Exxon was not liable for Walter's illness and death, but that Foster Wheeler was strictly liable because of asbestos removal and reinstallation work that Walter had done in 1962 and 1963 on the Foster Wheeler boiler at Exxon's Bayway facility.

The evidence showed that, in March 1961, Exxon and Foster Wheeler entered into a contract priced at $1,579,870 for the design, construction, and installation of a forty-foot-high customized waste heat boiler that met certain performance requirements of Exxon. Foster Wheeler's specifications for the boiler required that its side walls and floor be insulated with non-asbestos mineral wool blanket and that the boiler's drum and roof be insulated with asbestos-containing insulating blocks.

Foster Wheeler itself did not manufacture asbestos or non-asbestos insulation. It entered into a subcontract with Philip Carey Manufacturing Company to supply and install all the insulation on the boiler. Philip Carey manufactured and supplied asbestos insulation products and also had a contracting unit available to work on jobs like the Bayway boiler. Foster Wheeler gave Philip Carey the specifications it had prepared for the insulation work, and Philip Carey was free to choose from among the commercially-available insulation products on the market that met those specifications. The Bayway boiler utilized only insulation of stock sizes and types that was regularly produced by a number of manufacturers and was readily available "off-the-shelf."

Foster Wheeler completed the construction and installation of the Bayway boiler in September 1962. Exxon soon reported that it was experiencing problems with the operation of the boiler, and Foster Wheeler agreed to make major repairs in accordance with the boiler's warranty. The repairs required the removal and replacement of all the insulation. Foster Wheeler again entered into a subcontract with Philip Carey for the removal of the insulation it had installed a few months earlier, and for the supply and installation of new insulation once the repairs to the boiler had been completed.

Philip Carey hired union insulators from Asbestos Workers Local 32 to perform the work. The removal and reinstallation work was performed from November 1962 to either February or August 1963, depending on Foster Wheeler's or plaintiff's differing versions of the work schedule. Among the union insulators who performed the work were twenty-seven-year-old Walter Barile, who was working as an apprentice at the time, and his co-worker, John Swenson.

According to Swenson, he and Walter worked side-by-side using crowbars, scrapers, and even their hands to rip off both the mineral blanket insulation and the asbestos block insulation.3 Their work produced clouds of dust, which they could not avoid breathing. Pieces of insulation would rain down on their heads. The workers dry swept the area several times each day to clean up the several inches of dust and debris that would collect on the ground, and in doing so, caused dust to go back up into the air. Swenson testified that he and Walter were never given face masks or respirators, and no attempt was made to wet down the insulation to prevent airborne dust as it was being removed. Also, the workers did not have the opportunity to shower and change their clothes at the end of the day.

A Phillip Carey truck delivered new insulation to the site. Much of the standard-size asbestos block used for replacement of the insulation had to be cut with saws and then fitted onto the boiler, a process which again generated dust. Walter and Swenson were also exposed to the dust generated by other workers who were working above and around them, as well as to the dust created when they mixed powdered asbestos cement with water. According to Swenson, no one from Exxon or Foster Wheeler ever expressed disapproval of the way the rip-out or the installation work was performed. No one ever advised them that asbestos was dangerous. Exxon workers were in the area but not directly involved in the project. Swenson took all his orders from a Philip Carey foreman.

Swenson also testified that, during a six to eight month period about the same time as the Bayway job, he and Walter worked intermittently installing asbestos-containing sectional pipe covering at Exxon's chemical manufacturing plant in Bayonne. Once again both men were employed directly by Philip Carey, which apparently had a contract with Exxon for the job. The Bayonne job also required that they use saws to cut and fit the sections of pipe covering to the pipes themselves. They were exposed to the dust they themselves generated, as well as to the dust generated by other workers performing the same task above and around them. Swenson insisted that Exxon did not warn the insulators at the Bayonne job site about the dangers associated with asbestos or implement any practices that would have lessened their exposure. Although masks were available at Bayonne, no one from Exxon ever counseled the insulators regarding the need for these masks.

Detailed expert testimony at trial pertained to historical knowledge of the dangers of asbestos and the level of exposure that was required to cause mesothelioma and other diseases. Since that testimony is not relevant to the issues upon which we decide this appeal, we will not repeat it here. In brief, the parties disputed whether Foster Wheeler and Exxon should have known in 1962 and 1963 that exposure of insulation workers to asbestos dust was extremely dangerous and might cause mesothelioma and other ailments.

Foster Wheeler's corporate designee, Richard Johnson, a ceramic engineer, testified that it was Philip Carey's responsibility to warn the insulators at Bayway of the risks of asbestos. He had no reason to think that Foster Wheeler provided any warnings, but Foster Wheeler had no need to warn its own employees of the risks of asbestos exposure because its business operations required only the infrequent use of asbestos. Only after a 1968 report was published on the dangers of low levels of exposure to asbestos did Foster Wheeler have reason to understand the risks to insulators who were working with asbestos products.

Peter DeFao, Exxon's corporate representative and a former industrial hygienist for the company, testified that outside contractors hired to work at Exxon's facilities had to follow the same safety guidelines as Exxon's own employees. Exxon distributed its safety manual to the supervisors of any outside workers and expected them to share this information with their workers. In particular, Exxon would have made the supervisors aware of Exxon's established guidelines for working with asbestos. It was not Exxon's responsibility continuously to monitor its outside contractors because these hired workers had their own supervisors and knew what the hazards were. However, if an Exxon employee observed a safety violation, the worker was expected to report it to a supervisor, and Exxon reserved the right to shut a job down in the event of chronic safety problems.

After the evidence was presented at the trial, the court granted a directed verdict and dismissed plaintiff's claims against Exxon arising from Walter's exposure at the Bayway facility. The court ruled that plaintiff had not presented sufficient evidence to refute Exxon's defense that it was the task of Philip Carey as an independent contractor rather than Exxon to determine the safety precautions needed for the asbestos work and to warn its own employees of the dangers of breathing asbestos fibers. The court denied Exxon's similar motion to dismiss plaintiff's claims arising from the pipe work at the Bayonne chemical plant, finding that issues of fact had been presented regarding Exxon's role in controlling and supervising that job. Regarding the Bayonne facility, the jury found, in effect, that the independent contractor defense was not available to Exxon but that plaintiff had not proven Exxon's negligence in providing a hazardous worksite.

As to Foster Wheeler, the court ruled before and during trial that plaintiff's claim was limited to Foster Wheeler's role in repairing the Bayway refinery boiler after it was installed. Claims based on the earlier design, construction, and installation of the boiler were barred by the statute of repose. Furthermore, the court dismissed plaintiff's negligence claims against Foster Wheeler based on the independent contractor defense, namely, that Philip Carey was responsible for the safety of its own workers who removed and replaced the asbestos insulation during the boiler repair work. The court refused to apply the independent contractor defense to plaintiff's claims of strict liability. It allowed the jury to consider only a strict liability claim against Foster Wheeler based on allegations that the boiler as repaired in 1962-63 was a defective product because of the risks of asbestos insulation that was a component of the boiler and because of the absence of any warning to those exposed to the asbestos.

The jury found: (1) plaintiff had established that Foster Wheeler's failure to provide a warning "was a proximate cause" of Walter's injuries and death; (2) plaintiff had proven that Walter's exposure to asbestos from the Foster Wheeler boiler at the Bayway facility was a substantial contributing cause of his mesothelioma; and (3) Foster Wheeler had not proven that the asbestos-containing products installed on the Foster Wheeler boiler were "integral parts of the boiler." The jury found Foster Wheeler one hundred percent liable for Walter's illness and death, and it awarded $1,776,812 in damages.4 The court subsequently granted Foster Wheeler's motion for a directed verdict on plaintiff's punitive damages claim.

After the trial, the court denied plaintiff's motion for judgment notwithstanding the verdict with respect to the jury's finding of no liability as to Exxon. These appeals followed, and we consolidated them for purposes of argument and decision.

II.

Whether a statute of repose applies in these circumstances is a matter of statutory interpretation and therefore a legal question subject to our plenary review. See McGovern v. Rutgers, the State Univ. of N.J., 211 N.J. 94, 107-08 (2012); Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

We conclude that the claims against Foster Wheeler should have been dismissed because Foster Wheeler designed and constructed an improvement to real property, and the statute of repose bars any claim that was not filed within ten years of completion of its work in 1963. Although manufacturers and distributors of products, including building materials, are not protected by the statute of repose, Foster Wheeler was neither a manufacturer nor a distributor of asbestos building materials that were used to design and construct its boiler. The use of a defective product among the materials used to design and construct an improvement to real property does not circumvent application of the statute of repose to a designer or builder of the improvement, including on a claim of strict liability.

Plaintiff relies on Beshada v. Johns-Manville Prods. Corp., 90 N.J. 191 (1982), in support of its contention that Foster Wheeler was strictly liable for selling to Exxon at a profit the asbestos insulation that was used as a component of the boiler both in its original installation and in the repair work. See also Promaulayko v. Johns Manville Sales Corp., 116 N.J. 505, 511 (1989) ("Although a distributor and a retailer may be innocent conduits in the sale of the defective product, they remain liable to the injured party."); Michalko v. Cook Color & Chem. Co., 91 N.J. 386, 394 (1982) ("Under New Jersey law, manufacturers, as well as all subsequent parties in the chain of distribution, are strictly liable for damages caused by defectively designed products."). Plaintiff argues that the insulation material that was used for the boiler was a standardized product that could be purchased "off the shelf" and not a specially-designed component of the boiler. In addition, the jury found that the asbestos insulation was not an integrated component of the specially-designed boiler. Consequently, argues plaintiff, Foster Wheeler could be held strictly liable as a seller in the chain of distribution of a dangerous product that was defective because adequate warnings were not given, and its use of the asbestos insulation products was not subject to the statute of repose.

Strict liability is imposed "without any consideration of the defendant's intent to commit the act or cause the injury." Fischer v. Johns-Manville Corp., 103 N.J. 643, 652-53 (1986). In a case of strict products liability, the focus is on the safety of the product, not the reasonableness of a defendant's conduct. Feldman v. Lederle Labs., 97 N.J. 429, 450 (1984); Suter v. San Angelo Foundry & Mach. Co., 81 N.J. 150, 169 (1979). If at the time a manufacturer puts a product into the stream of commerce, the product is not "reasonably fit, suitable and safe for its intended or reasonably foreseeable purposes," and its expected users are injured as a result, the manufacturer, as the one who profited from the sale of the product, will be held responsible for the ensuing damages. Suter, supra, 81 N.J. at 169, 173; accord Beshada, supra, 90 N.J. at 209.

To prevail in a strict liability case, the plaintiff must prove: (1) the product was defective; (2) the defect existed when the product left the hands of the defendant; and (3) the defect caused the injury to a reasonably foreseeable user. Jurado v. Western Gear Works, 131 N.J. 375, 385 (1993). A failure to warn, or to warn properly, can constitute a defect in a product sufficient to support an action in strict liability. Feldman, supra, 97 N.J. at 449; Freund v. Cellofilm Props., Inc., 87 N.J. 229, 236-41 (1981).

A strict liability defendant is "assumed to know of the dangerous propensity of the product." Feldman, supra, 97 N.J. at 450; accord Beshada, supra, 90 N.J. at 198. Usually the knowledge presumed is that which is reasonably available or obtainable, and the defendant may rebut this presumption by presenting a state-of-the art defense, i.e., that the knowledge was not obtainable at the relevant time period and that it therefore lacked actual or constructive knowledge of the defect. Feldman, supra, 97 N.J. at 454-56. However, in a failure-to-warn case based on injury caused by asbestos, a defendant is precluded, and a plaintiff is relieved, from introducing "evidence relating to a defendant's actual knowledge or the state of knowledge in the asbestos field at the time of distribution." Fischer, supra, 103 N.J. at 656; accord Becker v. Baron Bros., 138 N.J. 145, 153, 163 (1994). Thus, in this sub-category of failure-to-warn cases, the manufacturer is presumed to have known all its product's harmful propensities whether or not it actually knew or reasonably should have known them. Fischer, supra, 103 N.J. at 655-56.

The trial court permitted plaintiff's strict liability claim to be decided by the jury on a theory that Foster Wheeler had manufactured and sold a defective product to Exxon, which caused Walter Barile's illness and death. The court's several rulings in that regard were imprecise as to whether the product that was defective was the boiler or the asbestos insulation.

Foster Wheeler, however, was neither the manufacturer nor the distributor of standard asbestos insulation products in the sense of the cases plaintiff relies upon. Foster Wheeler "sold" the asbestos insulation to Exxon only in the same sense that any builder or contractor "sells" materials that are utilized in its construction work. Plaintiff has not provided legal authority for holding a builder or other contractor that uses standardized materials in its work strictly liable for a defect in those materials and products that were manufactured and distributed by others. Lumber, roofing materials, windows and doors, stairs, electrical and plumbing equipment, and similar materials may be used by a contractor and the cost charged to the owner, including at a markup that constitutes a profit to the contractor. We need not decide in this case whether the use of the materials by a contractor makes the contractor a distributor or seller of those materials and, therefore, strictly liable for any defect in the products. We note that if such "selling" of the product subjects the builder or contractor to strict liability under products liability law, then every carpenter, plumber, electrician, painter, and other subcontractor that uses materials to perform its work would be deemed a distributor and seller of the materials it must use and subject to a cause of action for strict liability under products liability law.

Foster Wheeler manufactured, sold, installed, and repaired a boiler that had asbestos insulation as a component part. Strict liability could be imposed because a component part of the finished product, the boiler, was defective and dangerous. See Macias v. Saberhagen Holdings, 282 P.3d 1069, 1075 (Wash. 2012); Braaten v. Saberhagen Holdings, 198 P.3d 493, 498 n.7 (Wash. 2008); Walton v. Harnischfeger, 796 S.W.2d 225, 227 (Tex. App. 1990). Even a seller of a completed home that is deemed to be a standardized product can be held strictly liable for the defective condition of a component part of the home. See Schipper v. Levitt & Sons, Inc., 44 N.J. 70, 82 (1965).

However, the statute of repose, N.J.S.A. 2A:14-1.1(a), still applies to bar any cause of action brought against such a builder-seller if an action is not filed within ten years of completion of the improvement to real property. O'Connor v. Altus, 67 N.J. 106, 119 (1975). The case law that holds a manufacturer of a product with a defective component strictly liable is not determinative of whether the statute of repose bars the cause of action. The question is whether the manufacturer and seller of the product is nevertheless protected by the statute of repose because the manufactured product is actually an improvement to real property in the circumstances of a particular case.

In Dziewiecki v. Bakula, 180 N.J. 528, 532-33 (2004), the Court held that the statute of repose, N.J.S.A. 2A:14-1.1(a), does not apply to a manufacturer of a standardized product used in construction. The statute protects "contractors, builders, planners, and designers." Russo Farms, Inc. v. Vineland Bd. of Educ., 144 N.J. 84, 116 (1996); Horosz v. Alps Estates, Inc., 136 N.J. 124, 128 (1994); Rosenberg v. Town of N. Bergen, 61 N.J. 190, 201 (1972). It does not protect manufacturers or sellers of materials and products used in construction. Diana v. Russo Dev. Corp.. 352 N.J. Super. 146, 151 (App. Div. 2002). The fact that the manufacturer "designed" a "standardized" product that was installed at a construction project does not constitute activity that is covered by the statute of repose. Dziewiecki, supra, 180 N.J. at 532-33; Rolnick v. Gilson & Sons, Inc., 260 N.J. Super. 564, 567-68 (App. Div. 1992).

There is no question in this case, however, that the forty-foot customized boiler built to Exxon's specifications for the Bayway refinery was not a standardized product that Foster Wheeler sold to Exxon but an improvement to Exxon's real property. Cf. Ebert v. S. Jersey Gas Co., 157 N.J. 135, 140 (1999) (underground natural gas lines were an improvement to real property); Diana, supra, 352 N.J. Super. at 152-58 (permanently attached ladder providing access to roof was an improvement to property, although ladder could be purchased in the same form for other uses); Brown v. Jersey Central Power & Light Co., 163 N.J.Super. 179, 192, 195-96 (App. Div. 1978) (a free-standing electrical transfer switch was an improvement to real property), certif. denied, 79 N.J. 489 (1979); Luzadder v. Despatch Oven Co., 651 F. Supp. 239, 243-44 (W.D. Pa. 1986) (industrial oven in plant was an improvement to the property), rev d in part on other grounds, 834 F.2d 355 (3d Cir. 1987), cert. denied sub nom. Honeywell, Inc. v. Luzadder, 485 U.S. 1035, 108 S. Ct. 1595, 99 L. Ed. 2d 909 (1988); Gnall v. Ill. Water Treatment Co., 640 F. Supp. 815, 817-18 (M.D. Pa. 1986) (water treatment system installed in plant was an improvement to real property). But cf. Rolnick, supra, 260 N.J. Super. at 567-68 (standard attic fan installed by seller of home was not covered by statute of repose as an improvement to real property).

The trial court recognized that the boiler was an improvement to the Bayway property, and so, it granted Foster Wheeler's motion to bar plaintiff's claims based on the design, construction, and original installation of the boiler. However, the court mistakenly viewed the repair work that was done just a few months after installation as separate from the design and construction work of Foster Wheeler. Follow-up repairs by a contractor or builder can still be subject to the statute of repose. See Horosz, supra, 136 N.J. at 129. In effect, the installation of the boiler was not complete until Foster Wheeler returned to make the repairs that were necessary so that the boiler would work as promised. Contractors routinely return to job sites after initial completion of the construction work to make repairs or adjustments to their work. The rip-out and replacement of the asbestos just a few months after installation was part of the construction of the original improvement to Exxon's property. Even if the later repair work is viewed as a separate job from the original installation, it still involved a specially designed and constructed improvement to the property, and the later occurrence of the repair work merely triggered anew the ten-year period under the statute of repose. Ibid.

Also, in Dziewiecki, supra, 180 N.J. at 533, the Court distinguished between manufacturers and distributors that sell, design, or manufacture standardized products and those that also install their standardized products according to specialized plans as part of an improvement to real property. The Court stated that, when a defendant wears "two hats," namely, as both the manufacturer of a standardized product and its installer according to a specific design for the real property and the injury is attributable to both functions, "the responsibility should be allocated between the two" roles. Ibid.

Here, the primary role of Foster Wheeler under the Exxon contract was to design, construct, and install a boiler, not to sell the asbestos insulation that was used in the boiler. Foster Wheeler neither manufactured the asbestos insulation nor was a distributor of that insulation. It was a designer and builder of the boiler that had a full defense based on the statute of repose. Plaintiff's claims against Foster Wheeler should have been dismissed because they were not filed within ten years of completion of its work.

Plaintiff argues that the statute of repose was not intended to apply to a mesothelioma case; that Walter Barile contracted the disease within ten years of completion of Foster Wheeler's work; that his exposure to asbestos included doing demolition work, not just construction work; and that the Legislature did not intend the statute of repose to apply retroactively to events that pre-dated its adoption in 1967. We reject these contentions and do not view them as warranting discussion in a written opinion. R. 2:11-3(e)(1)(E).

III.

Because we reverse the jury's verdict as to plaintiff's claims against Foster Wheeler, we must address the cross-appeal from the trial court's rulings and the jury's favorable verdict for Exxon.

A landowner such as Exxon that has engaged an independent contractor to do work upon its premises has a duty to provide a reasonably safe workplace for an employee of that independent contractor. Olivo v. Ownes-Illinois, Inc., 186 N.J. 394, 406 (2006). This duty is non-delegable. Sonna v. Nat'l Sponge Co., 209 N.J. Super. 60, 67 (App. Div. 1986).

However, the duty "is relative to the nature of the invited endeavor," ibid., and "does not relate to known hazards which are part of or incidental to the very work the contractor was hired to perform," Muhammad, supra, 176 N.J. at 199 (quoting Wolczak v. Nat'l Elec. Prods. Corp., 66 N.J. Super. 64, 75 (App. Div. 1961)). A landowner is not obligated to protect an employee of an independent contractor from the "very hazard created by the doing of the contract work." Id. at 198 (quoting Gibilterra v. Rosemawr Homes, 19 N.J. 166, 170 (1955)). This exception to the landowner's duty, for a hazard incident to the work, exists because "[t]he 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." Id. at 199 (quoting Wolczak, supra, 66 N.J. Super. at 75). But the exception to a landowner's duty we have described only applies when "the landowner does not retain control over the means and methods of the execution of the project." Id. at 198.

Plaintiff contends she presented evidence that Exxon was in control of the Bayway worksite at the time the Foster Wheeler boiler was being repaired, and so, the trial judge erred in granting to Exxon a directed verdict on those claims. Plaintiff points to provisions of the contract between Foster Wheeler and Exxon in support of her argument, but she cites no authority indicating that contract terms alone can suffice to demonstrate the landowner's control of the worksite. The contractual provisions may have reserved Exxon's rights and were relevant evidence, but they did not prove that Exxon actually controlled the means and methods of the work. We find no error in the trial court's conclusion, based on the evidence actually presented at the trial, that plaintiff did not produce sufficient evidence for a rational jury to conclude that Exxon controlled the means and methods of the work at its Bayway refinery when the boiler was installed and later repaired. See, e.g., Frugis v. Bracigliano, 177 N.J. 250, 269-70 (2003); Dolson v. Anastasia, 55 N.J. 2, 5-6 (1969).

Plaintiff also contends that the trial court erred in denying her motion for judgment notwithstanding the verdict on the Bayonne site based upon the jury's answers to special interrogatories on the verdict sheet. The jury found that (1) Walter "was exposed to asbestos at the Exxon Bayonne facility," and (2) that plaintiff had proven that "Exxon controlled the means and methods of or actively interfered with the insulation work being performed" by Walter's employers, but that (3) plaintiff had not proven that Exxon "breached a duty to provide a safe place to work to" Walter at the Bayonne facility. Plaintiff contends these findings are inconsistent and indicate jury confusion about the applicable law.

"In reviewing whether the trial court properly denied [a] motion for a judgment notwithstanding the verdict, R. 4:40-2, we 'must accept as true all evidence supporting the position of the party defending against the motion and must accord that party the benefit of all legitimate inferences which can be deduced [from the evidence].'" Besler v. Bd. of Educ. of W. Windsor-Plainsboro Reg'l Sch. Dist., 201 N.J. 544, 572 (2010) (quoting Lewis v. Am. Cyanamid Co., 155 N.J. 544, 567 (1998)). The evidence showed that masks were available for asbestos workers to use at the Bayonne facility and that Exxon provided its safety manual to Philip Carey supervisors. As the trial court determined in denying plaintiff's post-trial motion, the jury could rationally have concluded that plaintiff did not prove Exxon was negligent with respect to safety precautions employed at the Bayonne facility.

Affirmed in part, reversed in part.

1 Plaintiff states that we need not address the cross-appeal unless we reverse the verdict the jury awarded in her favor against Foster Wheeler.

2 The complaint also alleged that Walter had been exposed to asbestos while working on a Foster Wheeler boiler at PSE&G's power station in Jersey City, but claims pertaining to that facility were dismissed at trial. Plaintiff has not appealed from that ruling, and her brief contains no argument pertaining to the PSE&G facility.

3 In a de bene esse deposition, Walter testified generally that he was exposed to asbestos dust while working with Swenson at Bayway and later at Exxon's chemical manufacturing facility in Bayonne.

4 The jury was also asked to determine whether Exxon or Foster Wheeler had prevailed on their cross-claims against two settling, empty-chair defendants. The jury rejected the cross-claims.