KENNETH PISIECZKO v. THE CHILDREN'S HOSPITAL OF PHILADELPHIA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

KENNETH PISIECZKO,

Plaintiff-Appellant,

v.

THE CHILDREN'S HOSPITAL OF

PHILADELPHIA and ALL GREEN

TURF MANAGEMENT CORP.,

Defendants-Respondents.

________________________________

January 6, 2017

Submitted December 13, 2016 Decided

Before Judges Fasciale and Gilson.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-4715-13.

The Ferrara Law Firm, L.L.C. and Alvin F. de Levie (Law Offices of Alvin F. De Levie and Associates) of the Pennsylvania bar, admitted pro hac vice, attorneys for appellant (Michael A. Ferrara, Jr. and Mr. de Levie, on the brief).

White and Williams L.L.P., attorneys for respondent The Children's Hospital of Philadelphia (Michael W. Horner and Kim Kocher, on the brief).

Ginarte, O'Dwyer, Gonzalez, Gallardo & Winograd, L.L.P., attorneys for amicus curiae New Jersey Association for Justice (John D. O'Dwyer, on the brief).

Respondent All Green Turf Management Corp. has not filed a brief.

PER CURIAM

Plaintiff appeals from a July 10, 2015 order granting summary judgment in favor of defendant, Children's Hospital of Philadelphia (CHOP). We affirm.

Plaintiff, an independent contractor, worked for CHOP doing odd jobs, such as repairing different fixtures, changing lights, and installing tiles. Plaintiff was hired by CHOP to repair lights located in the day-program parking lot, which were affixed to wooden poles. CHOP provided no guidance or supervisionfor plaintiff's work.

On the day of the accident, plaintiff checked the wires of two lights attached to two different poles in the parking lot and then turned his attention to a third light attached to a wooden pole. He pushed the pole to make sure that the pole was sturdy and found that it did not move. Plaintiff, with another worker, took a ladder and extended it to approximately two feet below the light. Plaintiff secured the ladder in place with straps around the ladder and the pole. As plaintiff was on the ladder testing the bulb and socket of the light, the pole broke. Plaintiff tried to climb down the ladder, but was unable to make it down fast enough. He then jumped backwards at about twenty feet so he would not hit barbed wire. As a result of the fall, plaintiff injured his heel. Plaintiff maintains the pole was rotten inside and caused the pole to break. Both parties agree that the rot was not visible before the pole broke.

Plaintiff commencedthis action in November 2013 to recover damages for personal injuries he sustained as a result of the accident. CHOP then filed a motion for summary judgment. The judge heard oral argument on July 10, 2015, and granted summary judgment in favor of CHOP. The judge found that the decision to place the ladder against the pole was incident to the work being performed because plaintiff conducted an inspection of the pole, and the lightsplaintiff needed to fix was located on top of the pole.

On appeal, plaintiff argues (1) the court failed to apply the first prong of the "hazard incident to work" exception of a landowner's duty to independent contractors; (2) there are genuine issues of material fact in dispute as to whether the hazard of a rotten pole was incident to the electrical work plaintiff was hired to do; and (3) defendant had a duty to provide a reasonably safe workplace to plaintiff becauseit failed to meet the "hazard incident to work" exception.

New Jersey Association for Justice (NJAJ) filed a brief as amicus curiae, arguing that the trial court applied the incorrect legal standard. The NJAJ contends CHOP owed plaintiff a duty to exercise reasonable care to provide a reasonably safe workplace and warn plaintiff of any dangerous conditions on the property. The only exception to this duty, according to the NJAJ, is where the hazard is (1) obvious and visible and (2) incident to the very work the contractor was hired to perform. The NJAJ asserts that in this case, the hazard was not obvious and visible, and a fact question exists as to whether the hazard was incident to the work performed.

Summary judgment may be granted when, considering the evidence in the light most favorable to the non-moving party, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. R.4:46-2(c); see alsoBrill v. Guardian Life Ins. Co. of Am., 142 N.J.520, 540 (1995). When reviewing an order granting summary judgment, we apply the same standards that the trial court applies when ruling on the motion. Oyola v. Liu, 431 N.J. Super. 493, 497 (App. Div.), certif. denied, 216 N.J.86 (2013).

"An occupier of land owes a duty to his invitee 'to use reasonable care to make the premises safe . . . .'" Olivo v. Owens-Illinois, Inc., 186 N.J.394, 406 (2006) (quoting Handleman v. Cox, 39 N.J.95, 111 (1963)). The landowner has "'the duty to provide a reasonably safe working place'" for the independent contractor he or she hires. Muhammad v. N.J. Transit, 176 N.J.185, 199 (2003) (quoting Wolczak v. Nat'l Elec. Prod. Corp., 66 N.J. Super.64, 75 (App. Div. 1961)). "The landowner's duty includes the obligation of making a reasonable inspection to discover defective and hazardous conditions." Sanna v. Nat'l Sponge Co., 209 N.J. Super.60, 66 (App. Div. 1986).

However, "the law carves out an exception to the requirement that premises be made safe for an independent contractor when the contractor is invited onto the land to perform a specific task in respect of the hazard itself." Olivo, supra, 186 N.J.at 406-07. "[T]he 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 407 (quoting Muhammad, supra, 176 N.J.at 199).

Specifically, the duty "does not entail the elimination of operational hazards which are obvious and visible to the invitee upon ordinary observation and which are part of or incidental to the very work the contractor was hired to perform." Sanna, supra,209 N.J.at 67; see alsoWolczak, supra, 66 N.J. Super.at 75; Dawson v. Bunker Hill Plaza Assocs., 289 N.J. Super.309, 318 (App. Div.), certif. denied, 146 N.J.569 (1996). This exception 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.'" Muhammad, supra, 176 N.J.at 199 (quoting Wolczak, supra, 66 N.J. Super.at 75).

The judge properly applied the law when granting summary judgment in favor of CHOP because he determined the risk of reaching the lights at the top of the pole was incidental to fixing the light. He explained that the hazard was ascending the pole, not the rotten wood in the pole. He found that the pole was directly related to fixing the light because the light was attached to the pole, the light fixtures and sockets were on the pole, and the wires electrifying the light were attached to the pole. The hazard of ascending the pole was an obvious risk because plaintiff inspected the pole for structural integrity before he ascended it. The judge also determined that plaintiff chose the method to ascend the pole to fix the light without any input or supervision from CHOP.

The determination whether defendant owed a duty to provide a reasonably safe workplace for an independent contractor to work is an issue of law and not fact. SeeReyes v. Egner, 404 N.J. Super.433, 462 (App. Div. 2009) (stating "the scope of a legal duty is a question of law for the court"), aff'd, 201 N.J.417 (2010). However, genuine issues of material fact relating to whether the hazard was a known risk incidental to the work the contractor was hired to perform should be submitted to a jury. SeeOlivo, supra, 186 N.J.at 407-08 (finding that there were genuine issues of material fact concerning the scope of the work the independent contractor was hired to perform, the handling of the hazard, and the extent of the landowner's supervision and control over the work).

Plaintiff maintains that like Olivo, the determination of whether the hazard was incident to the job was a matter of fact to be determined by a jury. We disagree. The Court in Olivostated that a landowner has "'a duty to provide a reasonably safe working place'" for independent contractors. Id.at 407 (quoting Muhammad, supra, 176 N.J.at 199). The Court explained that there were issues of fact relating to whether the hazard of "asbestos exposure was a known risk incidental to the specific work [the independent contractor] was hired to perform at the [job] site," the scope of the independent contractor's work, and the extent of supervision the independent contractor received. Ibid.

Here, unlike Olivo, there are no genuine issues of material fact. Plaintiff was hired to repair the lights in the parking lot. It is undisputed that CHOP provided no input nor supervised plaintiff. Plaintiff was injured because of a hazard created by doing the work he was hired to perform.

Affirmed.