Plaintiff, Sonny Cabrera, Jr., an employee of KB Electric Services Company, Inc. (“KB”), was changing lights on top of the University’s library when he fell off the roof because of a loose balustrade and suffered injuries. The issue in Cabrera v. Fairleigh Dickinson University, 2019 N.J. Super. Unpub. LEXIS 2068 (App. Div. October 8, 2019), was whether the University breached any duty to the plaintiff, as an independent contractor, to warn him of the dangerous condition of the balustrades.
The plaintiff would have normally accessed the roof by using a KB bucket truck. From the bucket, he would do his repair work and would wear a safety fall protection harness that was attached to the bucket. However, in this instance, the University interfered with that practice. After directing plaintiff where to work, defendant parked its own truck where the plaintiff’s bucket truck needed to be. Thus, plaintiff was unable to access the roof from the bucket, nor was he able to access the roof from inside the library. He found an alternative way to reach the roof, and while there, he leaned on a balustrade to retrieve pliers that another worker had tossed to him. Unfortunately, he fell when the balustrade gave way.
The facts in this case showed that the University had repaired the balustrades before the accident. The University had prior knowledge that there was mismatched caulk in the area of the accident and that water infiltration deteriorated the mortar in the joints. Hence, the Court found that the defendant did know about the latent dangerous condition of the balustrades and, even though the defendant prevented plaintiff from accessing the roof using the bucket, it remained silent about the “deteriorated joints, waterproof problems, mismatching caulk, and previous repairs to the top of the rails and facing joints.” The Appellate Division emphasized that the dangerous condition – “the unstable balustrades” was not visible to the plaintiff and it was unrelated to the plaintiff’s electrical work.
Under the case law, an occupier of land owes a duty to an invitee to use reasonable care to make the premises safe, which includes providing a safe working place for an independent contractor that he or she hires. The duty includes the obligation to make a reasonable inspection to discover defective and hazardous conditions. Here, the Court found that the University did know of the existence of the dangerous condition before the accident.
The Court also noted, however, that there is a carve out exception for independent contractors. Under the law, there is “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.” Further, “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.”
Additionally, the Appellate Division noted that the duty owed to an independent contractor “does not entail the elimination of operational hazards which are obvious and visible to the invitee upon ordinary observation in which are part of or incidental to the very work the contractor was hired to perform.” The basis for this exception is that the landowner assumes that the worker is possessed of sufficient skill to recognize the degree of danger involved and to adjust his methods of work accordingly.
However, here, the Appellate Division found that the dangerous condition did not pertain to an operational hazard that was obvious and visible to the plaintiff upon ordinary observation. Rather, it was hidden. Only defendant knew about it. Moreover, the dangerous condition was not part of or incidental to repairing lightbulbs. Further, the plaintiff’s expert verified that the balustrades were made of cast stone material and the solid piers appeared to be substantial and appeared to be stable under normal anticipating loading conditions. However, the Court pointed out that defendant knew that was not the case.
The trial court had granted the defendant summary judgment on the basis that KB had no duty to warn about the dangerous condition. The Appellate Division reversed and remanded the case back to the trial court for further proceedings.
