Bozza v. Burgener

• Court: New Jersey Superior Court – Appellate Division
• Writing for the Court: EICHEN
• Citation: 280 N.J.Super. 583,656 A.2d 49
• Parties: Michael A. BOZZA, Plaintiff-Appellant, v. Forrest BURGENER and Louise Burgener, Defendants-Respondents and John Doe 1-20 Inclusive (all fictitious persons) and ABC Corp., 1-20 Inclusive (all fictitious entities), Defendants. George HUHN and Debra Huhn, Plaintiffs-Appellants, v. Forrest BURGENER and Louise Burgener, Defendants-Respondents.
• Decision Date: 11 April 1995

Page 583

280 N.J.Super. 583 656 A.2d 49 Michael A. BOZZA, Plaintiff-Appellant,
v.
Forrest BURGENER and Louise Burgener, Defendants-Respondents
and
John Doe 1-20 Inclusive (all fictitious persons) and ABC
Corp., 1-20 Inclusive (all fictitious entities),
Defendants.
George HUHN and Debra Huhn, Plaintiffs-Appellants,
v.
Forrest BURGENER and Louise Burgener, Defendants-Respondents. Superior Court of New Jersey,
Appellate Division. Argued Oct. 13, 1994.
Decided April 11, 1995.

[656 A.2d 50]

Page 584

Gail S. Boertzel, Morristown, for appellant Michael A. Bozza (Stephen S. Weinstein, P.C., attorney; Ms. Boertzel, on the brief).

James D. Muirhead, Hackensack, for appellants George Huhn and Debra Huhn (Stephen S. Weinstein, P.C., Morristown, attorney; Mr. Muirhead, on the brief).

Randi S. Greenberg, Iselin, for respondents Forrest Burgener and Louise Burgener (Robert A. Auerbach, attorney; Ms. Greenberg, of counsel, and on the brief).

Page 585

No other parties participated in this appeal.

Before Judges KING, MUIR, Jr. and EICHEN.

The opinion of the court was delivered by

EICHEN, J.S.C. (temporarily assigned).

Plaintiffs Michael Bozza (Bozza) and George Huhn (collectively plaintiffs) appeal in these consolidated personal injury actions from a summary judgment in favor of defendants Forrest Burgener and Louise Burgener, his wife (defendants). The cases present issues of landowner liability. Plaintiffs sued defendants for injuries allegedly sustained in an accident on June 27, 1989 while they were attempting to remove a large pane of glass from its frame at residential property owned by defendants.

Plaintiffs were employed by Huhn Burgener Construction Company on the date of the accident. George Huhn's brother, Douglas Huhn, and defendant Forrest Burgener were the principals of the company. The window removal project had been assigned to plaintiffs through Huhn Burgener Construction Company. The job involved removing two panes of glass from their window frames. The window panes were made of untempered glass, one-quarter inch thick, about seven or eight feet high and two-and-a-half feet wide, and were located about seven feet from the ground, just above the front door of the house. The exterior pane of glass was removed without incident by plaintiffs and another[656 A.2d 51] worker, Alphonzo Palacio (Palacio), with the assistance of defendant Forrest Burgener. After the first pane was removed, defendant Forrest Burgener left the property, and plaintiffs continued with the work, following the same procedure they had in removing the exterior pane. The glass broke into two pieces as plaintiffs were lowering it to the ground. Witnesses dispute exactly when and how the glass broke, but Palacio said the pane "became stuck on the side of the frame" and as they tried to "wiggle it free" it "snapped in the middle." There is no evidence in the record that the glass was defective.

Plaintiffs claimed they were only carpenters, inexperienced and unskilled in removing glass. The record reflects plaintiffs did not

Page 586

discuss using or use any safety equipment such as tape, suction cups or work gloves in connection with the work. Plaintiffs' expert, Wayne Nolte, concluded in his report that "Mr. Forrest Burgener through his work, should certainly [have] know[n] the potential hazards associated with glass removal and [should have] provide[d] the adequate safety equipment."

Summary judgment was granted in favor of defendants because the judge concluded plaintiffs' proofs failed to establish a basis for holding them liable as landowners. The motion judge pointed out, "everything [defendant Forrest Burgener] might have done wrong as an employer was encompassed through the exclusive remedy of work[ers] compensation court...." We agree and affirm.

We recently reiterated in Kane v. Hartz Mountain Industries, 278 N.J.Super. 129, 140, 650 A.2d 808 (App.Div.1994), the rules governing landowner liability when employees of a contractor are injured on the work site. There we restated the general rule that a "landowner has a non-delegable duty to use reasonable care to protect invitees against known or reasonably discoverable dangers." Ibid. However, we also acknowledged, absent certain exceptions, that a landowner is "not responsible for harm which occur[s] to an employee [of an independent contractor] as a result of the very work which that employee was hired to perform." Ibid. (recognizing the continued validity of this principle as stated in Wolczak v. National Elect. Products Corp., ...