Izhaky v. Jamesway Corp.

• Court: New Jersey Superior Court – Appellate Division
• Citation: 478 A.2d 416,195 N.J.Super. 103
• Decision Date: 16 April 1984
• Parties: Joseph IZHAKY and Barbara Izhaky, Plaintiffs-Respondents, v. JAMESWAY CORPORATION, a body corporate, Defendant-Appellant.

Page 103

195 N.J.Super. 103 478 A.2d 416 Joseph IZHAKY and Barbara Izhaky, Plaintiffs-Respondents,
v.
JAMESWAY CORPORATION, a body corporate, Defendant-Appellant. Superior Court of New Jersey,
Appellate Division. Argued Sept. 21, 1983.
Decided April 16, 1984.

[478 A.2d 417]

Page 105

James F. Carney, Newark, for defendant-appellant (Friedman, Carney & Wilson, Newark, attorneys; James F. Carney, of counsel; Thomas A. Harley, Newark, on the brief).

Barry D. Epstein, Saddle Brook, for plaintiffs-respondents (Neal H. Flaster, Saddle Brook, on the brief).

Before Judges FRITZ, FURMAN and DEIGHAN.

The opinion of the court was delivered by

FRITZ, P.J.A.D.

Plaintiff, ¹ the employee of an electrical contractor retained by defendant to relocate a switch and install wall outlets as a portion of defendant's remodeling a section of its headquarters, was seriously injured when his hand came in contact with a live wire. The jury returned a verdict for $150,000 but apportioned negligence 65% to 35% between defendant and plaintiff, respectively, so that judgment was entered in favor of plaintiff and against defendant for $97,500.

The essence of defendant's appeal implicates the legal question: what is the duty owed by an owner to the employee of an independent contractor respecting hazards incidental to the nature of the work? In this matter we are concerned with electrical shock to an electrician.

Defendant insists there is no duty owed to protect an electrician from the hazards of electricity inherent in the very work he was hired to perform. A proposition which wholly insulates an owner from liability for injuries to the employee of an independent contractor without regard for the condition of the

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premises, where, as here, the actual production of the injury was from a source directly related to the work, is rejected.

Citing Rodrigues v. Elizabethtown Gas Co., 104 N.J.Super. 436, 250 A.2d 408 (App.Div.1969), defendant concedes that ordinarily a landowner owes a duty to employees of an independent contractor who come upon the property to provide those employees with a reasonably safe place to work. We would add that this duty is nondelegable. Id. at 442, 250 A.2d 408. But defendant seeks haven in Wolczak v. National Electric Products Corp., 66 N.J.Super. 64, 168 A.2d 412 (App.Div.1961) where the following, adopted in Rodrigues, appears:

The duty to provide a reasonably safe place in which to work is relative to the nature of the invited endeavor and does not entail the elimination of potential operational hazards which are obvious and visible to the invitee upon ordinary observation. Horton v. Smith, 128 N.J.L. 488 [27 A.2d 193] (Sup.Ct.1942); Mergel v. Colgate-Palmolive-Peet Co., 41 N.J.Super. 372, 378-79 [125 A.2d 292] (App.Div.), certification denied 22 N.J. 453 [126 A.2d 392] (1956). This is especially so when the invitee is an experienced laborer hired 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 [478 A.2d 418] 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. McDonald v. Standard Oil Co., 69 N.J.L. 445, 448 [55 A. 289] (E. & A. 1903); Broecker v. Armstrong Cork Co., 128 N.J.L. 3 [24 A.2d 194] (E. & A. 1941); Beck v. Monmouth Lumber Co., 137 N.J.L. 268 [59 A.2d 400] (E. & A. 1947); Gibilterra v. Rosemawr Homes, supra, 19 N.J. at page 170 [115 A.2d 553]; Huels v. General Electric Co., 134 N.J.L. 165 [46 A.2d 654] (Sup.Ct.1946); Canonico v. Celanese Corp. of America, 11 N.J.Super. 445, 454 [78 A.2d 411] (App.Div.1951); Trecartin v. Mahony-Troast Construction Co., supra, 18 N.J.Super. at p. 386 [87 A.2d 349]; Mergel v. Colgate-Palmolive-Peet Co., supra, 41 N.J.Super., at p. 379 [125 A.2d 292];...