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Property Owners Must Warn Contractors of Hidden Latent Defects (NJ)

October 25, 2019

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<p style="text-align: justify;">The Appellate Division revisited a property owner’s duty to provide a reasonably safe working place for a hired independent contractor in <em><a href="https://www.wcmlaw.com/wp-content/uploads/2019/10/Cabrera-v.-Fairleigh-Dickinson-University-1.pdf">Cabrera v. Fairleigh Dickinson University</a>.</em> In <span style="text-decoration: underline;">Cabrera</span>, defendant Fairleigh Dickinson University (FDU) hired KB Electric Services, Inc. (KB) to change lights on top of its library. FDU did not warn KB of any defects. Plaintiff, an employee of KB, fell off the roof and suffered injuries allegedly the result of a dangerous condition.</p>
<p style="text-align: justify;">Plaintiff ordinarily accessed the roof by using a KB bucket truck and wore a safety fall protection harness attached to the bucket while repairing the lights on the library roof. On the date of loss, FDU directed the plaintiff where to work and parked its own truck in the area normally occupied by the bucket truck. Plaintiff, unable to access the roof from the bucket truck, found an alternate way to reach the roof. He fell and sustained injury after leaning on a balustrade that gave way while attempting to retrieve pliers.</p>
<p style="text-align: justify;">Discovery revealed that FDU repaired the subject balustrades before the accident and testimony elicited from an FDU representative revealed workers joint specifically caulked the area where the accident occurred. The same representative admitted FDU was aware of other issues associated with the balustrades, including deteriorating joints, waterproofing problems, mismatching caulk, as well as the aforementioned prior repairs to the top of the rails and facing joints.</p>
<p style="text-align: justify;">FDU moved for summary judgment at the close of discovery on the basis that, although landowners owe a duty to provide a reasonably safe working place for a hired independent contractor, “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.” <span style="text-decoration: underline;">Olivo v. Owens-Illinois, Inc.</span>, 186 N.J. 394, 406-07 (2006). The trial judge granted summary judgment, finding FDU did not owe a duty to warn about the danger. Plaintiff appealed.</p>
<p style="text-align: justify;">The Appellate Division reversed. While a landowner’s duty does not extend to operational hazards which are obvious and visible to the invitee and which are part of or incidental to the very work the contractor was hired to perform, <span style="text-decoration: underline;">Sanna v. Nat’l Sponge Co.</span>, 209 N.J.Super. 60, 66 (App. Div. 1986), the latent defect here (deteriorating balustrades) was hidden – only FDU knew about it. Additionally, it was not part of or incidental to repairing light bulbs. As a result, FDU had a duty to warn KB, and the plaintiff, about the latent defect.</p>
<p style="text-align: justify;">Thanks to Brent Bouma for his contribution to this post. Please email <a href="mailto:VPinto@wcmlaw.com">Vito A. Pinto</a> with any questions.</p>

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