By: Russ M. Patane, Esq. and Hristo Zevilkaris, Esq.
In a recent unpublished decision Olivo v. Woodhaven Lumber & Millwork, No. A-5107-14T2; LEXIS 1328, the Appellate Division addressed the issue of whether a property owner could be considered a general contractor, and thus liable for the negligence of an independent contractor it hired where the property owner’s role was limited to identifying the locations of the work that needed to be repaired. In upholding the Trial Court’s grant of Defendant’s summary judgment motion, the Appellate Division reaffirmed the general provision that a property owner and/or general contractor is typically not responsible for the negligent actions of an independent contractor unless it retains any control over the “manner and means” the independent contractor performs the work in question. The reasoning for this theory is that the property owner can reasonably rely on the fact that the independent contractor is trained to observe and remedy any inherent dangerous associated with the work it was contracted to perform. Furthermore, since the parties had a prior relationship involving similar repairs, the Appellate Division held that the property owner had no reasons to believe that contractor was incompetent to perform the repairs.
In Olivo, Plaintiff was injured when he fell through a skylight while performing roofing repairs for his employer at a lumber yard warehouse. Prior to the accident in question, the lumber yard’s facility manager contacted Plaintiff’s employer, an independent contractor, to repair several leaks in the roof of its warehouse. Approximately one week before the work was to begin, the facility manager met with the foreman to review the work and identify the leaks to be repaired. He did not, however, make any recommendations on how to complete the repairs, did not direct any course of action, and was not involved in the roofing work in any way. The contractor obtained all of the materials, and used its own personnel, tools and equipment to complete the repairs. The property owner did not instruct the contractor in any way on how to complete the work, did not provide any materials, and was not present on the roof when the work was being performed.
As a result of the accident, Plaintiff filed a Complaint against Woodhaven alleging that, although it was the property owner, it was in fact acting as a “general contractor” because it hired Plaintiff’s employer, a “subcontractor” to perform the repairs, determined the location of the leaks, and directed them to make those repairs. As such, Plaintiff claimed that, as the general contractor, Woodhaven was negligent in failing to maintain a safe work site in compliance with OSHA regulations.
The Trial Court disagreed, and granted Woodhaven’s motion for summary judgment, finding that the property owner owed Plaintiff no duty as it was not a general contractor and did not retain any control over the manner and means the contractor performed the work. Additionally, based upon their prior, positive experiences the property owner had no reason to believe that the contractor was incompetent.
On appeal, Plaintiff again argued that the land owner was the general contractor and, as such, was liable for the subcontractor’s negligence because it retained control of the manner and means of doing the work. Alternatively, Plaintiff argued that the property owner was liable for hiring an incompetent subcontractor. In relying upon the Court’s holding in Sanna v. Nat’l Sponge Co., the Appellate Division affirmed the Trial Court’s grant of summary judgment, reiterating that generally, a property owner who hires an independent contractor is under a duty to exercise ordinary care to render the areas he might reasonably expect the contractor to work to be reasonably safe. Sanna v. Nat’l Sponge Co., 209 N.J. Super. 60, 66). However, the property owner’s duty to provide a reasonably safe workplace is relative to the nature of the intended work, and did not require the elimination of “operational hazards” which are obvious and visible to the contractor upon ordinary observation and which are incidental, to the very work to be performed. Id. at 67. The basis for this doctrine is grounded in the understanding the general contractor and/or owner may reasonable assume that the independent contractor is sufficiently skilled to recognize and address the dangers associated with the work in question. As such, so long as the general contractor and/or owner does not retain control of the “manner and means” the work is to be performed, and does not knowingly hire a subcontractor who is not competent to perform the work in question, no liability can be allocated to them.
Ultimately, the Appellate Division concluded that, even assuming the property owner was acting as the general contractor, there was no evidence that it retained any control over the “manner and means” the subcontractor performed the work in question. The mere fact that the property owner identified the locations of the leaks, as well as the areas that needed repairs, was insufficient to impose liability on the property owner. The Appellate Division considered the property owner’s role as merely a “supervisory interest” related only to the result, and not to the means of accomplishing it. Additionally, there was no evidence that the property owner “knowingly” hired an incompetent contractor based upon their prior, positive relationship. Most importantly, the fact that the contractor was cited with OSHA violations for the present project was insufficient to deem the contractor incompetent.
The Appellate Division’s holding, although not precedential, reaffirms the proposition that a property owner and/or general contractor is not liable for the actions of its independent contractor provided that it does not exercise any control over the “manner and means” in which the independent contractor performs its services. However, as illustrated in Olivo, a general contractor and/or property owner must be cognizant of their level of control over the work be performed, as well as the nature of any recommendations or instructions given in order to mitigate their potential exposure to liability should a claim arise. Olivo reminds us that when investigating claims involving injuries to independent contractors stemming from the very work they are hired to perform and in evaluating the potential exposure insureds may face, care should be given to determine the breadth and nature of any comments, representations, or instructions given in relation to the independent contractor’s scope of work. As the Court noted in Olivo, more than simply providing a general description of the work to be performed is required to impute liability, therefore, so long as the general contractor and/or owner’s involvement is limited, no liability should exist.
 Russ M. Patane, Esq. is a Shareholder in GRSLB&G’s Litigation Department. He defends a wide variety of clients in various civil actions brought forth in New Jersey and New York State and Federal Courts. Russ can be reached at email@example.com.
 Hristo Zevilkaris, Esq. is an Associate in GRSLB&G’s Litigation Department. He defends a wide variety of clients in various civil actions brought forth in New Jersey State and Federal Courts. Chris can be reached at firstname.lastname@example.org.