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  • Cottrell-Solensky, PA


By: Edward Solensky Jr., Cottrell Solensky, P.A.

Restaurants and retailers often need to retain outside contractors to perform such

services as routine structural upkeep and repairs, installation of HVAC and

communications systems, and premises remodeling. Under the law, these contractors

and their employees are considered invitees of the business and, as a general rule, the

business owner would have a non-delegable duty to use reasonable care to protect

these invitees against known or reasonably discoverable dangers. However, harm

which occurs to a contractor’s employee as a result of the very work which the

employee was hired to perform would not be the responsibility of the restaurant or

retailer. Under this well-recognized exception to the general rule, the duty to provide a

reasonably safe place to work is relative to the nature of the invited endeavor and does

not entail the elimination of operational hazards which are obvious and visible to the

invitee upon ordinary observation, and which are part of or incidental to the very work

the contractor was hired to perform.

The exception is recognized In New Jersey, where a business operator is generally

under no duty to protect an employee of an independent contractor from a hazard

created by the performance of the contracted work, provided that the landowner does

not retain control over the means and methods of the execution of the project. Gibilterra

v. Rosemawr Homes, 19 N.J. 166, 170 (1955). In Wolczak v. National Electric Products

Corp., 66 N.J. Super. 64 (App. Div. 1961), the Appellate Division held that absent

control over the job location or direction of the manner in which the delegated tasks are

carried out, the party contracting out the work, be it a landowner or a general contractor,

is not liable for injuries to employees of the contractor resulting from either the condition

to the premises or the manner in which the work is performed. Further, this immunity is

not disturbed by the exercise of general superintendence as is necessary to insure that

the contractor performs his agreement. This is especially the case where an

experienced contractor is hired to correct the very danger present or to perform his work

under conditions where the hazards are known. The landowner may assume that the

worker, or his superiors, are possessed of sufficient skill to recognize the degree of

danger involved and to adjust their methods of work accordingly.

The doctrine was affirmed in the context of a retail setting in Dawson v. Bunker Hill

Plaza Associates, 289 N.J. Super. 309. In that case, plaintiffs Dawson, Halter and

Williams were carpenters employed by I & B Builders and were injured while erecting

and temporarily bracing prefabricated roof trusses on a building at the Bunker Hill Plaza

Shopping Center in Washington Township, New Jersey. The trusses collapsed in a

domino-like fashion, throwing the three plaintiffs to the concrete floor below. The trusses

then fell on top of plaintiffs, causing serious personal injuries to each plaintiff. In granting

summary judgment in favor of Bunker Hill, the trial court held that, although Bunker Hill's

status as landowner imposed upon it a non-delegable duty to use reasonable care to

protect invitees against known or reasonably discoverable dangers, it did not owe a duty

to plaintiffs, as employees of an independent contractor, to prevent injury from a risk

which was incident to the very task they were hired to perform, and therefore was not

liable to plaintiffs for the injuries they sustained.

A similar result was reached under Pennsylvania law in Warnick v. Home Depot U.S.A.,

Inc., 516 F. Supp. 2d 459. In that case, Home Depot and IBM entered into a contract

whereby IBM was to provide computer installation, wiring, and services at several Home

Depot stores. IBM subcontracted some of the installation work to a subcontractor. A

subcontractor employee, Thomas Warnick, was severely injured when he fell while

pulling cable through the ceiling at a store. The employee alleged that his fall was due

to the store's and/or the general contractor's negligence. The court concluded that

Home Depot was entitled to summary judgment because, as a landowner, the store

owed no duty to the injured subcontractor employee given that the subcontractor was at

least as aware of the dangerous condition as was the store. Also, as the hiring party,

the store owed no duty because it did not retain control over the means of the

subcontractor's work and the work was not of a particularly risky nature.

In a New Mexico case that also involved Home Depot, the doctrine served as the basis

for the court’s reasoning in granting summary judgment to the defendant retailer. See,

Valdez v. Home Depot USA, Inc., 2015 U.S. Dist. LEXIS 163293. There, Home Depot

contracted with Crossmark Holdings -- an independent company -- to dismantle and

reconfigure racking systems for displaying merchandise, also known as re-setting.

Crossmark Holdings supervised its employees, including plaintiff Eddie Valdez, to

ensure that work was performed safely. On August 27, 2009, Valdez and his crew

member were moving overstock cabinets stacked on a top shelf to pull out washers

behind them, and then move the washers down to the ground. After several minutes on

the top shelf, Valdez lifted a large, heavy cabinet and, after stepping sideways, fell

through the shelving when one of the boards on which he was standing moved. He

landed on a beam one shelf below, hitting his groin. He and his wife thereafter filed an

action against Home Depot.

In dismissing plaintiffs’ case, the court held as a matter of law that Home Depot did not

owe Valdez a duty to provide a safe place to work. The court reasoned that Home

Depot did not maintain any control over the operation of Crossmark Holdings. Other

than hiring Crossmark Holdings to perform specific tasks, Home Depot did not

participate in, supervise, or direct the work that Crossmark Holdings performed. The

court concluded that, when viewed in the light most favorable to the plaintiffs, the

evidence did not give rise to a reasonable inference that Home Depot retained enough

control over the means and manner of Valdez' or Crossmark Holdings' work or the work

site. Thus, Home Depot did not have a duty, as set forth in the Restatement, to provide

a safe place to work.

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