WCM’s Denise Fontana Ricci recently won summary judgment in a trench collapse case in which she defended a public college and the State of New Jersey in a claim by a contractor’s employee who was injured during a utility pipe replacement project. In Gage v. The College of New Jersey, et al., the plaintiff laborer was declared totally disabled, and workers’ compensation payments alone totaled over $150,000. The workers’ compensation bar prevented him from filing a civil suit directly against his employer, so he set his sights on the property owner for civil litigation.

As the case progressed, WCM identified contract terms and witness testimony that brought the claim within longstanding jurisprudence establishing that a landowner is under no duty to protect an employee of an independent contractor from the very hazard created by the doing of the contract work provided the owner does not maintain control over means and methods of the work. Gibilterra v. Rosemawr Homes, 19 N.J. 166, 170 (1955). This is precisely because a landowner assumes that the contractor, and by extension its employees, “are sufficiently skilled to recognize the dangers associated with their task and adjust their methods accordingly.” Accardi v. Enviro-Pak Systems Co., 317 N.J.Super. 457, 463 (App.Div. 1999).

Although the plaintiff argued that landowners may be liable when they retain control over the means and methods, there was no real evidence that the college exerted this control over the work. The contract was clear that the contractor was solely responsible for means and methods, and this governed the relationship of the parties throughout the project. Contract terms cited by plaintiff to cloud the issue were no more than quality control provisions. ”Developing a project and directing that it be completed within a certain timeframe and within certain specifications do not constitute interference with the project and remain within the ‘general supervisory power over the result to be accomplished rather than the means of the accomplishment.” Muhammad v. NJ Transit, 176 N.J. 185, 197 (2003).

The plaintiff also presented expert testimony to suggest that the industry standard places responsibility on a landowner to ensure work site safety. However, our Supreme Court has expressly found that no such duty exists. Thus, the expert’s opinion could not usurp the role of the court on this legal issue.

Mercer County Superior Court Judge Walcott-Henderson granted summary judgment to all defendants, agreeing that no duty was owed to the plaintiff where there was no evidence the College controlled means and methods of its independent contractor. She decided the motion on this basis before even reaching New Jersey Tort Claims immunities.

Thanks to Brent Bouma for his contribution for this post.  Please write to Vito A. Pinto for further information.