SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4062-17T4

SONNY CABRERA, JR.,

Plaintiff-Appellant,

v.

FAIRLEIGH DICKINSON

UNIVERSITY,

Defendant/Third-Party

Plaintiff-Respondent,

v.

KB ELECTRIC SERVICES 

COMPANY, INC., and THE 

HARTFORD INSURANCE

COMPANY,

Third-Party Defendants.

_____________________________

Argued September 23, 2019 – Decided

Before Judges Fasciale and Mitterhoff.

On appeal from the Superior Court of New Jersey, Law 

Division, Passaic County, Docket No. L-2883-15.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

October 8, 2019
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Dennis G. Polizzi argued the cause for appellant (Pitts 

& Polizzi, LLP, attorneys; Dennis G. Polizzi, of 

counsel and on the brief).

Richard Evan Barber argued the cause for respondent 

Fairleigh Dickinson University (Haworth Barber & 

Gertsman LLC, and Post & Schell, PC, attorneys; 

Richard Evan Barber, Richard B. Wickersham, Jr. and 

Matthew Dean Johnson, on the brief). 

PER CURIAM 

In this personal injury case, defendant Fairleigh Dickinson University 

hired KB Electric Services Company, Inc. (KB) to change lights on top of its 

library. Defendant knew about a latent defect on the roof, but failed to warn 

anyone at KB of the danger. Plaintiff, an employee of KB, fell off the roof 

because of this dangerous condition. The judge held that defendant owed 

plaintiff – and KB – no duty to warn about the danger.

1

 Under the facts here, 

we disagree and reverse.

Summary judgment may be granted when, considering the evidence in the 

light most favorable to the non-moving party, there is no genuine issue of 

material fact and the moving party is entitled to judgment as a matter of law. R.

 

1 The judge originally found that fact issues precluded summary judgment to 

defendant. On reconsideration, the judge granted summary judgment to 

defendant holding that no duty existed. Plaintiff appeals from an order denying 

his subsequent motion for reconsideration of the order granting summary 

judgment to defendant. 
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4:46–2(c); see also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 

(1995). When reviewing an order granting summary judgment, we apply the 

same standards that the trial court applies when ruling on the motion. Oyola v.

Xing Lan Liu, 431 N.J. Super. 493, 497 (App. Div. 2013). 

Ordinarily, plaintiff would access the roof by using a KB bucket truck. 

From the bucket, he would do his repair work, while wearing a safety fall 

protection harness that was attached to the bucket. But in this instance,

defendant interfered with that practice. After directing plaintiff where to work, 

defendant parked its own truck where the bucket truck needed to be. Plaintiff 

therefore was unable to access the roof from the bucket. Moreover, plaintiff was 

unable to access the roof from inside the library. Plaintiff found an alternate 

way to reach the roof, and while there, leaned on a balustrade to retrieve pliers 

that another worker had tossed to him. Plaintiff fell when the balustrade gave 

way.

It is undisputed that a dangerous condition existed. The day after the 

accident, defendant's engineer inspected the balustrade and issued a report. In 

his report, he stated:

The accident occurred at the northeast corner of the 

existing Library building over the Orangerie Room 

. . . .
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The balustrade is made using cast stone material. The 

balustrade at the location of the failure consists of six 

(6) balusters supporting a continuous [capstone] 

spanning horizontal from the solid piers at each side of 

the balustrade. . . .

All of the six balusters failed at their thinnest section, 

approximately [five] (5) inches above the base. . . . The 

top horizontal stone also failed at the connections of the 

[capstone] over the solid pier on each side. . . . The 

top stone has a butt joint at the face of the solid piers 

and is only continuous over the balusters. . . . This butt 

joint appears to have been grouted, however not much 

grout was attached to the remaining [capstones] over 

the solid piers. . . . 

The connection of the balusters to the [capstone] 

appears to be a mortar connection along with a mortar 

connection at the butt joint between the pieces of 

[capstone]. We did not identify any type of mechanical 

fasteners at any connections. Also, the balustrades are 

unreinforced.

After performing a general inspection of the remaining 

in place balustrade around the perimeter of the roof, it 

appears that most of the mortar joints between the butt 

joints in the [capstones] have deteriorated, with some 

joints being caulked in the past. . . . The mortar joint 

between the top of the balusters and the [capstone] is 

also cracked and loose at some locations. 

However, at the time of our inspection, the remaining 

balustrades appear that they would be substantial and 

appear[] to be stable under normal anticipated loading 

conditions, except for major seismic activity. 

The solid piers at each side of the balustrades also 

appear to be quite substantial and would be stable under 
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anticipated normal type loading conditions, except for 

major seismic activity. . . .

[Emphasis added.]

Indeed, defendant's representative testified that the university repaired the 

balustrades before the accident. He explained that before the accident, the 

university joint caulked the balustrades "where the accident occurred." He 

testified that before the accident, he had seen "mismatching caulk" in the area 

of the accident. This representative also said he knew that the repair work 

included caulking "the tops of the rails"; the caulking occurred on the "lower

level on the upper facing joints" of the balustrades; and that the work was done 

to address "waterproofing issues." He explained that the water infiltration 

"deteriorates mortar . . . in the joint[s]." 

Although defendant knew about the latent dangerous condition, and even 

though defendant prevented plaintiff from accessing the roof using the bucket, 

defendant remained silent about deteriorating joints, waterproof problems, 

mismatching caulk, and previous repairs to the top of the rails and facing joints. 

We emphasize that the dangerous condition – the unstable balustrades –

remained not visible to plaintiff, and that the balustrades were unrelated to the 

electrical work. 
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"An occupier of land owes a duty to his invitee to use reasonable care to 

make the premises safe. . . ." Olivo v. Owens–Illinois, Inc., 186 N.J. 394, 406 

(2006) (quotation marks and citation omitted). And a landowner has "'the duty 

to provide a reasonably safe working place'" for an independent contractor he or 

she hires. Muhammad v. N.J. Transit, 176 N.J. 185, 199 (2003) (quoting

Wolczak v. Nat'l Elec. Prod. Corp., 66 N.J. Super. 64, 75 (App. Div. 1961)). 

"The landowner's duty includes the obligation of making a reasonable inspection 

to discover defective and hazardous conditions." Sanna v. Nat'l Sponge Co., 

209 N.J. Super. 60, 66 (App. Div. 1986). Here, defendant knew the dangerous 

condition existed before the accident. 

We fully understand defendant's contention as to independent contractors. 

"[T]he 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." Olivo, 186 N.J. at 406-

07. "'[T]he 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.'" Id. at 407 

(quoting Muhammad, 176 N.J. at 199) (emphasis added).
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Specifically, the duty "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." Sanna, 209 N.J. Super. at 67 (emphasis added); see also Wolczak, 66 

N.J. Super. at 75; Dawson v. Bunker Hill Plaza Assocs., 289 N.J. Super. 309, 

318 (App. Div. 1996). This exception exists because "'[t]he 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.'" Muhammad, 176 N.J. at 199 (quoting Wolczak, 66 N.J. Super. at 

75).

But here, the dangerous condition did not pertain to an operational hazard 

that was obvious and visible to plaintiff upon ordinary observation. It was 

hidden; only defendant knew about it. And the dangerous condition was not part 

of or incidental to repairing light bulbs. Furthermore, the engineer verified that 

the balusters were made of cast stone material, and that the balusters and the 

solid piers "appear[ed] [to] be substantial and appear[ed] to be stable under 
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normal anticipated loading conditions, except for major seismic activity." Only 

defendant knew that this was not the case.

2

Reversed.

 

2

 We conclude defendant's argument—that no duty exists because the balusters 

were ornamental—is without merit to warrant discussion in a written opinion. 

R. 2:11–3(e)(1)(E). We nevertheless add that the case law cited by defendant in 

its merits brief for that proposition is misplaced entirely.