SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

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- 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 Defendant s.

__ ___________________________

Argued September 23, 2019

– Decided Before Judges Fascia le and Mitterhoff. On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L

- 2883

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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

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October 8, 20192 A

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- 17T4 Dennis G. Polizzi argued the cause for appellant (Pitts & Polizzi, LLP, attorneys; Dennis G. Polizzi, of counsel and on the brief).
R ichard 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 t his personal injury case, defendant Fairleigh Dickinson University hired KB Electric Services Company, Inc. (KB) to change lights on top of its library. D efendant knew about a latent defect on the roof , but failed to warn anyone at KB of the danger. Plai ntiff, an employee of KB, fell off the roof
bec ause of this dangerous condition

. T he 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 w hen, 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 t hat 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 reconsiderati on of the order gran ting summary judgment to defendant

.3 A

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4:46

– 2(c); see also Brill v. Guardian Life Ins. Co. of Am. , 1 42 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 w ould access the roof by using a KB bucket truck.
F rom 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 a n 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 t he balustrade gave
way. It is undisputed that a dangerous condition existed. The day after the
acci dent, defendant's engineer inspected th e 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

. . . .4 A

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- 17T4 The balustrade is made using cast st one 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 c ontinuous over the balusters. . . . This butt joint appears to have been grouted, however not much grout was attached to the remaining [cap stones ] over the solid piers

. . . . The connection of the balusters to the [capstone] appears to be a mortar co nnection 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 balust rades are unreinforced

. After performing a general inspection of the rem aining 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 lo o se at some locations

. However, at the time of our inspection, the remaining balustrades appear that they would be substantial and appear [] t o be stable under normal anticipated loading conditions, exce pt for major seismic activity.
T he solid piers at each side of the balustrades also appear to be quite substantial and would be stable under5 A

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- 17T4 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 accid ent , 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 balustrade s ; 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 pla intiff from accessing the roof using the bucket, defendant remained silent about deteriorating joints, waterproof problems, mismatching caulk , and previous repair s to the top of the rails and facing joints. We emphasize that the dangerous condition

– the unstable balustrades

– remained not visible to plaintiff , a nd that the balustrades were unrelated to the
electrical work.6 A

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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 m arks 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, 6 6 (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 , 1 86 N.J. at 406

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. " ' [T]he duty to provide a reasonably safe working place for employees of an independent contra ctor does not relate to known hazards which are part of or incidental to the very work the contractor was hired to pe rform. ' " Id. at 407 (quoting Muhammad , 1 76 N.J. at 199) (emphasis added).7 A

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Specifically, the duty " does not entail the elimination of opera tional
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 invo lved 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 o bservation

. It was
hidden ; only defendant knew about it

. And the dangerous condition was not part
of or incidental to repairing light bulbs. Furthermore, t he engineer verified that the balusters were made of cast stone material, and that the balusters a nd the solid piers "appear[ed] [to] be substantial and appear[ed] to be stable under8 A

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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 la w cited by defendant in its merits brief for that proposition is misplaced entirely.