In the present case Exxon engaged a competent contractor, provided plaintiff with a reasonably safe working place and retained no control over Delta's diving activities; there thus have been established no grounds upon which primary liability may be based. See Rodrigues v. Elizabethtown Gas Co., 104 N.J. Super. 436, 442 (App.Div. 1969). The general rule governing vicarious liability for the negligence of an independent contractor is that of nonliability:
An "inherently dangerous activity" is always dangerous, no matter how performed, and the danger is incidental to and characteristic of the work itself. Rodrigues v. Elizabethtown Gas Co., 250 A.2d 408, 413 (App. Div. 1969). The Restatement (Second) of Torts addresses demolitions and states, in relevant part:
However, the district court found that there is simply no evidence to support the argument that Sprout-Bauer hired Giammetta with the knowledge that it was incompetent or could not safely execute the job, and we agree. Finally, where the work performed by a subcontractor constitutes a nuisance per se, the owner or general contractor may be liable provided that the injured party falls within a protected class of plaintiffs. Compare Rodrigues v. ElizabethtownGas Co., 104 N.J. Super. 436, 444, 250 A.2d 408, 413 (1969) ("[a]ssuming without deciding that New Jersey would include employees of independent contractors" within the class of plaintiffs protected under the nuisance per se rule) with Donch v. Delta Inspection Services, Inc., 165 N.J. Super. 567, 575, 398 A.2d 925, 929 (1979) ("when a party engages an independent contractor to carry on an activity which by its very nature involves a peculiar or high risk of harm to the contractor's employees, the activity is not inherently dangerous as to such parties within the Majestic Realty nondelegability exception") (emphasis in original). Although O'Keefe has argued that the rigging and installation of the center section component involved a peculiar risk of which the riggers were not aware, he has not asserted that the rigging work involved constituted a nuisance per se.
Under New Jersey law, an "inherently dangerous" activity is work that involves "a grave and peculiar risk of harm to others unless special precautions are taken." Rodrigues v. Elizabethtown Gas Co., 104 N.J. Super. 436, 443, 250 A.2d 408, 412 (App. Div. 1969). We agree with the district court that the handling and processing of radioactive materials properly fall in this category.
We must therefore look to the more general principles which govern New Jersey courts in their exposition of common law doctrines. Rodrigues v. Elizabethtown Gas Co., 104 N.J. Super. 436, 250 A.2d 408 (App. Div. 1969); Csaranko v. Robilt, Inc., 93 N.J. Super. 428, 226 A.2d 43 (App. Div. 1967); Marion v. Public Service Elec. and Gas Co., 72 N.J. Super. 146, 178 A.2d 57 (App.
See Gibilterra v. Rosemawr Homes, 19 N.J. 166, 170-71, 115 A.2d 553, 555 (1955); Wolczak v. National Elec. Products Corp., 66 N.J. Super. 64, 75, 168 A.2d 412, 414 (App. Div. 1961); see also Broecker v. Armstrong Cork Co., 128 N.J.L. 3, 24 A.2d 194 (E. A. 1942). But see Rodrigues v. Elizabethtown Gas Co., 104 N.J. Super 436, 444, 250 A.2d 408, 412 (App. Div. 1969) (dictum); Woolen v. Aerojet General Corp., 57 Cal.2d 407, 20 Cal.Rptr. 12, 369 P.2d 708, 711 (1962). Given our disposition of this issue, however, we do not find it necessary to decide these questions.
See also Accardi v. Enviro-Pak Systems Company, Inc., 317 N.J. Super. 457, 462 (App.Div. 1999), certif. denied, 158 N.J. 1999). "It has thus been said that a landowner `is under a duty to exercise reasonable care to render the work site reasonably safe for the employee of an independent contractor who comes upon those premises, for the purpose of performing work thereon, and this duty is non-delegable.'" Id. (citing Rodrigues v. Elizabethtown Gas Co., 104 N.J. Super. 436 (App.Div. 1969)). "An independent contractor is one `who, in carrying on an independent business, contracts to do a piece of work according to his own methods without being subject to the control of the employer as to the means by which the result is to be accomplished but only as to the result of the work.'"Rigatti v. Reddy, et al. , 318 N.J. Super. 537, 542 (App.Div. 1999) (citingAccardi v. Enviro-Pak Sys. Co. , 317 N.J. Super. 457, 463 (App.Div. 1999),certif. denied, 158 N.J. 685 (1999) (quotingBahrle v. Exxon Corp. , 145 N.J. 144, 157 (1996)).
To be an inherently dangerous activity, "the danger must inhere `in the activity itself at all times, whether or not carefully performed.'" Clausen v. R.W. Gilbert Constr. Co., 309 N.W.2d 462, 467 (Iowa 1981) (quoting Rodrigues v. Elizabethtown Gas Co., 104 N.J.Super. 436, 250 A.2d 408, 413 (1969)). Thus a danger is not inherent in work "unless it attends the normal and usual method of doing the work."
To be an inherently dangerous activity, the danger must inhere "in the activity itself at all times, whether or not carefully performed." Rodriques v. Elizabethtown Gas Co., 104 N.J. Super. 436, 445, 250 A.2d 408, 413 (1969) (emphasis added). Gusts of wind do not rise to a section 413 "peculiar risk," but require "routine precautions, of a kind which any careful contractor could reasonably be expected to take."
Unquestionably the work was dangerous but not inherently so; indeed it seems clear that the accident occurred because of the manner or means whereby the work was being performed, that is, without the safeguards which plaintiff's employer was obliged to provide. See Rodrigues v. Elizabethtown Gas Company, 104 N.J.Super. 436, 250 A.2d 408 (1969). Finally, plaintiff argues that the deposition of one William Hassler should have been admitted into evidence but we agree with the Superior Court that it lacked probative value.