Bergquist v. PentermanBergquist v. Penterman
Plaintiff, as administratrix ad prosequendum and general administratrix of the estate of Perr Robert Bergquist, brought an action in the Superior Court, Law Division, against George Penterman, a plumbing contractor, his employee Kivimage, and Point Pleasant Home Construction Company (hereinafter “Point Pleasant“) for damages for personal injuries to and the death of Bergquist because of their negligence. Decedent was fatally burned as the result of an explosion which occurred on October 13, 1955 while he was doing floor finishing work in a dwelling then under construction at defendant Point Pleasant‘s development. The matter was heard before a judge and jury. At the close of plaintiff‘s case Point Pleasant movеd for judgment of involuntary dismissal, which was granted. A similar motion, made on behalf of defendants Penterman and Kivimage, was denied. They then proceeded with their witnesses and at the conclusion of the entire case again moved for judgment. The motion was denied and the case submitted to the jury which, after extended deliberation, announced that it was hopelessly deadlocked, whereupon it was dismissed.
This court granted plaintiff‘s application for leave to appeal from the judgment of involuntary dismissal in favor of Point Pleasant. Similar leave was givеn defendants Penterman and Kivimage to appeal from the granting of that judgment, as well as from the denial of their own motions for judgments of involuntary dismissal.
At the time of the accident defendant Point Pleasant was engaged in the construction of a development known as Oak Park, located on a large tract it owned in Point Pleasant, N.J. It had completed and sold all the 26 homes comprising the first section of the development, and four in the second. Eight or nine houses were in various stages of completion. The company engaged no genеral contractor, but furnished the materials for the jobs and, through its secretary-treasurer Potter, arranged for the services of individual contractors at a fixed sum per house. These contractors furnished their own workmen, supplied incidental material, supplies, tools and equipment needed on the jobs, and generally exercised complete supervision over their respective employees and the manner in which the work was done.
Point Pleasant conducted its operations from a field office six blocks from the develoрment. Potter was in charge, with a Mrs. Wood acting in his absence. Schedules containing the job numbers of houses under construction and their tentative completion or delivery dates were posted on a bulletin board for the information of contractors who came to the office. Construction would start as soon as the company had purchase contracts for one or more dwellings. The schedule was a flexible one, the work of each contractor being governed by the progress of the work ahead of him. Generally, contractors worked at their own convenience, since they had jobs other than Point Pleasant‘s. In order to keep in touch with construction activities, they would ordinarily stop in at the office, or note the progress of other contractors, and begin work when they saw a house was ready for the job they had to do.
Potter testified that he coordinated the activities of all contractors so as to get a house completed at a certain time, if possible. As a completion date approached he would get in touch with contractors and pressure them to complete their jobs. He saw to it that the contractors “did their own
According to Potter, house No. 5, where the accident occurred, was handled no differently than any other dwelling in the Oak Park development. It had been sold to one Coulter and his wife, with occupancy promised for October 15, 1955. Coulter was very anxious to move in; as the date came closer he repeatedly requested Potter and those working on the job to do “whatever they could do to get me in my house.” He had directed that certain furniture and household appliances he had bought be delivered to the home on October 15.
Potter testified he had told Beaton, the floor finishing contractor, and Penterman, the plumbing contractor, that the house was promised for the 15th. He said that as of October 12 there remained to be done “some painting, paperhanging, floor finishing, some plumbing work * * * outside gutters * * * and the exterior grading.” Potter admitted the company was exerting effort to finish the house on time and that he may have talked to Beaton and Penterman on the 12th about finishing the house.
Penterman testified that Point Pleasant supрlied the boiler for the heating system but did not deliver it until October 12. He therefore could not do anything about connecting up the heating system before then. He worked on the 12th and had one more day‘s work to do. He said Potter or Mrs. Wood had told him to finish the plumbing work by October 13; the understanding was that the owners were to move in the next day.
The events of October 13 are of some significance and we proceed to detail them. Penterman and his plumbing helper,
Mrs. Wood testified she saw Beaton in the street “coming from House No. 5” that morning, and when he inquired, “Is this the house?” she said, “Yes, this is it.” Beaton himself could not remember seeing Mrs. Wood that morning or speaking with her, nor could he remember being at the house earlier in the day, or the conversation between Penterman and decedent. However, Penterman testified that when he was at the company office the following day he overheard a conversation between Potter and Mrs. Wood, in the course of which she said she had sent Beaton back on the job after he had left house No. 5.
Beaton recalled arriving at the house between 10 and 10:30 A.M. and seeing the Penterman truck parked there and Kivimage on the premises. Beaton and the decedent began sanding the floors. Kivimage knew of this operation because he saw one of the men operating a machine when he came up from the cellar to get materials from the truck, and he said he heard the machines from time to time during the course of the morning as he worked in the cellar. The floor sanding having been completed and the house swept,
Beaton further testified that in his floor finishing work in the various houses of the Point Pleasant development he used either lacquer or a sealer known as “Gymseal” which he believed was not flammable. He said he and decedent were applying lacquer on the afternoon of October 13, and had used the same type of flammable lacquer on 75% of the Point Pleasant houses over the eight- or nine-week period preceding that date, the period decedent worked for him.
It would appear that the windows in the three bedrooms where the lacquering was being done were closed and that some of the windows in the living room may have been open. The man рainting the kitchen sash and trim on October 13 testified he smelled the lacquer fumes and opened a kitchen window. Beaton testified that the usual procedure on a day like October 13 was to throw the windows open to get a good circulation of air during the lacquering operation. That was also the expert testimony of a building contractor, who said, further, that it was a standard safety practice not to use blow torches and flames when lacquer was being applied “unless real precautions are taken and it is an emergency.” He аlso stated that the accepted method used by plumbers was to place a piece of asbestos or tin between the beam and the pipe that was being soldered or sweated, to prevent charring the beam.
The explosion occurred about 2 P.M. while decedent was lacquering the front corner bedroom. At that moment
II.
We have comprehensively outlined the factual background of the appeal in light of the well settled principle that on a motion for involuntary dismissal the trial court must accept as true all evidence supporting the position of the party against whom the motion is made, and must give him the benefit of all inferences in his favor that may logically and legitimately be drawn therefrom. O‘Donnell v. Asplundh Tree Expert Co., 13 N.J. 319, 328 (1953).
Plaintiff makes the dual argument that (a) defendant Point Pleasant, as landowner in possession and control of the premises, is liable tо a workman for injuries resulting from a hazardous condition upon the premises, and (b) it was negligent in so coordinating the work that a plumber should be working with a torch in proximity with floor finishers working with flammable lacquer. She contends that the proofs at the close of plaintiff‘s case warranted the submission of the question of the company‘s liability on both theories to the jury. Defendants Penterman and Kivimage join in that argument.
The general rule is that an owner or occupier of premises who, by invitation, express or implied, induces a
It should be noted that the status of defendant Point Pleasant as owner and possessor of the premises in question is purely incidental. The controlling consideration is negligence — negligence in respect to the conduct of those who were participants, directly and indirectly, at the time and place of the fatal explosion. Cf. Cropanese v. Martinez, 35 N.J. Super. 118 (App. Div. 1955). Bergquist‘s injury and death were attributable to what was done in the course of completing the plumbing and floor finishing contract work, and not to a physical condition existing on the premises before the employee came upon the scene, as in the cases plaintiff cites: Mayes v. Splitdorf Electrical Co., above, 94 N.J.L. 460 (E. & A. 1920) (unguarded pit in boiler house); Fort v. Reid Ice Cream Co., 98 N.J.L. 559 (E. & A. 1923) (unguarded elevator shaft); Sutton v. Lerner Stores Corp., 10 N.J. Misc. 1126 (Sup. Ct. 1932) (unguarded pit in basement); or Meny v. Carlson, 6 N.J. 82 (1950) (faulty scaffold).
Generally, one who employs an independent contractor is not liable for injury occasioned by the latter‘s negligence or that of his employees. Meny v. Carlson, above, 6 N.J. at pages 97-98; 2 Restatement, Torts, § 409, p. 1100 (1934). A number of exceptions and apparent exceptions to this immunity have arisen. An employer will be held for his own wrong, Restatement, above, § 410, p. 1102; he may have been negligent in hiring unskillful and improper persons as contractors, Ibid., § 411, p. 1107; Healy v. Sayre, 113 N.J.L. 308, 311 (E. & A. 1934); giving the contractor poor instructions or faulty equipment, Restatement, Agency, § 213, p. 464 (1933); Torts, § 415, p. 1122; or failing in his duty to inspect the work which the contractor was employed to do, 2 Restatement, Torts, § 412, p. 1114. See, generally, 2 Harper and James, Law of Torts, §§ 26.1, 26.11, pp. 1362, 1405 (1956). The employer of an independent contractor will also be held liable if the work was of a kind which the employer should have recognized would during its progress necessarily create the danger of the mishap whiсh occurred, and thus contained or involved an unreasonable or peculiar risk of bodily harm to plaintiff unless special precautions were taken. 2 Restatement, Torts, §§ 413, 416, pp. 1118, 1128 (1934); cf. Sarno v. Gulf Refining Co., 99 N.J.L. 340, 344 (Sup. Ct. 1924), affirmed per curiam 102 N.J.L. 223 (E. & A. 1925); Terranella v. Union Building & Construction Co., 3 N.J. 443 (1950); Gibilterra v. Rosemawr Homes, Inc., above, 19 N.J. at page 171.
It is not necessary for us to deal with the interesting subject of vicarious liability, where A is held liable to C for
What we have here, on the other hand, is a case of liability for direct negligence on the part of the employer of the independent contractor — in short, liability for fault by Point Pleasant — whether or not there may also be vicarious liability for the fault of the independent contractor. A specific formulation of the rule applicable in this situation is to be found in 2 Restatement, Torts, § 414, p. 1120 (1934):
“One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for bodily harm to others, for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.” (Italics ours)
“* * * The employer may, however, retain control less than that which is necessary to subject him to liability as master. He may retain only the power to direct the order in which the work shall be done * * *. Such a supervisory control may not subject him to liability under the principles of Agency, but he may be liable under the rule stated in this Section unless he exercises his supervisory control with reasonable care so as to prevent the work which he has ordered to be done from causing injury to others.”
Here the jury could have found that Point Pleasant did control a part of the work, viz., the time when the floor finishing would be done and its coordination with the plumbing work. There was evidence from which it could have reasonably concluded that both the finishing of the floors with flammable lacquer and the use of the open torch flame near the ceiling of the cellar, close by the openings in the floor through which the heating pipes passed, were directed by Point Pleasant to be done on October 13. Here we recall what Penterman said about being directed to finish his work on October 13, as well as the testimony that Beaton had been directed to return to his floor finishing job on that date after he had left the house.
A jury question arose as to whether this control by Point Pleasant was exercised with reasonable care in view of the expert testimony that floor lacquer and an open flame were not safely to be used near each other. There was also the testimony that Point Pleasant, through Potter, knew or should have known that an open flame would be used by the plumber in annealing the pipe joints, and that it knew or should have known that flammable lacquer would be used in view of Beaton‘s testimony that he had used such lacquer in 75% of the houses in which he had done floor finishing for the comрany. Cf. Garland v. Townsend, 217 Mass. 297, 104 N.E. 731 (Sup. Jud. Ct. 1914); Reid v. Monmouth Oil Co., 42 N.J. Super. 355 (App. Div. 1956).
The principle of liability discussed under section 414 of the Restatement of Torts is treated in another way in Harper and James, op. cit., § 26.11, p. 1405, where it is
Gibilterra v. Rosemawr Homes, Inc., above, 19 N.J. 166 (1955), which the trial court relied on, is not in point. There is nothing in the opinion which suggests control or participation by the owner-developer in any way in the arrangements for the doing of the work there involved, or any other arguable culpable act or default by that defendant. The court did not discuss section 414 of the Restatement of Torts — it did cite sections 413 and 416 — and the problem which lies at the heart of this case was not even considered there. Cf. Trecartin v. Mahony-Troast Construction Co., 18 N.J. Super. 380 (App. Div. 1952), which, on principle, required submission to the jury of the question of Point Pleasant‘s liability under the proofs in the instant case.
We conclude that the trial court erred in granting Point Pleasant‘s motion for judgment of involuntary dismissal at the close of plaintiff‘s case.
III.
Turning now to the аppeal of defendants Penterman and Kivimage, they claim that plaintiff‘s proofs failed to show they were guilty of negligence and that their acts were the
The fact that defendant Penterman was absent from the house from the time he left early in the morning after laying out the day‘s plumbing work for Kivimage until after the explosion, is of no moment. He was the employer of Kivimage, and his responsibility for the latter‘s acts is, of course, grounded in the doctrine of respondeat superior.
On the question of negligence, the record is clear that Kivimage knew the floor finishers were at work. He saw one of them when he came up out of the cellar, and he heard them running the sanding machines during the morning. He knew generally the type of work floor finishers do. The jury could have found that he knew or had reason to know they applied some sort of sealer or lacquer as a floor finish following the sanding, and that as a reasonable man he would have taken precautions with an open acetylene torch flame. From the proofs that the cellar ceiling beams were charred, and the absence of evidence that Kivimage was using an asbestos or tin shield, the jury could have found he was negligent in not following the standard practice testified to by the building expert, that such a shield was the accepted method of procedure.
It is the traditional duty of the plaintiff in a negligence case to prove causal relation. There was enough in the case, both at the close of plaintiff‘s proofs and at the close of all the evidence, from which a jury could have concluded that Kivimage‘s torch ignited the lacquer fumes. Plaintiff was not obliged to establish proximate cause by direct, undisputable evidence. “The matter may rest upon legitimate inference, so long as the proof will justify a reasonable and logical inference as distinguished from mere speculation.” Beyer v. White, 22 N.J. Super. 137, 144 (App. Div. 1952). A weighing of the evidence is not permitted on a motion to dismiss. As was said in Stanley Co. of America v. Hercules Powder Co., 29 N.J. Super. 545, 554 (App. Div. 1954), reversed on other grounds, 16 N.J. 295 (1954):
“* * * If the record presents any evidence which would cause fairminded men to differ as to whether there was a reasonable probable relation of cause and effect between a tortfeasor‘s negligence and the alleged damage, the issue must be submitted to the jury for determination. Vadurro v. Yellow Cab Co. of Camden, 6 N.J. 102 (1950).”
Plaintiff‘s burden of proving proximate cause can be established by circumstantial evidence. Yormack v. Farmers’ Cooperative Ass‘n of New Jersey, Inc., 11 N.J. Super. 416, 424 (App. Div. 1951); Wegiel v. Hogan, 28 N.J. Super. 144, 156 (App. Div. 1953). The facts here logically and legitimatеly permitted an inference by the jury that the lacquer fumes were caused to explode by the open flame Kivimage was using near the cellar beams. Defendants suggest that the explosion may have been caused by the painter or the floor finishers smoking, although there is no testimony they were smoking while the lacquering work was going on. There is also a suggestion that the fumes might have been sparked by an electrical connection, although the testimony indicates the cables of the sanding machines had been disconnected at the time. But all this wаs for the jury, and before it could grant an award it had to be satisfied by the preponderance of the evidence that the hypothesis of causal connection advanced by plaintiff (the torch flame) between Kivimage‘s acts and decedent‘s injury and death was more reasonably probable than any other hypothesis (smoking or electrical spark) as to cause. Stanley Co. of America v. Hercules Powder Co., above, 29 N.J. Super. at page 554.
As for the issue of contributory negligence, it is to be observed preliminarily that where an injured person has lost his life as the result of an accident, there is a presumption he used due care for his own safety. Tate v. Costa, 29 N.J. Super. 527, 531 (App. Div. 1954); Bergmann v. Public Service Ry. Co., 98 N.J.L. 487, 488 (E. & A. 1923). It is also well settled that in order to justify dismissal of an action upon the ground of contributory negligence, plaintiff‘s negligence “must appear clearly and conclusively as a fact or as the necessary and exclusive inference that would be drawn by all reasonable men in the exercise of a fair and impartial judgment.” Bacak v. Hogya, 4 N.J. 417, 426-427 (1950); Battaglia v. Norton, 16 N.J. 171, 178-179 (1954). While it might be argued Beaton knew that Kivimage was on the premises and should have known he might possibly use a torch while down in the cellar, such knowledge cannot as a matter of law be imputed to decedent. Lechman v. Hooper, 52 N.J.L. 253 (Sup. Ct. 1890); Farrell v. Diamond Alkali Co., 16 N.J. Super. 163 (App. Div. 1951). There is absolutely no proof to show decedent knew Kivimage was on the premises at the time of the lacquering operation, or that he was to use a torch in connection with his work. As to whether the floor finishers were working with windows entirely closed and no cross-ventilation, there was a factual issue presented for jury determination not only as to the lack of such ventilation but also as to whether this condition contributed to the explosion.
On the question of assumption of risk, here again, any knowledge possessed by Beaton as to Kivimage‘s presence on the premises or that he might use an open flame cannot, on a motion for involuntary dismissal, be imputed to decedent. The conditions of which decedent was aware cannot be said to have suggested to him a clear and present danger from the lacquering work he was then doing. It is only where the evidence or the logical and legitimate inferences that can be drawn therefrom show clearly that decedent would actually appreciate the danger, that a judgment of involuntаry dismissal should be granted. Laragay v. East Jersey Pipe Co., 77 N.J.L. 516 (E. & A. 1909).
On the facts of the instant case, the inference of knowledge of a known or obvious danger cannot as a matter of law be attributed to decedent. A plaintiff will not be
The granting of Point Pleasant‘s motion for judgment of involuntary dismissal is reversed, and the denial of the motions made on behalf of Penterman and Kivi