Bonczkiewicz v. Merberg Wrecking Corp.

• Decision Date: 18 July 1961
• Citation: 148 Conn. 573,172 A.2d 917
• Court: Connecticut Supreme Court
• Parties: Stanley BONCZKIEWICZ, Administrator (ESTATE of Edward J. BONCZKIEWICZ), et al. v. MERBERG WRECKING CORPORATION et al. Supreme Court of Errors of Connecticut

Page 917

172 A.2d 917

148 Conn. 573

Stanley BONCZKIEWICZ, Administrator (ESTATE of Edward J.

BONCZKIEWICZ), et al. v. MERBERG WRECKING CORPORATION et al.

Supreme Court of Errors of Connecticut.

July 18, 1961.

Donald F. Keefe, New Haven, for appellants (defendants Feinstein and others).

Charles G. Albom, New Haven, with whom were Herbert Watstein, Bristol, and, on the brief, Frank L. Vecchiolla, Meriden, for the appellees (named plaintiff and others).

Before BALDWIN, C. J., and KING, MURPHY, SHEA and BORDON, JJ.

KING, Associate Justice.

The plaintiffs Pearl Bonczkiewicz, Phyllis Young, Ronald Bonczkiewicz, a minor, and Vicky Lee Young, also a minor, sued to recover damages for personal injuries, and the plaintiff Stanley Bonczkiewicz, as administrator of the estate of Edward J. Bonczkiewicz, a deceased infant, sued to recover damages for the decedent's wrongful death. The injuries and death were claimed to have been caused by the negligence of the defendants in the demolition of a building on West Main Street, in Meriden, in the heart of the retail shopping district. There was little difference in the claims of proof of the parties as to most of the circumstances of the accident. The interior of the building had been almost completely destroyed by fire on April 3, 1958. The walls, especially the front wall which immediately abutted the public sidewalk, were so weakened that they were in danger of falling unless demolished.

After the fire, Louis Merberg of the Merberg Wrecking Corporation approached George Kaplan, principal officer of a tenant, Growers' Exchange, Inc., hereinafter referred to as Growers. It conducted a supermarket which was the largest of the five retail stores which had occupied the building. Kaplan was a brother-in-law of the defendant Sarah Kaplan, who, with the defendant Celia Feinstein, owned the building. Louis Merberg, on behalf of the wrecking corporation, sought the job of razing the remains of the buildings. George Kaplan negotiated with Merberg the contract of demolition quoted below. ¹ The defendants Sarah Kaplan and Celia Feinstein, in their answer, denied the allegation in the complaint that they had engaged the Merberg Wrecking Corporation to demolish the building. The contract is in the form of a letter from Merberg Wrecking Corporation which purports to have been addressed to the defendants Sarah Kaplan and Celia Feinstein and to have been accepted by them, although their actual signatures do not appear on the acceptance. The original defendants in this action were Sarah Kaplan, Celia Feinstein, the Merberg Wrecking Corporation, Louis Merberg Growers, and the city of Meriden. For the purposes of this appeal, it is unnecessary to differentiate between Louis Merberg and Merberg Wrecking Corporation, and for convenience the corporation will be referred to as Merberg.

Merberg erected a plywood fence, about six feet high, along the inner edge of the sidewalk. At about this time, ropes which had been placed around the sidewalk to prevent pedestrians from using it were taken down by parties unknown, so that the sidewalk was thereafter left open to pedestrian travel. On the date of the accident, April 18, 1958, some days after demolition under the contract had begun, one unsupported pillar of the front wall remained standing near the inner edge of the sidewalk. The plaintiffs, apart from the plaintiff administrator, parked their car in the vicinity and walked along the sidewalk. There were no signs warning against pedestrian use of the walk. The infant decedent, Edward Bonczkiewicz, was being wheeled by his mother, Pearl, in his carriage. The plaintiff Phyllis Young looked through a hole in the fence and saw a crane pushing debris against the fence. Alarmed, she went to Pearl, urging that they all leave the scene. At this moment, the remaining upright pillar toppled over onto the fence and fell with it and through it onto the sidewalk, crushing the infant Edward to death and injuring the others.

During the course of the trial, the plaintiffs orally agreed to give covenants not to sue to (a) Merberg Wrecking Corporation and Louis Merberg, (b) the city of Meriden, and (c) Growers, with the express oral understanding with each of these covenantees that when the written covenants not to sue had been finally drafted and executed, they would contain express reservations of rights in the plaintiffs against the defendants Celia Feinstein and Sarah Kaplan, the owners of the building. Subsequently, such covenants were drawn and executed. At the time the oral agreements as to the covenants were made, the defendants Celia Feinstein and Sarah Kaplan warned Merberg that they would look to it for indemnification if judgment in this case ran against them. Thereafter, the trial continued against the defendants Celia Feinstein and Sarah Kaplan only, and they are hereinafter referred to as the defendants. The total of the amounts received by the plaintiffs under the covenants was $40,000, of which $36,000 was paid by Louis Merberg and the Merberg Wrecking Corporation. The court instructed the jury to deduct, in arriving at the amount of damages recoverable by a given plaintiff, the payments received by him or her. No complaint is made of the charge in this respect. Quite obviously, it was as a consequence of this instruction that the jury returned a defendants' verdict in the case of the plaintiff Ronald Bonczkiewicz and in that of the plaintiff Vicky Lee Young. See Dwy v. Connecticut Co., 89 Conn. 74, 95, 92 A. 883, L.R.A.1915E, 800.

The jury returned a verdict against the defendants in favor of the plaintiff Pearl Bonczkiewicz in the amount of $8000, in favor of the plaintiff Phyllis Young in the amount of $8000, and in favor of the plaintiff Stanley Bonczkiewicz, as administrator of the estate of the deceased infant, in the amount of $6500. From the judgments entered on these verdicts, the defendants have taken this appeal. Their main claim, as stated in their brief, is that the covenant not to sue Merberg operated, as a matter of law, to release them, as owners of the building, from any liability to any of these plaintiffs. Two further claims are that the employment of a financially responsible independent contractor under the contract in this case removed from the defendants any duty of protecting third parties and left that duty entirely on the independent contractor and that the charge was erroneous in leaving to the jury the question whether the demolition in this case was in fact a hazardous undertaking even if it was done with due care and in accordance with the contract provisions. For convenience, we consider the latter claims first.

The court charged that Merberg's relationship to the defendants was that of an independent contractor and that there would be no liability on the part of the defendants for injuries caused by Merberg's negligence in carrying out the contract. See Millstone Corporation v. Laurel Oil Co., 131 Conn. 636, 639, 41 A.2d 711; Jacob v. Mosler Safe Co., 127 Conn. 186, 189, 14 A.2d 736; Alexander v. R. A. Sherman's Sons Co., 86 Conn. 292, 299, 85 A. 514; Lawrence v. Shipman, 39 Conn. 586, 589. The court also charged upon and left to the jury the question whether the contract called for work of a character such that, even if it was duly performed, it would obviously and naturally, even though not necessarily, expose pedestrians on the sidewalk to probable injury unless preventive measures were taken. The court further charged the jury that if they found that the work was of that character and that the defendants knew or in the exercise of reasonable care should have known it and negligently failed to take preventive measures or cause them to be taken, the defendants would be liable for the injuries proximately caused by their negligence. The charge here followed our law as laid down in cases such as Millstone Corporation v. Laurel Oil Co., supra; Campus v. McElligott, 122 Conn. 14, 18, 187 A. 29; Alexander v. R. A. Sherman's Sons Co., supra; Norwalk Gaslight Co. v. Borough of Norwalk, 63 Conn. 495, 528, 28 A. 32; see note, 23 A.L.R. 1055.

Contrary to the defendants' claim, there was evidence from which the jury could find that even though the demolition work was done with reasonable care and in accordance with the terms of the contract, the proximity to the public sidewalk of the standing front wall made the demolition of the wall a task which would obviously and naturally, even if not necessarily, expose pedestrians to probable injury from being struck by falling parts, unless preventive measures were taken. Although the jury could find that the fence as erected was in conformity with the contract requirement, they could also find that the fence, though adequate to keep pedestrians from straying into the area in which demolition was taking place, was inadequate to prevent heavy portions of the building from falling outside the area of demolition and onto the sidewalk, and that further preventive measures should have been taken to guard against such an occurrence, measures such as roping off or otherwise closing the sidewalk to pedestrian travel or erecting steel sheds over the sidewalk. The defendants'...