Cahill v. Mundet Cork Corp.

• Decision Date: 16 November 1961
• Docket Number: No. A--506,A--506
• Parties: Charles CAHILL, Plaintiff-Respondent, v. MUNDET CORK CORPORATION et al., Defendants, and Clifford S. Evans, Inc., defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 410

70 N.J.Super. 410

175 A.2d 651

Charles CAHILL, Plaintiff-Respondent, v. MUNDET CORK CORPORATION et al., Defendants and Clifford S. Evans, Inc., defendant-Appellant.

No. A--506.

Superior Court of New Jersey

Appellate Division.

Argued Oct. 2, 1961.

Decided Nov. 16, 1961.

Robert E. Tarleton, Jersey City, for appellant (Beggans & Keale, Jersey City, attorneys; James P. Beggans, Jersey City, of counsel; Robert E. Tarleton, Jersey City, on the brief).

Francis Sorin, Jersey City, for respondent.

Before Judges GOLDMANN, FOLEY and LEWIS.

The opinion of the court was delivered by

LEWIS, J.A.D.

Defendant appeals from a final judgment of the Superior Court of New Jersey, Law Division, Hudson County, entered March 8, 1961 in favor of plaintiff, in the amount of a jury verdict of $30,000; and from an order of the court on March 27, 1961 denying a motion for judgment notwithstanding the verdict or, in the alternative, for a new trial as to all issues.

During the course of his employment, plaintiff fell from a ladder and, as a result thereof, suffered personal injuries. In his complaint for damages, he designated as defendants the Mundet Cork Corporation (owner of the property where the accident occurred), Clifford S. Evans, Inc. (general contractor engaged to enlarge owner's industrial plant), Roswell G. Smith, George C. Smith and Louise C. Smith, trustees for Cynthia Louise Smith, t/a Albert Smith's Sons, and William F. Hegarty, Inc. (subcontractors). There was a voluntary dismissal, with prejudice, on motion of plaintiff as to all defendants except the Evans Company.

In denying liability, appellant maintains: (1) plaintiff exceeded the bounds of his invitation; (2) the proximate cause of the accident was unconnected with appellant's acts or responsibility; and (3) plaintiff, as a matter of law, assumed any risk of danger.

Plaintiff was a foreman for the Concrete Plank Company, a subcontractor engaged by Evans to install a roof on a new building under construction on Mundet's premises. The accident occurred on plaintiff's first day at this work location--March 29, 1957. He and a fellow employee, one Angelo Carbonaro, arrived at the job that morning prepared to proceed with the installation of concrete planks on the steel roof frame of the building--a one story structure, approximately 15 feet high. The structural steel members (consisting of four-inch channel beams) had been erected, and the brick-wall work was completed exposing openings for a door and the windows.

The concrete planks had already been delivered to the job site. They were to be raised to the roof of the building by means of a hand derrick. Carbonaro was dispatched by plaintiff to the roof preparatory to hoisting thereto the hand derrick for use in lifting the planks. He made his ascent by way of a '12 or 14' foot ladder 'made of 2 4's and pieces of wood nailed.' This, he found resting against the interior wall of the building to the left of the doorway opening. Upon reaching the roof, he dropped a rope down to plaintiff who tied it to the bottom section of the derrick (this was one of two sections and weighed 80 to 100 pounds) whereupon Carbonaro proceeded to pull it upward. When the derrick section had reached the top of the wall, Carbonaro was unable to lift it over the parapet, which extended approximately two feet higher than the steel beams of the roof-line, so he called to Cahill for help. In going to his assistance, Cahill used the same ladder and, together, they lifted the equipment over the parapet resting it on the steel framework. Cahill testified:

'* * * I needed a piece of 2 4 to level it off and I was going down--started back and went down the ladder--started down the ladder to get this--* * * Well, when I got on the ladder, I don't recall whether I stepped down one step or two steps, and the ladder started to shake and when the ladder started to shake, I reached out to steady myself and I grabbed hold of this piece of steel and the steel fell down and brushed my arm and knocked me and the ladder down.'

This 'piece of steel' was a lintel consisting of two steel channels, 8 inches by 10 feet, which were bolted together to form one unit. Its total approximate weight was 380 pounds. The lintel had been removed from an old building on March 19, 1957 and, on the morning of the accident, had been installed in the new building by employees of Evans. James A. Gormley, Jr., who at the time of the mishap was an employee of Evans, testified that two men were working with the lintel that morning and he saw them 'hoist the lintel up over the top of the door,' after which the men left the area and 'there wasn't anybody else around there after that.' He said this work had been done approximately 15 minutes before he saw plaintiff (Cahill) on the job. The testimony of Frank Dam, a former superintendent for Evans, was that the lintel rested on the 'Bering-Pile lasters (bearing pilasters?), which was to support it' and it 'was balanced on the pilasters.'

As part of plaintiff's case, certain interrogatories propounded to appellant, and the answers thereto, were read to the jury. The answer to question No. 10 is significant 'The usual procedure followed in placing a steel beam into position, is by hoisting said beam into position and bolting or welding it into its permanent position. The hoisting and welding is done in one continuous operation until completion.'

Thomas J. Connolly, a construction expert and construction engineer, was produced as a witness for plaintiff and gave evidence that, 'The standard of steel construction as of--all the steel members that are erected on the building must be immediately tied in or tied down. In other words, they shall not be allowed to remain loose.' He defined a 'lintel' as 'the support that goes over the jamb of a door from one side of the door jamb to the other, or one side of a window to another. In other words, it carries the material above the window opening or above the door opening or the arch opening.'

The trial court was convinced that the ownership and control of the ladder had not been established and, accordingly, the jury was instructed to disregard the testimony relating to it. This determination was not challenged by cross appeal and its correctness need not here be considered. The issue of liability was submitted to the jury solely with reference to the lintel.

I.

Plaintiff, an employee of a subcontractor, was on the premises by the implied invitation of the Evans company (general contractor) which was bound to use reasonable care to see that the place where the work was to be performed was reasonably safe. Meny v. Carlson, 6 N.J. 82, 95, 77 A.2d 245, 22 A.L.R.2d 1160 (1950). This duty, coextensive with the invitation, was to 'exercise ordinary care to render the premises safe for the purposes embraced in the invitation.' Terranella v. Union Building and Construction Co., 3 N.J. 443, 448, 70 A.2d 753, 755 (1950). See also Murphy v. Core Joint Concrete Pipe Co., 110 N.J.L. 83, 164 A. 262 (E. & A. 1933). The fundamental principles of law laid down in these cases are not disputed by appellant, who emphasizes the cogent fact that the occupier's liability is circumscribed by the invitation, citing Phillips v. Library Co., 55 N.J.L. 307, 27 A. 478 (E. & A. 1893). This is a leading authority and has been consistently followed. Vide Ginnelly v. Continental Paper Co., 57 N.J.Super. 480, 489, 155 A.2d 154 (App.Div.1959), certification denied 31 N.J. 293, 157 A.2d 363 (1960); Benton v. Y.M.C.A., 27 N.J. 67, 70, 141 A.2d 298 (1958); Lokar v. Church of the Sacred Heart, 24 N.J. 549, 552, 133 A.2d 12 (1957); Terranella v. Union Building and Construction Co., supra, 3 N.J. at p. 448, 70 A.2d 753; Griffin v. De Geeter, 132 N.J.L. 381, 382, 40 A.2d 579 (E. & A. 1945).

The settled rule in the Phillips case is clear and beyond question. Our immediate concern is with its application to the factual status peculiar to the instant case. In Nary v. Dover Parking Authority, 58 N.J.Super. 222, 229, 156 A.2d 42 (App.Div.1959), this court noted that the area of invitation 'includes those parts of the premises to which the invitee reasonably may be expected to go,' citing 38 Am.Jur., Negligence, § 100 (1941); 65 C.J.S. Negligence § 48 (1950); Roy v. Amoskeag Fabrics, Inc., 93 N.H. 324, 41 A.2d 607 (Sup.Ct.1945). In discussing the subject of 'invitation,' Prosser on Torts (2d ed. 1955), § 78, p. 458, says: '* * * and it extends to all parts of the premises to which the purpose may reasonably be expected to take him, and to those which are so arranged as to lead him reasonably to think that they are open to him.' Stated in another way: 'It (the invitation) may extend to such other parts of the premises as may be visited by the invitee for a purpose reasonably incidental to that for which the invitation was extended.' 4 Shearman and Redfield on Negligence (rev. ed. 1941), § 779, p. 1787.

The theory advanced by appellant is that plaintiff used the premises in a manner never authorized or intended, and that the accident did not occur within the limits of the invitation. Thus, there is a factual disputation as to the scope of the invitation--an issue ordinarily to be resolved by a jury, the trier of facts. Reiter v. Max Marx Color & Chemical Co., 67 N.J.Super. 410, 170 A.2d 828 (App.Div.1960), affirmed 32 N.J. 37, 40, 170 A.2d 785 (1961); Williams v. Morristown Memorial Hospital, 59 N.J.Super. 384, 389, 157 A.2d 840 (App.Div.1960); Gudnestad v. Seaboard Coal Dock Co., 15 N.J. 210, 219, 104 A.2d 313 (1954); Hendrikson v. Koppers Co., Inc., 11 N.J. 600, 606, 95 A.2d 710 (1953); Constantine v. Delaware, L. & W.R.R. Co., 12 N.J.Misc. 518, 172 A. 803 (Sup.Ct.1934). But see Heuser v. Reilly, 128 N.J.L. 533, 27 A.2d 4 (Sup.Ct.1942), affirmed per curiam (sub. nom. Heuser v. Turteltaub) 129 N.J.L. 388, 30 A.2d 27 (E. & A. 1943); Ryerson v. Bathgate, 67 N.J.L. 337, 51 A. 708, 57 L.R.A. 307 (E. & A. 1902); An...