Hardman v. Ford Motor Co.

• Decision Date: 16 November 1961
• Docket Number: A--969,Nos. A--962,A--968,s. A--962
• Parties: Chester B. HARDMAN, Plaintiff-Respondent, v. FORD MOTOR COMPANY, etc., and Baton Construction Company, etc., Defendants-Appellants.
• Court: New Jersey Superior Court — Appellate Division

Page 275

70 N.J.Super. 275

175 A.2d 455

Chester B. HARDMAN, Plaintiff-Respondent, v. FORD MOTOR COMPANY, etc., and Baton Construction Company,

etc., Defendants-Appellants.

Nos. A--962, A--968, A--969.

Superior Court of New Jersey

Appellate Division.

Argued Sept. 25, 1961.

Decided Nov. 16, 1961.

Samuel P. Orlando, Camden, for defendant-appellant, Ford Motor Co., etc. (Aaron Dines, Morristown, on the brief).

Peter J. Devine, Jr., Camden, for defendant-appellant, Baton Const. Co., etc. (Kisselman, Devine, Deighan & Montano, Camden, attorneys; Peter J. Devine, Jr., Camden, of counsel; Michael Patrick King, Camden, on the brief).

Michael J. Piarulli, Camden, for third-party defendants-appellants, William E. Snell, Inc., etc and others.

Charles A. Cohen, Camden, for plaintiff-respondent (Plone, Tomar, Parks & Seliger, Camden, attorneys; William Tomar, Camden, of counsel; Charles A. Cohen, Camden, on the brief).

Before Judges CONFORD, FREUND and LABRECQUE.

The opinion of the court was delivered by

FREUND, J.A.D.

Plaintiff, an employee of an electrical contractor on a construction project, was injured when a ladder he was climbing to get access to a loft slipped and fell to the floor. This is an appeal from a judgment in favor of the plaintiff, following a jury verdict of $55,000 for personal injuries, against Ford Motor Company (Ford), the owner of the premises, and Baton Construction Company (Baton), the general contractor. Plaintiff's employer, William E. Snell, Inc., and/or William E. Snell and Mae Snell, t/a William E. Snell Company (Snell), was made a third-party defendant by defendant Baton. It appeals from the jury's special verdict finding it negligent.

Plaintiff filed his complaint against Ford and Baton and also a claim against the third-party defendants, Charles Riley, t/a Charlie's Window Cleaning Service (Riley), an independent contractor, and C. J. McGonigal Plumbing, Heating & Industrial Piping Contractor, Inc. (McGonigal), a subcontractor, in which he asserted their negligence. Ford cross-claimed against Baton on an indemnification agreement, and filed a third-party complaint against Riley for indemnification and contribution. Baton filed a third-party complaint against McGonigal for indemnification and contribution and, as noted above, against Snell for indemnification. The trial judge directed the entry of a judgment of dismissal with prejudice of Baton's third-party complaint against McGonigal at the end of the trial. A similar judgment was entered on plaintiff's claim against Riley when Hardman conceded he could not prove him negligent. Questions of indemnity as to the other defendants were reserved for subsequent disposition and are not involved on this appeal.

In August of 1956 Ford began the construction of its Delaware Valley Parts Depot on Route 130 in the Township of Pennsauken, N.J. Ford independently contracted for the structural steel and its erection directly with Samuel A. Lindstrom Co., but engaged Baton as general contractor for the remainder of the construction. Baton subcontracted much of the work, retaining only the finishing work and the carpentry work. Among its subcontractors were Snell, who performed the electrical work; McGonigal, who installed the air conditioning equipment; and Baton Structure and Foundation Co., an affiliate of defendant Baton, who did the concrete work, including the foundations, footings and general floor slab.

By the summer of 1957 the plant was in its final stages of construction. In the latter part of August Ford, with Baton's permission, entered into possession of a nearly completed room designated as the cafeteria. Desks and chairs had been unpacked there for the use of Ford employees charged with keeping records of material received at the plant. Cafeteria tables and chairs were installed for the convenience of employees of Ford and the contractors who wished to use the area for eating purposes. Food vending machines were also installed. After Ford moved into the cafeteria, its maintenance force was assigned to cleaning the floor, the tables and chairs.

The cafeteria was approximately 12 feet high from the floor to an acoustical, false or hung ceiling. There was an additional 8 feet of space above the ceiling under the roof. McGonigal had installed, in this space, on a platform adjacent to the eastern wall, a commercial size air conditioning unit, 5 feet high and 7 or 8 feet long. There was a light near the unit sufficient to enable the making of adjustments on the controls. Access to the space above the ceiling was provided by a permanent iron ladder fixed to the western wall of the cafeteria, but the only approach to the air conditioning unit from the top of that ladder was by balancing oneself and walking across the ceiling over the 'I' beams. During the period in question, more convenient access to the unit was provided by a temporary ladder which reached from the floor of the cafeteria through a temporary opening or scuttle hole in the ceiling. It was possible to step directly from this ladder onto the air conditioner platform. The ladder was in position for several months and had been used by other workmen, as well as by the electricians who worked on the air conditioner.

The ladder, described as makeshift, was constructed of wood 2 4s as rails, with 1 3 rungs that were nailed on to the rails. It was not the type of finished product sold in a hardware store, but was tailor-made on the site to suit a particular need. There is no dispute that the ladder itself was safe, strong and of good workmanship. There were, however, no rubber shoes on the bottom of the rails.

There is no direct evidence to indicate who built the ladder. Testimony, especially that of Paul J. Kelly, business manager of Local Union 439, International Brotherhood of Electrical Workers, and an officer of the Camden County Building Trades, pointed to Baton as a possible source. When shown a picture of the ladder, Kelly stated that carpenters of the general contractor (Baton) would normally construct and furnish a ladder of that type. He added that the custom of the trade was for the general contractor to provide access, by use of a ladder, from one level to another and that the cafeteria, because it had a false ceiling, was a two-level room. He further testified that the fabrication of a ladder for use on a job would normally be by carpenters and that on this particular job the carpenters were supplied by the general contractor. He pointed out that union conditions and the normal distribution of labor among building trades prevailed during the construction of this job. This testimony was contradicted by Ralph Hanson, a carpenter foreman employed by Baton, who stated that employees of other subcontractors who were members of the carpenters' union could build the ladder in question without violating union practices or regulations.

William Scarle, Snell's foreman for five years, also testified that only carpenters would construct a ladder of the kind used in the cafeteria. He corroborated the testimony of Kelly that it was the custom for the general contractor to provide access for various tradesmen who are required to work on different levels in a building. But he disagreed that a room with a false ceiling has two levels. He did not expect, nor did he request, the general contractor to provide a ladder for installation of the electrical work. It is implied in Scarle's testimony that in laying the wiring and power lines in the cafeteria, the electricians used their own ladders.

John S. Keough, a superintendent for Baton, stated he never expected, nor was he called upon by any subcontractor, to furnish a ladder for work in the lunchroom. Thomas R. Null, Jr., who succeeded Keough as superintendent, denied Baton had built the ladder. He did testify, however, that he saw the ladder in the cafeteria for three months. Hanson, the Baton foreman who had 20 to 25 carpenters working for him on this job, stated he never ordered the construction of the type of ladder used in the lunchroom. He conceded seeing a ladder in the cafeteria but could not describe its appearance. He also conceded that on a construction job where there are more than one subcontractor, it is the custom for the general contractor to provide access to different levels. None of the other witnesses knew who provided the ladder and all possible suspects denied they had manufactured it.

The floor of the cafeteria was concrete slab, covered with vinyl asbestos tile that had been laid and waxed by Johns-Manville, the flooring contractor, shortly before Ford moved into the room. Ford hired Riley soon thereafter to 'clean tile and take out all scratches and black marks with steel wool' and with 'one coat of wax * * * buff with machine to a high lustre.' Riley performed the work on September 15 and 16. After the floor was scrubbed, he applied a hard forming wax, and with a machine 'buffed to a high lustre.' Riley described the waxed floor as having a sheen and added that, 'It had to be slippery because it had wax on it.' He also recalled waxing around a large object in the area below the crawl space but could not remember if that object was a ladder or a vending machine. When Riley had completed his work, Ford employees inspected the job. The bill for the work was received in evidence and is signed by a Ford employee indicating that the work was completed and satisfactory.

On September 18, Snell had only to remove some temporary lines, replace some cover plates, prepare a directory of the lighting panels and make some final adjustments on the air conditioner. Hardman, an electrician and a subforeman for Snell who had been working at the plant for five months, entered the crowded cafeteria to adjust the malfunction of a solenoid valve in the air conditioner. He used the ladder in question to climb up through the scuttle hole. He testified, 'I looked at the ladder and got a hold of the ladder and it...