Klier v. Sordoni Skanska Const. Co.

• Decision Date: 26 January 2001
• Citation: 766 A.2d 761,337 N.J. Super. 76
• Parties: Robert KLIER, Sr. and Marianne Klier, husband and wife, Plaintiffs-Appellants, v. SORDONI SKANSKA CONSTRUCTION COMPANY, a Delaware Corporation, A.G. Mazzocchi, Inc. (for Discovery Purposes only), The Taubman Company (for Discovery Purposes only), The Prudential Realty Company (for Discovery Purposes only), Hobbs & Black Associates (for Discovery Purposes only) and Short Hills Associates (for Discovery Purposes only), Defendants-Respondents, and Sordoni Skanska Construction Company, a Delaware Corporation, Third-Party Plaintiff, v. A.G. Mazzocchi, Inc., Third-Party Defendant.
• Court: New Jersey Superior Court

766 A.2d 761

337 N.J. Super. 76

Robert KLIER, Sr. and Marianne Klier, husband and wife, Plaintiffs-Appellants, v. SORDONI SKANSKA CONSTRUCTION COMPANY, a Delaware Corporation, A.G. Mazzocchi, Inc. (for Discovery Purposes only), The Taubman Company (for Discovery Purposes only), The Prudential Realty Company (for Discovery Purposes only), Hobbs & Black Associates (for Discovery Purposes only) and Short Hills Associates (for Discovery Purposes only), Defendants-Respondents and Sordoni Skanska Construction Company, a Delaware Corporation, Third-Party Plaintiff, v. A.G. Mazzocchi, Inc., Third-Party Defendant.

Superior Court of New Jersey, Appellate Division.

Argued December 6, 2000.

Decided January 26, 2001.

Sidney Shaievitz argued the cause, Bloomfield, for appellants (Shaievitz & Berowitz, attorneys; Mr. Shaievitz, on the brief).

Daniel K. Newman argued the cause, West Orange, for respondent Sordoni Skanska Construction Company.

Respondents A.G. Mazzocchi, Inc., The Taubman Company, The Prudential Realty Company, Hobbs & Black Associates and

Short Hills Associates have not filed a brief.

Before Judges KEEFE, EICHEN¹ and STEINBERG.

The opinion of the court was delivered by STEINBERG, J.A.D.

Plaintiffs, Robert Klier, Sr. and Marianne Klier,² his wife, appeal from an order dismissing their complaint with prejudice as to defendant Sordoni Skanska Construction Company (defendant or Sordoni) "for failure to state a cause of action against defendant," and from the denial of their subsequent motion seeking to vacate the prior order and restore the case to the trial list. They also appeal from a previous interlocutory order that denied their application to have unrestricted ex parte communications with all former employees of A.G. Mazzocchi, Inc. (Mazzocchi), Charles Imbimbo, George Daniel and Robert Gordon, without the express consent of defendants' attorney. We reverse each order and remand for further proceedings.

This case arises out of a construction site accident. In January 1993, defendant entered into a contract with Prutaub Joint Venture, the owner of the mall at Short Hills, for demolition, asbestos removal, remodeling and expansion, preparation of three department store pads and the addition of three parking decks. In March 1993, defendant entered into a subcontract with Mazzocchi for certain demolition work.

On January 11, 1994, the day of the accident that led to this lawsuit, plaintiff was a laborer employed by Mazzocchi. He had been hired out of Laborer's Local Union 526. Although he had previously worked at the site for other subcontractors of Sordoni, it was his first day on the job for Mazzocchi. Plaintiff and Gordon, a laborer from the same union and local, were directed to report to Imbimbo, who was Mazzocchi's foreman. They were joined by Daniel, a carpenter hired out of Carpenter's Union Local 620 by Mazzocchi about a week and one-half before the accident. Plaintiff, along with Gordon, Daniel and Imbimbo were demolishing a large overhang or canopy on the south side of Bloomingdale's Department Store.³ The underside of the canopy was lath and mortar, with connection stringers wired to structural components. The demolition procedure involved the cutting of each wire and the use of wrecking bars, a sawsall, lump hammers and a two-by-four to pry away the soffit.

When the soffit was loose, partly lying on the ground, Imbimbo told plaintiff, Gordon and Daniel to remove tools that were lying under it. While they were doing so, and while plaintiff and Gordon were under the canopy, Imbimbo, without warning, started prying at the attached soffit with an eight or ten-foot two-by-four. The soffit suddenly broke loose and fell, hitting plaintiff, causing him to sustain serious personal injuries.

The case was scheduled for trial on September 29, 1998. On that date, immediately prior to trial, the judge to whom the case had been assigned stated that he had "serious concerns about the cause of action." Noting that the case would take approximately two weeks to try, the judge said, "[i]t seems to me that it would be good administration to determine whether there is a cause of action. At least in my view." The judge stated that he recognized that he could require the plaintiff to present his case, and, if there was a motion at the conclusion of plaintiff's case, he would "accept the truth of oral statements made on behalf of the plaintiff and ... draw all inferences which may reasonably be drawn against the motion to dismiss." He proposed to "shortcut that procedure and to have [plaintiff's attorney] put on the record the best case that he hopes to produce here. And I will apply the rule that I—that is applied at the conclusion of the plaintiff's case which I have already enunciated. And I will hear argument and make a determination as to whether or not, in my view, there is something which should go to the jury."

The judge said that he had used that procedure before and he felt, "[i]t is good administration from the judicial point of view. I also think it is good from the parties' point of view," since the trial would be long and expensive.

Although there appears to have been a discussion in chambers, off the record, regarding the procedure proposed by the judge, on the record plaintiff's attorney began to state his case without objection to the procedure. However, in the course of his argument, he stated that he was not "prepared to argue this motion" because he had not brought his file or the report of his expert. The argument was postponed to afford counsel an opportunity to prepare, and to submit his expert's report. On October 1, 1998, after hearing further argument, the motion judge refused to hold defendant, the general contractor, liable for the "egregiously stupid" act of Imbimbo, who was an employee of Mazzocchi, the subcontractor, who caused the canopy to collapse by prying at its soffit.

Plaintiffs filed a motion seeking reconsideration, supported by a supplemental engineering report. The judge heard oral argument on the motion, and noted that, "It strikes me that this [report] ... is a net opinion." The judge reserved decision and, without any further opinion, later entered an order denying the motion.

On this appeal, plaintiffs raise the following arguments:

POINT I THE TRIAL COURT'S PROCEDURE IN INITIATING AND CONDUCTING, SUA SPONTE, A PROCEDURE TO DISMISS PLAINTIFFS' CASE FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED WAS IMPROPER AND IS GROUNDS FOR REVERSAL

POINT II PLAINTIFFS' LIABILITY EXPERT'S REPORT AND SUPPLEMENTAL REPORT DID NOT CONSTITUTE NET OPINIONS

POINT III THE DISMISSAL OF THIS SUIT FOR FAILURE TO STATE A CAUSE OF ACTION SHOULD BE REVERSED WHERE:

A. THE RISK OF INJURY TO KLIER WAS REASONABLY FORESEEABLE

B. THE RELATIONSHIP OF THE PARTIES IMPLICATED WORKPLACE SAFETY CONCERNS

C. THERE WERE VIOLATIONS OF OSHA SAFETY REGULATIONS WHICH PROXIMATELY CAUSED PLAINTIFF'S ACCIDENT

D. THERE WERE OPPORTUNITIES TO TAKE CORRECTIVE MEASURES

E. THERE WERE VIOLATIONS OF SAFETY CODES AND STANDARDS WHICH PROXIMATELY CAUSED PLAINTIFF'S ACCIDENT

F. NEGLIGENT INSPECTION BY SORDONI WAS A PROXIMATE CAUSE OF PLAINTIFF'S ACCIDENT

G. SORDONI, AS THE SINGLE REPOSITORY OF RESPONSIBILITY FOR THE SAFETY OF ALL WORKERS ON THE PROJECT, HAD A NON-DELEGABLE DUTY TO MAINTAIN A SAFE WORKPLACE AND BORE RESPONSIBILITY FOR ALL OSHA VIOLATIONS

ON THE JOB; VIOLATION OF AN OBLIGATION IMPOSED BY OSHA PERTAINING TO SAFETY SUPPORTS A TORT CLAIM

POINT IV PLAINTIFFS' COUNSEL SHOULD HAVE UNRESTRICTED ACCESS TO ALL PRESENT AND FORMER EMPLOYEES OF MAZZOCCHI NOT REPRESENTED BY COUNSEL

We first consider plaintiffs' contention that the trial judge erred in sua sponte instituting the summary procedure and dismissing their complaint. We agree. Our rules of court must be "construed to secure a just determination, simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay." R. 1:1-2. The cornerstone of our judicial system is that justice is the polestar and the procedures utilized by the courts must "be moulded and applied with that in mind." N.J. Highway Authority v. Renner, 18 N.J. 485, 495, 114 A.2d 555 (1955). Our ultimate goal is not, and should not be, swift disposition of cases at the expense of fairness and justice. Rather, our ultimate goal is the fair resolution of controversies and disputes. R.H. Lytle Co. v. Swing-Rite Door Co., Inc., 287 N.J.Super. 510, 513, 671 A.2d 602 (App. Div.1996). Eagerness to move cases must defer to our paramount duty to administer justice in the individual case. Audubon Volunteer Fire Co. No. 1 v. Church Constr. Co., 206 N.J.Super. 405, 406, 502 A.2d 1183 (App.Div.1986). Stated another way, while the concepts of "judicial administration" and fairness are not necessarily incompatible, the desire to facilitate judicial administration must take a back seat to our primary goal which is to adjudicate cases fairly and impartially. Shortcuts should not be utilized at the expense of justice.

The minimum requirements of due process of law are notice and an opportunity to be heard. Doe v. Poritz, 142 N.J. 1, 106, 662 A.2d 367 (1995). The opportunity to be heard contemplated by the concept of due process means an opportunity to be heard at a meaningful time and in a meaningful manner. Ibid. Indeed, our rules of court contemplate that motions be made in writing. R. 1:6-2(a). Moreover, ordinarily, motions must be filed and served not later than sixteen days before a specified return date. R. 1:6-3(a). Our summary judgment rule requires a motion seeking that relief to be filed not later than twenty-eight days before the time specified for the return date. R. 4:46-1. In addition, a party seeking summary judgment must file a brief and, at the very minimum, a statement of material facts in support of the motion. R. 4:46-2(a). The purpose of these rules is obvious, that is, to afford the party against whom relief is sought notice...