Majestic Realty Associates, Inc. v. Toti Contracting Co.

• Decision Date: 06 July 1959
• Docket Number: No. A--139,A--139
• Parties: MAJESTIC REALTY ASSOCIATES, INC., and Bohen's, Inc., Plaintiffs-Respondents, v. TOTI CONTRACTING CO., Inc., a corporation of the State of New Jersey, Defendant, and Parking Authority of the City of Paterson, New Jersey, Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 425

30 N.J. 425

153 A.2d 321

MAJESTIC REALTY ASSOCIATES, INC., and Bohen's, Inc., Plaintiffs-Respondents, v. TOTI CONTRACTING CO., Inc., a corporation of the State of

New Jersey, Defendant,

and

Parking Authority of the City of Paterson, New Jersey,

Defendant-Appellant.

No. A--139.

Supreme Court of New Jersey.

Argued June 5, 1959.

Decided July 6, 1959.

Irving C. Evers, Hackensack, argued the cause for defendant-appellant, Parking Authority of the City of Paterson (George A. Vaccaro, Paramus, attorney).

Joseph J. DeLuccia, Paterson, argued the cause for plaintiffs-respondents (Edward G. Weiss, Paterson, attorney).

The opinion of the court was delivered by

FRANCIS, J.

Plaintiffs Majestic Realty Associates, Inc., and Bohen's Inc., owner and tenant, sought compensation from defendants Toti Contracting Co., Inc. and Parking Authority of the City of Paterson, New Jersey, for damage to Majestic's building and to Bohen's goods. The claim arose out of the activity of Toti in demolishing certain structures owned by the Authority. In the trial court, the action against the Authority was dismissed at the close of the plaintiffs' proof on the ground that Toti was an independent contractor for whose negligence the Authority could not be held responsible. The issue of the contractor's liability was submitted to the jury, which returned substantial verdicts for both plaintiffs. Majestic and Bohen's appealed from the dismissal in favor of the Authority. Toti did not seek a review. The Appellate Division by a vote of two to one reversed and ordered a new trial. 54 N.J.Super. 419, 149 A.2d 288 (1959). The matter is now before us as of right for final determination. R.R. 1:2--1(b).

Majestic is the owner of the two-story premises at 297 Main Street, Paterson, New Jersey. Bohen's is the tenant of the first floor and basement thereof in which it conducted a dry goods business. The Authority acquired properties along Main Street beginning immediately adjacent to Majestic's building on the south and continuing to Ward Street, the next intersecting street, and then east on the latter street for 150 feet. The motive for the acquisition was to establish a public parking area. Main Street is one of the principal business arteries of the city and the locality was completely built up.

Accomplishment of the Authority's object required demolition of the several buildings on both streets. Some time prior to October 26, 1956, a contract was entered into by the Authority with Toti to do the work. The razing began on the Ward Street side and moved northwardly until the structure next to Majestic's premises was reached. It was at least a story (about 20 feet) higher than Majestic's roof the northerly wall of the one was 'right up against' the southerly wall of the other and the two walls ran alongside each other for 40 feet.

In the process of leveling this adjacent building, the contractor first removed the roof, then the front and south sidewalls and all of the interior partitions and floors. Thus, the north wall of brick and masonry next to Majestic's structure was left standing free. Expert testimony was adduced to show that the proper method of demolition under the eixsting circumstances would have been to remove the roof, leaving the interior partition work for support, and to begin to take the north wall down 'never leaving any portion (of it) at a higher point than the interior construction of the building would form a brace.'

In demolishing the walls, Toti used a large metal ball, said to weigh 3,500 pounds, suspended from a crane which was stationed in the street. There was testimony that during the week prior to the accident, every time the ball would strike a wall, debris and dirt would fly and the Majestic building 'rocked.'

Further expert testimony indicated that in dealing with the free-standing north wall, the ball should have been made to hit the very top on each occasion so as to level it a few bricks at a time. This course was followed at first; the ball was swung from north to south and the dislodged bricks were catapulted away from Majestic's building and onto the adjoining lot. After a time, work ceased for a few minutes. On resumption, the operator of the crane swung the ball in such a manner that it struck at a point some 15 feet below the top of the wall. The impact propelled the uppermost section of the wall back in the direction from which the blow had come with the result that a 15 by 40 foot section fell on Majestic's roof, causing a 25 by 40 foot break therein. One of Bohen's employees, who saw the incident, asked the crane operator in the presence of Toti's president: 'What did you do to our building?' He replied, 'I goofed.'

In characterizing a demolition undertaking of this type in a built up and busy section of a city, and in particular where one building to be razed adjoined another which was to remain untouched, plaintiffs' expert witness said it was 'hazardous work'; 'one of the most hazardous operations in the building business.' And with reference to the leveling of a building so close to another structure which was not to be harmed, he asserted that the recognized procedure is to take it down in small sections so as not to lose control of the operation. This standard conforms with N.J.S.A. 34:5--15 which specifies that '(i)n the demolition of buildings, walls shall be removed part by part.'

On the proof outlined, the trial court recognized that the work was hazardous in its very nature, but did not feel that it constituted a nuisance Per se. Therefore, he ruled that the Authority, not having had or exercised control over the manner and method or means of performing the demolition operation, could not be held for the negligent act of its independent contractor. The majority of the Appellate Division took the position that where the activity contracted to be undertaken is such that potential danger exists regardless of reasonable care on the part of the contractor, the land-owner cannot, by contractual delegation, immunize himself against liability for negligence of the contractor which causes injury to a member of the public or to an adjoining property owner. The dissent expressed the view that under the evidence the mishap resulted from a negligent failure to follow the standard procedure for the destruction of the wall and not from a danger which inhered in the work itself regardless of the exercise of care. Thus, it was declared that the contract protected the Authority against liability for Toti's negligence in the performance of the work. It remains for this court to search out the just rule to be applied in the circumstances.

The problem must be approached with an awareness of the long settled doctrine that ordinarily where a person engages a contractor, who conducts an independent business by means of his own employees, to do work not in itself a nuisance (as our cases put it), he is not liable for the negligent acts of the contractor in the performance of the contract. Terranella v. Union Bldg. & Construction Co., 3 N.J. 443, 446, 447, 70 A.2d 753 (1950); Mann v. Max, 93 N.J.L. 191, 193, 107 A. 417, 21 A.L.R. 1227 (E. & A. 1919); Cuff, Adm'x, v. Newark & New York R.R. Co., 35 N.J.L. 17 (Sup.Ct.1870), affirmed 35 N.J.L. 574 (E. & A. 1871). Certain exceptions have come to be accepted, I.e., (a) where the landowner retains control of the manner and means of the doing of the work which is the subject of the contract; (b) where he engages an incompetent contractor, or (c) where, as noted in the statement of the general rule, the activity contracted for constitutes a nuisance Per se. Terranella v. Union Bldg. & Construction Co., supra; Bergquist v. Penterman, 46 N.J.Super. 74, 134 A.2d 20 (App.Div.1957), certification denied 25 N.J. 55, 134 A.2d 832 (1957); Trecartin v. Mahony-Troast Construction Co., 18 N.J.Super. 380, 87 A.2d 349 (App.Div.1952).

In the present case, the suggestion is made that the language of the contract reveals a retention of control by the Authority of the method of Toti's performance sufficient to warrant the application of principles of Respondeat superior in the interest of injured third persons. Our examination of the document convinces us otherwise. The plain import of the provisions is not to confer on the Authority the right to say how the job shall be done; the reservation is limited to supervision for the purpose of seeing that the work is done in accordance with the contract and specifications. The supervisory interest relates to the result to be accomplished, not to the means of accomplishing it. Giroud v. Stryker Transportation Co., 104 N.J.L. 424, 140 A. 305 (E. & A. 1928); Trecartin v. Mahony-Troast Construction Co., supra, 18 N.J.Super. at page 386, 87 A.2d at page 351.

As to exception (b), noted above, it is not claimed that the proof makes out a jury question on the charge that an incompetent contractor was hired for the task of demolition. Incidental comment thereon, however, may be fruitful.

It has been intimated that the matter of the competency of a contractor should not be restricted to considerations of skill and experience but should encompass financial responsibility to respond to tort claims as well. See 2 Harper and James, The Law of Torts (1956) § 26.11, p. 1405; Prosser, Torts (2d ed. 1955) pp. 357--358; Morris, 'Torts of Independent Contractors,' 29 Ill.L.Rev. 339, 344 (1934); Steffen, 'Independent Contractor and the Good Life,' 2 Univ. of Chicago L.Rev. 501, 505 (1935). Research has not disclosed a case where the proposal has been applied. The matter was broached in Lawrence v. Shipman, 39 Conn. 586 (Sup.Ct.Err.1873), involving a claim arising out of the negligence of a masonry contractor. There, the court said:

'I am not prepared to say that this fact (financial irresponsibility of the contractor) may not be of some weight where the work to be done is hazardous to others. If a person having an interest in a job which...