Miller v. Muscarelle
| Decision Date | 01 May 1961 |
| Docket Number | No. A--551,A--551 |
| Citation | 170 A.2d 437,67 N.J.Super. 305 |
| Parties | Mary MILLER, Administratrix Ad Prosequendum of Russell Miller, deceased, Plaintiff-Appellant, v. Joseph L. MUSCARELLE, Charles W. Muscarelle, George Fields, and Arthur Fowler, Defendants-Respondents. |
| Court | New Jersey Superior Court — Appellate Division |
Raymond Chasan, Jersey City, for appellant (Warren, Chasan & Leyner, Jersey City, attorneys).
Theodore W. Geiser, Newark, for respondents Joseph L. Muscarelle and Charles W. Muscarelle (Shaw, Pindar, McElroy, Connell & Foley, Newark, attorneys).
James A. Major, Hackensack, for respondents George Fields and Arthur Fowler (James I. Toscano and James A. Major, II, Hackensack, attorneys).
Before Judges CONFORD, FREUND and KILKENNY.
The opinion of the court was delivered by
CONFORD, S. J. A. D.
Plaintiff brought this action in her representative capacity seeking damages for the wrongful death of her intestate, Russell Miller, who died September 4 1956 in an accident while working as a laborer on a construction project being executed by his employer, Jos. L. Muscarelle, Inc., at Paramus. The employer is not a defendant having discharged its legal obligation to the family of the decedent in accordance with the Workmen's Compensation Act, R.S. 34:15--1 et seq., N.J.S.A.
The defendants here are Fields, foreman of the labor crew of which Miller was a member when the accident occurred; Arthur Fowler, manager in over-all charge of the particular construction project; Charles W. Muscarelle, general superintendent on the job but under Fowler in authority thereon, although a director, officer and stockholder of the corporate employer; and Joseph L. Muscarelle, president, executive head and principal stockholder of the corporation. It is claimed by plaintiff that all of these were in one respect or another chargeable with negligence causative of the fatal accident and therefore individually liable to the plaintiff in tort for damages in compensation for the wrongful death. Plaintiff assented to an involuntary dismissal as to two other stockholder-executives of the concern, Burghardt and Collins, originally made defendants. At the conclusion of plaintiff's proofs the trial court granted motions for involuntary dismissal as to all the remaining defendants. This appeal is from that ruling.
The construction job here involved was the erection of a large shopping center known as the Garden State Plaza. The particular unit at which the accident took place was the Bamberger Building, a two-story structure. On the day of the accident the brickmasons had erected a wall to a height of about 15 feet. Brick and mortar were to be carried to them by means of a portable conveyor described as 30 to 40 feet long, perhaps two feet wide, mounted on a wheel-carriage located at the rearmost end. Its main section consisted of an endless belt driven by a small gasoline engine. The rig as a whole did not, however, move under its own power, but required hauling, towing or manual pushing to relocate it as need would dictate. The conveyor apparatus proper was mounted on a boom. Raising and lowering of the conveyor's front end was accomplished by means of a hand winch at the rear end, from which cables ran to and around small steel dolly-wheels at the end of the boom. The underframe of the conveyor proper provided a 'truck' upon which the dolly-wheels might roll. Winching the cable in would raise the boom and the front end of the conveyor.
It became necessary, the day of the accident, to move this machine up a ramp to a platform four feet above ground in order to feed materials to the masons high on the wall. Fields directed a gang of men, including Miller, to roll it up the ramp. There was testimony that Fields, himself, participated in the pushing of the rig. The number of men so engaged is variously estimated at seven to twelve, equally distributed between both sides. Miller was on the right side, near the wheels. The wheel carriage of the conveyor had reached the foot of the ramp and may have just begun the ascent, when the conveyor itself, then at its front end about 15 feet above ground, suddenly collapsed, crushing Miller to death.
Fields testified on depositions at the call of plaintiff and explained the event:
'* * * I said it twisted; that slackened the cable and made it jump the track.'
The theories upon which plaintiff postulates negligence of these defendants are: (a) as to Fields, that the moving of the conveyor by manpower was a dangerous maneuver and that he was negligent in ordering it to be done and in failing to secure the conveyor proper to the boom while moving it (the latter specification was not charged in the pretrial order); (b) as to Fowler, that as project manager he should not have assigned Fields to the equipment in view of the latter's alleged insufficient training with and knowledge of the proper method of moving it and without instructing him how to do so safety. It is also asserted Fowler had a duty under the statutory safety code, R.S. 34:5--1 et seq., 34:5--4, 35:5--161, N.J.S.A., to install safeguards for the operation of the machine, default in which made him liable to one harmed by the breach of duty (the latter claim was not made in the complaint, pretrial order, or at the trial). (c) As to Charles Muscarelle, that he was negligent in failing to inform himself as to the safe use of the conveyor and the competency of Fields to handle it; (d) as to Joseph Muscarelle, that as executive head he should have informed himself as to which employees were proficient in the use of the equipment and seen to the institution of a safety program which would have checked the qualifications and training of subordinates to handle potentially dangerous equipment.
By testimony and depositions introduced in evidence plaintiff submitted proofs which, in their most favorable light to her case, could have supported findings that the activities of the defendants in relation to the work here involved and to each other were as follows:
1. As to Fields. He had been employed by the company about ten years, originally as a laborer, and for about seven to eight years as labor foreman. He had no technical training and less than a grammar school education. He worked only on one particular project at a time, while the company generally had four or five other projects going on at the same time, as was the case when Garden State Plaza was under construction. But this was the largest project then being executed by the company.
There were four or five supervisors on the Garden State Plaza, each covering a different area. The supervisor in charge of the area in which plaintiff's decedent and Fields were working at the time was one Kinzley, who was not made a defendant. It was Kinzley who had told Fields to work at that part of the building at the time of the accident. Above Kinzley in authority was Charles Muscarelle, as 'general superintendent' on the job, and above Muscarelle was Fowler, project manager. The personnel in this 'chain of command' were assigned by Fowler.
Fields knew, without being expressly told, that he was to have the conveyor brought to the wall and to erect the ramp so that the conveyor could be brought up within reach of the top of the wall. It was the function of the union shop steward, not of the company supervisors, to approve the construction of the ramp. Fields had executed such maneuvers before. He had used the conveyor many times before, always having moved it from place to place by manpower. No one told him to do it in that or any other way. He was apparently never provided with equipment to move it in any other manner.
Fields was in charge of all common labor on the project. He regarded Fowler as his 'boss' and saw him every day, but received no direct orders from him. He also saw Charles Muscarelle on the job from time to time but received no orders or directions from him either. There were from time to time office conferences under Fowler scheduling construction progress for a period of time ahead. Fields said there was a 'safety man' on the job but he could not identify him; see discussion as to Joseph Muscarelle, infra.
2. As to Charles Muscarelle. His general status has been described. His function was 'expediting and coordinating the work' as a whole, and he was in attendance every day. He knew the conveyor was there but had never seen it moved. He did not know its size or specifications but knew in a general way how it worked. He had limited technical training, but, at 37, had been engaged in the construction business his entire career.
3. As to Fowler. His general status has been described. He was the senior executive in the field. He described his duties as 'primarily from a coordination standpoint, a scheduling and office administrative standpoint.' He knew there was a conveyor in use on the project and that it was the only one the company owned. He had no concern with detailed construction operations and did not know that the ramp was built or that the conveyor was to be moved onto it. He knew nothing about the need for the specific fatal maneuver. It might have been a week or two before the accident since he was last at that part of the project. His knowledge of the execution of the job did not extend to specific daily progress.
4. As to Joseph Muscarelle. He never supervises in the field. He produced...
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