Pastorelli v. Associated Engineers, Inc.

• Decision Date: 10 July 1959
• Docket Number: Civ. A. No. 2082.
• Citation: 176 F. Supp. 159
• Court: U.S. District Court — District of Rhode Island
• Parties: John V. PASTORELLI, Plaintiff, v. ASSOCIATED ENGINEERS, INC., Procaccini & Moroney Plumbing & Heating Corp., and Randall Sheet Metal Co., Defendants.

176 F. Supp. 159

John V. PASTORELLI, Plaintiff, v. ASSOCIATED ENGINEERS, INC., Procaccini & Moroney Plumbing & Heating Corp., and Randall Sheet Metal Co., Defendants.

Civ. A. No. 2082.

United States District Court D. Rhode Island.

July 10, 1959.

COPYRIGHT MATERIAL OMITTED

Stephen A. Fanning, Jr., Edward F. Hindle, Providence, R. I., Knight Edwards, Providence, R. I., Edwards & Angell, Providence, R. I., of counsel, for plaintiff.

Matthew E. Ward, Providence, R. I., for Associated Engineers, Inc.

Melvin A. Chernick, and Lee A. Worrell, Providence, R. I., for Randall Sheet Metal Co.

Louis V. Jackvony, Jr., Providence, R. I., for Procaccini & Moroney Plumbing & Heating Corp.

DAY, District Judge.

In this action the plaintiff seeks to recover damages for injuries alleged to have been caused by the negligence of the three defendant corporations. Jurisdiction is based upon diversity of citizenship and the existence of a controversy in the requisite amount. The case was tried to the Court.

The accident resulting in the injuries for which plaintiff seeks damages occurred on November 10, 1955 upon the premises of the Narragansett Racing Association, Inc. (hereinafter called "the Racing Association") in Pawtucket, Rhode Island. On said date plaintiff, an employee of the Racing Association, was lawfully upon said premises in a building familiarly known as the "clubhouse", and was engaged in the performance of his duties. While walking through said clubhouse, a heating duct suspended from the ceiling fell and struck him, causing the injuries for which he now seeks damages.

The evidence establishes that early in 1954 the defendant Associated Engineers, Inc. (hereinafter called "Associated") contracted in writing with the Racing Association to prepare plans and specifications for the installation of certain heating, ventilating and air conditioning systems on its premises (including said clubhouse). It also agreed to "supervise the contractors' work throughout the job".

The defendant Procaccini & Moroney Plumbing & Heating Corp. (hereinafter called "P. & M.") thereafter contracted with said Racing Association to erect and install said equipment; and Randall Sheet Metal Co. (hereinafter called "Randall"), as subcontractor, agreed with P. & M. to install certain heating ducts under the aforesaid contracts. Performance of the work required under said contracts was substantially completed and accepted by the owner on November 30, 1954; installation of the heating ducts in the clubhouse was completed by Randall and approved by Associated sometime in August, 1954. It is undisputed that the duct which fell upon the plaintiff was installed by Randall.

The duct which fell was approximately 20 feet long and weighed approximately 500 pounds. It was suspended from the ceiling of said clubhouse by the attachment of semi-rigid strips of metal, called hangers, to the sides of the duct, which hangers were then attached to the ceiling. This ceiling was of seven-eighths inch sheathing and was nailed to the joists of the building, leaving a considerable air space between such sheathing and the roof of the clubhouse. The duct was not in any way affixed directly to the roof itself or to the joists of the clubhouse.

Considerable expert testimony was offered as to the quality of the duct work performed by Randall. The specifications for the heating, ventilating and air conditioning system prepared by Associated, and with which Randall agreed to comply, provided that "all sheet metal work shall be erected in a first class and workmanlike manner" and that "the ducts shall be securely supported from the building construction in an approved manner".

The credible evidence satisfies me that the securing of a duct of the weight involved here to said ceiling by the means employed was not good practice nor in accordance with generally accepted practice, and that it was not installed in a first class or workmanlike manner.

By the terms of its contract with the Racing Association, P. & M. was obligated to keep a "competent superintendent" on the job throughout the performance of the work called for by its contract so as to give "efficient supervision" thereto. It is clear that it did supervise the day to day performance of the work under its contract. Furthermore, it selected Randall to perform the sheet metal work required under its contract, made no objection to the manner in which said work was being performed, and approved it as having been completed in accordance with the contract.

Pursuant to its agreement to "supervise the contractors' work throughout the job", Associated prepared and submitted periodic "inspection reports" to the Racing Association while the work was in progress. On November 30, 1954, Associated approved the invoice of P. & M. for the balance then payable under its contract less the sum of $400 for minor items to be completed thereafter, and certified that the "performance and execution of the contractor's work has been satisfactory". Its employee, the engineer who prepared these reports, testified that his employer assigned to him the task of supervising the installation of said systems, and that in pursuance of his duties he visited the job site on one, two or three occasions each week to inspect the work of the contractor as it was being done. He also testified, however, that he never observed any of the ducts being hung from the ceiling in said clubhouse, stating that whenever he visited the clubhouse the ducts were either on the floor or already installed. He also admitted that he never climbed a ladder to determine whether the hangers by which they were suspended were attached by nails or lag screws and never tested any of the hangers to see how securely they were attached.

By way of defense the defendants contend (1) that the plaintiff cannot recover from them even if they were negligent because he was not in privity of contract with them or with any of them; (2) that none of the defendants was guilty of any negligence which can reasonably be said to have been a proximate cause of the plaintiff's injuries; and (3) that the work performed by each of them had been completed and accepted by said Racing Association more than a year prior to the accident in which plaintiff was injured, thereby relieving them of potential liability for the work done.

The question of legal responsibility of the defendants for any harm sustained by the plaintiff must be determined in accordance with the law of Rhode Island. Person v. Cauldwell-Wingate Co., 2 Cir., 1949, 176 F.2d 237, certiorari denied 338 U.S. 886, 70 S.Ct. 189, 94 L.Ed. 544.

Defendants correctly argue that ordinarily an action for damages for the negligent performance of a contract will not lie in favor of a person who is not a party to such contract. This is the general rule in Rhode Island and elsewhere. See, e. g., Oliver v. Pettaconsett Construction Co., 1914, 36 R.I. 477, 90 A. 764.

But the plaintiff here is not seeking damages for the breach of any of the contractual obligations of the defendants. His right of action is based upon the breach of their duty to him and other persons who might be lawfully in said clubhouse to use due care in the installation of the duct work, and their negligence in creating a condition dangerous and hazardous to him and other persons lawfully in said clubhouse. This distinction is elementary; if it were otherwise, a person injured by the negligence of an independent contractor would be without redress against said independent contractor unless he happened to be a party to the agreement between the contractor and contractee, no matter how grossly negligent the contractor may have been.

In Rhode Island it is well settled that an independent contractor whose negligence creates a hazardous condition may be liable in tort to persons other than the contractee. See Floyd v. Turgeon, 1942, 68 R.I. 218, 27 A.2d 330; Kimatian v. New England Telephone & Telegraph Co., 1928, 49 R.I. 146, 141 A. 331. And in Oliver v. Pettaconsett Construction Co., supra, the Supreme Court, in remanding the case for a new trial, recognized that the defendant might be liable to the plaintiff for injuries caused by its negligence in the performance of the work undertaken by it under its contract, to which contract the plaintiff was not a party. See also Bucci v. Butler, 1947, 73 R.I. 60, 53 A.2d 705.

The complaint in the instant action sounds in negligence. The plaintiff contends that the defendants and each of them were guilty of negligence in the carrying out of certain acts which they undertook to perform. The only relevance of the contracts hereinbefore described was to show that Randall was engaged to install said ducts; that P. & M. had control and superintendence over Randall's work; and that Associated had general supervision over the installation of the heating, ventilating and air conditioning systems of which the work of Randall formed a part. For this limited purpose the several contracts were clearly material and relevant. Proof of their contents, moreover, cannot serve to relieve the parties to those contracts of their common-law duty to exercise reasonable care for the safety of others in the performance of their work under said contracts. See Fidelity Title & Trust Co. v. Dubois Electric Co., 1920, 253 U.S. 212, 40 S.Ct. 514, 64 L.Ed. 865; Bacak v. Hogya, 1950, 4 N.J. 417, 73 A.2d 167; Bollin v. Elevator Const. & Repair Co., 1949, 361 Pa. 7, 63 A.2d 19, 6 A.L.R.2d 277; Murphy v. Barlow Realty Co., 1939, 206 Minn. 527, 289 N.W. 563; cf. Bucci v. Butler, supra. See also 38 Am.Jur., Negligence, §§ 20-22. As was said by Judge Cardozo in the landmark case of MacPherson v. Buick Motor Co., 1916, 217 N.Y. 382, 111 N.E. 1050, at page 1053, L.R.A.1916F, 696:

"* * * the presence of a known danger, attendant upon a known use, makes vigilance a duty. We have put aside the notion that the duty to safeguard life and limb, when the consequences of

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