Totten v. Gruzen, A--124

• Decision Date: 11 July 1968
• Docket Number: No. A--124,A--124
• Parties: Anthony TOTTEN, an infant by his Guardian ad Litem, John J. Totten, and John J. Totten, individually, Plaintiffs-Appellants, v. Sumner B. GRUZEN and Hugh Kelly, Individually and trading as Kelly & Gruzen, a partnership, Frank W. Bogert, individually and trading as Frank Bogert Construction Co., and Langfeldt Heating & Ventilating Corp., a corporation, defendants-Respondents, and Housing Authority of the City of Hackensack, Defendant.
• Court: New Jersey Supreme Court

Page 202

52 N.J. 202

245 A.2d 1

Anthony TOTTEN, an infant by his Guardian ad Litem, John J.

Totten, and John J. Totten, individually, Plaintiffs-Appellants, v. Sumner B. GRUZEN and Hugh Kelly, Individually and trading as

Kelly & Gruzen, a partnership, Frank W. Bogert, individually

and trading as Frank Bogert Construction Co., and Langfeldt

Heating & Ventilating Corp., a corporation, defendants-Respondents,

and

Housing Authority of the City of Hackensack, Defendant.

No. A--124.

Supreme Court of New Jersey.

Argued April 1, 1968.

Decided July 11, 1968.

Joseph M. Levinsohn, Englewood, for appellants.

Mark D. Larner, Newark, for respondents Sumner B. Gruzen and Hugh Kelly (Budd, Larner, Kent & Gross, Newark, attorneys; Mark D. Larner, Newark, of counsel).

George T. Daggett, Paramus, for respondent Frank W. Bogert (Vaccaro & Osborne, Paramus, attorneys; George T. Daggett, Paramus, of counsel).

Lewis W. Vanderbach, North Bergen, for respondent Langfeldt Heating and Ventilating Corp.

The opinion of the Court was delivered by

HALL, J.

This case, in its current posture, presents the strictly legal question whether the architects, the general contractor, or the heating contractor of an apartment house Can be held liable in negligence, on the theory of alleged improper design of the heating system creating an unreasonable risk of harm, for personal injuries sustained by the child of a tenant some years after their work had been completed and accepted by the owner. The trial court decided they could not, as a matter of law, dismissing the complaint as to them on motion after plaintiffs' opening to the jury. The court relied upon the 'completed and accepted' rule as set forth in Miller v. Davis & Averill, Inc., 137 N.J.L. 671, 674--675, 61 A.2d 253, 255, 256 (E. & A. 1948):

'* * * the general rule is well established that an independent contractor is not liable for injuries occurring to a third person after the contractor has completed the work and turned it over to the owner or employer and it has been accepted by him, even though the injury results from the contractor's failure properly to carry out his contract. When the work is finished by the contractor and accepted by the employer the latter is substituted as the party responsible for existing defects.'

Plaintiffs' appeal was certified on our own motion before argument in the Appellate Division. R.R. 1:10--1.

The following factual framework is sufficiently established by the record, applying the rule that a motion for dismissal upon a plaintiff's opening statement '* * * admits the truth of all the facts outlined and gives a plaintiff the benefit of every possible favorable inference which can be logically and legitimately deduced'. Passaic Valley Sewerage Commissioners v. Geo. M. Brewster & Son, Inc., 32 N.J. 595, 607, 161 A.2d 503, 509 (1960).

In the late 1940's defendant Housing Authority of the City of Hackensack erected a multi-family housing project for low income families. Defendants Gruzen and Kelly were the architects who prepared the plans and specifications for the project. Defendant Bogert was the general contractor and defendant Langfeldt Heating and Ventilating Corp. was the heating contractor who actually installed the steam heating system pursuant to the plans and specifications. At the completion of the construction, the Housing Authority accepted the project and the other defendants had nothing to do with it thereafter. The Authority has since operated the project, renting the apartments to tenants as an owner-landlord.

In May 1961, the adult plaintiff was a tenant in the project and lived in one of the apartments with his family, which included his three-year old son, the infant plaintiff. On a day late in that month the child was burned on the right leg as a result of contact with hot piping, which was exposed and uncovered, leading to the radiator in his bedroom, where his mother had placed him to play. The burns required hospitalization, with skin grafting, and have left scars.

The supply pipe to the rather low radiator came out of the wall of the room some four or five feet from it and about ten inches above the floor. The return pipe left the opposite end of the radiator and ran in back of it some distance, parallel to the supply pipe but only about three inches from the floor to the point at which it entered the wall. This resulted in the radiator being positioned a few inches from the wall rather than flush with it and necessitated an outward bend in the supply pipe near the radiator, so it then ran perpendicular to the wall for several inches and then took another turn upward for a foot or so to the value located at the top. All this piping was uncovered and formed a ladder-like arrangement near the radiator which the child had tried to climb. He was found by his mother with his right leg caught around the valve and touching the hot pipes leading to it. The claim of negligence rested on alleged hazardous design of the piping system by reason of the exposed and uncovered piping, planned by the architects and constructed by the contractors. There was no claim that the piping system was not installed in accordance with the plans and specifications.

The instant suit is a consolidated action. The father first sued, prior to the expiration of two years following the accident, in the Bergen County District Court for medical and hospital expenses and loss of services. The heating contractor was not made a party to this suit and the architects were not served. More than a year after the expiration of the two-year period, a suit was commenced in the Law Division, against all the present defendants seeking damages for the child's injuries and reasserting the father's Per quod claim. All answered, denying negligence. The architects and the heating contractor also pleaded the two-year statute of limitations as to the father's claim and the architects and the general contractor filed cross-claims.

There is nothing in any of the answers of these defendants or in the pretrial order entered after consolidation to indicate a defense of no liability by reason of the 'completed and accepted' rule. Indeed, the defense was not raised on the motions for involuntary dismissal made following plaintiffs' opening until the last attorney to be heard, representing the heating contractor, suggested it. Counsel for the architects and the general contractor then quickly adopted it. Plaintiffs' attorney was quite naturally taken completely by surprise, stating to the court that he was not familiar with the Miller case. In these circumstances the defense was improperly and unfairly raised and the trial court should not have granted the motions. Not only must any such defense be set forth in the pretrial order to be available, but the better practice is that the pretrial order direct that a pure question of law, which might be dispositive of the case or of a substantial issue, be determined on motion prior to trial. Passaic Valley Sewerage Commissioners v. Geo. M. Brewster & Son, Inc., supra (32 N.J. at pp. 606--607, 161 A.2d 503). ¹

Even though the defense of non-liability by reason of the 'completed and accepted' rule should not have been entertained, we should decide whether that rule is to be overthrown completely, as plaintiffs urge.

The principle that an independent contractor cannot be liable to a third person for injuries or damages caused by his negligence goes back in New Jersey at least to Marvin Safe Co. v. Ward, 46 N.J.L. 19 (Sup.Ct.1884), which relied on the English case of Winterbottom v. Wright, 10 M. & W. 109, 152 Eng.Rep. 402 (1842). There the lack of privity between plaintiff and defendant was held to bar one not a party to a contract from suing on a claim of breach of duty arising out of the contract. From that thesis, which was also set forth in Miller (137 N.J.L. at p. 674, 61 A.2d 253), developed other reasons for nonliability in such situations, including the unrealistic theory spelled out in Miller (137 N.J.L. at p. 675, 61 A.2d 253) that when the work is accepted by the owner, the contractor is deprived of all opportunity to rectify his wrong, the owner being thereupon substituted as the party responsible for existing defects. Exceptions and refinements of dubious strength grew up however and our case law, as in most other states, has run an uncertain, inconsistent and somewhat irrational course, easily demonstrated by a perusal of the decisions in the building or non-chattel field both before and since Miller. Van Winkle v. American Steam-Boiler Co., 52 N.J.L. 240, 19 A. 472 (Sup.Ct.1890); Schutte v. United Electric Co. of New Jersey, 68 N.J.L. 435, 53 A. 204 (Sup.Ct.1902); Styles v. F.R. Long Co., 70 N.J.L. 301, 57 A. 448 (E. & A.1904); Lydecker v. Freeholders of Passaic, 91 N.J.L. 622, 103 A. 251, L.R.A.1918D, 351 (E. & A.1918); Connick v. Craig, 107 N.J.L. 375, 153 A. 631 (E. & A.1931); Smith v. Claude Neon Lights, Inc., 110 N.J.L. 326, 164 A. 423 (E. & A.1933); Bacak v. Hogya, 4 N.J. 417, 73 A.2d 167 (1950); Blankley v. Nostrame, 30 N.J.Super. 405, 105 A.2d 33 (App.Div.1954); Gibilterra v. Rosemawr Homes, 32 N.J.Super. 315, 108 A.2d 295 (App.Div.1954), affirmed 19 N.J. 166, 115 A.2d 553 (1955); Levy v. C. Young Construction Co., Inc., 46 N.J.Super. 293, 134 A.2d 717 (App.Div.1957), affirmed on other grounds 26 N.J. 330, 139 A.2d 738 (1958); Sarnicandro v. Lake Developers, Inc., 55 N.J.Super. 475, 151 A.2d 48 (App.Div.1959).

By contrast, the privity requirement and its progeny were rather early broken away from, here as elsewhere, with respect to the liability for negligence of manufacturers or suppliers of chattels to injured third persons. Heckel v. Ford Motor Co., 101 N.J.L. 385, 128 A. 242, 39 A.L.R. 989 (E. & A.1925), in effect following, but not citing, the landmark case of MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050, L.R.A.1916F, 696 (Ct.App.1916).

The state of the law generally in the...