Trecartin v. Mahony-Troast Const. Co., MAHONY-TROAST

• Decision Date: 06 March 1952
• Docket Number: MAHONY-TROAST,No. A--618,A--618
• Citation: 18 N.J.Super. 380,87 A.2d 349
• Parties: TRECARTIN v.CONST. CO.
• Court: New Jersey Superior Court — Appellate Division

Page 380

18 N.J.Super. 380

87 A.2d 349

TRECARTIN v. MAHONY-TROAST CONST. CO.

No. A--618.

Superior Court of New Jersey, Appellate Division.

Argued Feb. 18, 1952.

Decided March 6, 1952.

Marshall Crowley, Newark, argued the cause for appellant (Shaw, Hughes & Pindar, Newark, attorneys; Charles H. Hoens, Jr., Newark, on the brief).

Maurice C. Brigadier, Jersey City, argued the cause for respondent (Nathan Baker, Hoboken, attorney).

Before Judges McGEEHAN, JAYNE and WM. J. BRENNAN, Jr.

The opinion of the court was delivered by

WILLIAM J. BRENNAN, Jr., J.A.D.

Plainiff's decedent, a structural iron worker in the employ of Terry Steel Contractors, Inc., died from injuries suffered when he fell, while at work, from the 150--foot level of an openwork structural steel television and radio tower being erected by his employer under subcontract with the defendant, the general contractor engaged by Bamberger Broadcasting Service, Inc., to build a television and radio broadcasting station at North Bergen. The decedent was stooped over on a narrow footwalk and lost his balance when struck on the back and shoulders by heavy bolts which dropped from the 210--foot level where two other Terry employees were bolting sections. Decedent had not been provided with a safety belt or life line at any time during the period of more than a month that he worked on the job.

The plaintiff widow, as administratrix Ad prosequendum, brought this action against the defendant general contractor, alleging that her husband's death was caused by its negligence. She recovered a jury verdict of $100,000 in the Law Division, Hudson County, and defendant appeals from the judgment entered thereon.

The case was submitted to the jury upon instructions that a finding of negligence might be rested upon (1) the violation of an alleged duty under 'An Act establishing a safety code for workers in the construction industry,' L. 1930, c. 185, R.S. 34:5--1, etc., N.J.S.A., to provide the subcontractor's employees with safety belts and life lines, R.S. 34:5--136 to 140, N.J.S.A.; and (2) upon active interference with the matter of the supplying by decedent's employer of safety belts and life lines and the actual participation in the failure of decedent's employer to supply the same by defendant's giving of specific instructions to the subcontractor not to permit its employees to use them.

Defendant employed Lester Clark as project manager to supervise the execution of its contract with Bamberger Broadcasting Service, Inc. The tower work, except for the concrete foundations constructed by defendant, was entirely sublet under independent contracts; the assembling and erection of the tower sections were subcontracted to Terry Steel Contractors, Inc.; the painting and electrical work was sublet to other subcontractors; even the inspection of the tower work as it progressed was subcontracted to a concern specializing in that service. Clark's duty, performed contemporaneously with like supervision of other projects under contract with other owners at other places, was to oversee the timely completion of the subcontracts and of the work generally according to the plans and specifications. The control of the manner and methods by which the work called for by Terry's subcontract was to be performed and the supervision and direction of the Terry employees was not reserved by defendant in the subcontract with Terry; rather, such control and direction were solely Terry's responsibility as part of the specialized skills and services engaged by the defendant.

Section 161 of the Safety Code makes the duty under section 136 to provide life lines and safety belts, as in the case of other duties under the Code, that of 'Any manager, superintendent, owner, foreman Or other person In charge of any building, construction Or other place, in which this chapter is violated * * *.' (Italics supplied.) Violations are punishable by fine for a first offense and by imprisonment for subsequent offenses, and under section 160 any officer of a corporation which is guilty of violation is made personally liable to the penalty for such violation.

A general contractor who sublets work, relinquishing the right of control and direction over the manner in which the work shall be done, and of the employees engaged in doing it, and exercising only such general superintendence as is necessary to see that the subcontractor performs the contract, ordinarily has no duty to protect an employee of the subcontractor from the very hazards that arise from the doing of the contract work itself; the subcontractor and not the general contractor has the duty to guard his employees against such dangers. Broecker v. Armstrong Cork Co., 128 N.J.L. 3, 24 A.2d 194 (E. & A. 1942); cf. Farrell v. Diamond Alkali Co., 16 N.J.Super. 163, 83 A.2d 900 (App.Div. 1951). A duty created by the Safety Code becomes an obligation of the construction general contractor only if he is a 'person in charge of' 'any * * * place' where performance of the particular duty is requisite. We find nothing here to support an inference that defendant was 'in charge' of the 'place' at which decedent was working at the time of his fall; therefore defendant was not obliged to provide him with a safety belt and life line as required by the Code. The 'place' was the very work itself. Mere reservation of supervision for the purpose of seeing that the contract work is done in compliance with the plans and specifications is not control of the work or of the manner of doing it and did not operate to put defendant 'in charge' of that 'place' nor impose upon defendant any statutory duty to the deceased so long as the supervision related only to the results and not to the method of doing the work. Homin v. Cleveland & Whitehill Co., 281 N.Y. 484, 24 N.E.2d 136 (Ct.App. 1939); Lowenhar v. Commercial Outfitting Co., Inc., 260 App.Div. 211, 21 N.Y.S.2d 112 (App.Div. 1940), affirmed 285 N.Y. 671, 34 N.E.2d 376 (Ct.App. 1941). The Safety Code is a penal statute not to be deemed to subject a person to punishment for its violation except as its application to him plainly appears. State v. Carr, 118 N.J.L. 233, 192 A. 36 (E. & A. 1937); Smith v. City of Asbury Park, 3 N.J.Super. 161, 65 A.2d 755 (App.Div. 1949); State v. Perretti, 9 N.J.Super. 97, 75 A.2d 151 (App.Div. 1950).

Defendant neither reserved control of the equipment to be used by Terry in the doing of the erection work, nor of the manner or method of its doing, nor any direction of its employees engaged in the work of erection. The Safety Code does not by its terms make the general contractor liable without regard to its having such direction or control at the place where the violation occurs. The Legislature decidedly did not contemplate that the officers of a corporate general contractor are to be subjected to fine or imprisonment as 'in charge of' a place where a violation occurs solely by reason of the reservation of the right to supervise results. Courts of other states have had no difficulty in reaching that conclusion under similar statutes, often despite wording more readily justifying the construction that the Legislature intended to impose the duty upon the general contractor. Leet v. Block, 182 Ind. 271, 106 N.E. 373, 20 A.L.R. 654 (Sup.Ct. 1914); Gibbons v. Chapin & Gore, 147 Ill.App. 575 (1st Dist. 1909); Beasley v. Bond, 173 Okla. 355, 48 P.2d 299 (Sup.Ct. 1935); Tamm v. Sauset, 67 Ore. 292, 135 P. 868, L.R.A. 1917D, 988 (Sup.Ct. 1913); and see, generally, Annotation, General Contractor's Liability for Injuries to Employees of Other Contractors on the Project, 20 A.L.R.2d 868, 901 (1951); see also Kennedy v. David Kaufman & Sons, 86 N.J.L. 685, 92 A. 1086 (E. & A. 1914). The decisions are in accord that there is no reason why in the interests of justice the statute should apply to a case where the general contractor, as in the present case, has contracted away the direction and control of the details of the work and the manner of its performance at the place where the violation occurs. 'That authority precedes responsibility, or control is a prerequisite of liability is a well-recognized principle of law as well as of ethics.' Mack v. Marshall Field & Co., 218 N.C. 697, 12 S.E.2d 235, 237, (Sup.Ct. 1940); see also Lawton v. Morgan, Fliedner & Boyce, 66 Ore. 292, 131 P. 314, rehearing denied 134 P. 1037 (Sup.Ct. 1913); Rosenquist v. Brookdale Homes, Inc., 133 N.J.L. 305, 44 A.2d 33 (E. & A. 1945); Terranella v. Union Bldg. & Construction Co., 3 N.J. 443, 70 A.2d 753 (1950); Meny v. Carlson, 6 N.J. 82, 77 A.2d 245 (1950).

The Safety Code fixes liability upon such person or persons as have the mentioned control over the place where the violation occurs and brings within its operations only such persons as are in actual control and who fail to do the things commanded by the statute to be done at that place. The words 'Any manager, superintendent, owner, foreman or other person' are qualified by the words 'in charge of any * * * place, in which this chapter is violated' and are limited to such persons so 'in charge' to the exclusion of all others.

Since defendant was not a 'person in charge' obliged in the circumstances proved to comply with section 136 of the Code, it was error to submit to the jury the question whether the defendant was negligent by reason of mere failure to provide decedent with a safety belt and life line.

There was, however, evidence of negligence independent of a violation of any statutory duty in proofs which, if believed, justified a finding by the jury that defendant, through Clark, actually interfered with the matter of supplying of safety belts and life lines by the subcontractor, and participated in the latter's failure to do so, by giving specific instructions to decedent's foreman that they were not to be used. Mere knowledge that the subcontractor was violating the Safety Code in not supplying his workers with the devices is not sufficient...