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Trecartin v. Mahony-Troast Construction Co.

Decided: March 6, 1952.

JULIA TRECARTIN, ADMINISTRATRIX AD PROSEQUENDUM UPON THE ESTATE OF RICHARD TRECARTIN, DECEASED, PLAINTIFF-RESPONDENT,
v.
MAHONY-TROAST CONSTRUCTION COMPANY, A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT-APPELLANT



McGeehan, Jayne and Wm. J. Brennan, Jr. The opinion of the court was delivered by William J. Brennan, Jr., J.A.D.

Brennan

Plaintiff'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. , to provide the subcontractor's employees with safety belts and life lines, R.S. 34:5-136 to 140; 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 (E. & A. 1942); cf. Farrell v. Diamond Alkali Co. , 16 N.J. Super. 163 (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. 2 d 136 (Ct. App. 1939); Lowenhar v. Commercial Outfitting Co., Inc. , 260 App. Div. 211, 21 N.Y.S. 2 d 112 (1940), affirmed 285 N.Y. 671, 34 N.E. 2 d 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 (E. & A. 1937); Smith v. Asbury Park , 3 N.J. Super. 161 (App. Div. 1949); State v. Perretti , 9 N.J. Super. 97 (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 (Sup. Ct. 1914); Gibbons v. Chapin & Gore , 147 Ill. App. 575 (1 st Dist. 1909); Beasley v. Bond , 173 Okla. 355, 48 P. 2 d 299 (Sup. Ct. 1935); Tamm v. Sauset , 67 Ore. 292, 135 P. 868 (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. 2 d 868, 901 (1951); ...


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