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Bergquist v. Penterman

Decided: July 25, 1957.


Goldmann, Freund and Conford. The opinion of the court was delivered by Goldmann, S.j.a.d.


Plaintiff, as administratrix ad prosequendum and general administratrix of the estate of Perr Robert Bergquist, brought an action in the Superior Court, Law Division, against George Penterman, a plumbing contractor, his employee Kivimage, and Point Pleasant Home Construction Company (hereinafter "Point Pleasant") for damages for personal injuries to and the death of Bergquist because of their negligence. Decedent was fatally burned as the result of an explosion which occurred on October 13, 1955 while he was doing floor finishing work in a dwelling then under construction at defendant Point Pleasant's development. The matter was heard before a judge and jury. At the close of plaintiff's case Point Pleasant moved for judgment of involuntary dismissal, which was granted. A similar motion, made on behalf of defendants Penterman and Kivimage, was denied. They then proceeded with their witnesses and at the conclusion of the entire case again moved for judgment. The motion was denied and the case submitted to the jury which, after extended deliberation, announced that it was hopelessly deadlocked, whereupon it was dismissed.

This court granted plaintiff's application for leave to appeal from the judgment of involuntary dismissal in favor of Point Pleasant. Similar leave was given defendants Penterman and Kivimage to appeal from the granting of that judgment, as well as from the denial of their own motions for judgments of involuntary dismissal.


At the time of the accident defendant Point Pleasant was engaged in the construction of a development known as Oak Park, located on a large tract it owned in Point Pleasant, N.J. It had completed and sold all the 26 homes comprising the first section of the development, and four in the second. Eight or nine houses were in various stages of completion. The company engaged no general contractor, but furnished the materials for the jobs and, through its secretary-treasurer Potter, arranged for the services of individual contractors at a fixed sum per house. These contractors furnished their own workmen, supplied incidental material, supplies, tools and equipment needed on the jobs, and generally exercised complete supervision over their respective employees and the manner in which the work was done.

Point Pleasant conducted its operations from a field office six blocks from the development. Potter was in charge, with a Mrs. Wood acting in his absence. Schedules containing the job numbers of houses under construction and their tentative completion or delivery dates were posted on a bulletin board for the information of contractors who came to the office. Construction would start as soon as the company had purchase contracts for one or more dwellings. The schedule was a flexible one, the work of each contractor being governed by the progress of the work ahead of him. Generally, contractors worked at their own convenience, since they had jobs other than Point Pleasant's. In order to keep in touch with construction activities, they would ordinarily stop in at the office, or note the progress of other contractors, and begin work when they saw a house was ready for the job they had to do.

Potter testified that he coordinated the activities of all contractors so as to get a house completed at a certain time, if possible. As a completion date approached he would get in touch with contractors and pressure them to complete their jobs. He saw to it that the contractors "did their own

work in a workmanlike manner"; once in a while he would go through the houses to see that the work was up to specifications. He claimed to be familiar with the work each contractor had to do, "as a layman." He admitted knowing that a torch had to be used in annealing the copper tubing that went into a heating system such as was installed in the Point Pleasant houses. He also knew that a sealer or lacquer was used in finishing floors, but said he had not inquired as to whether the material was flammable.

According to Potter, house No. 5, where the accident occurred, was handled no differently than any other dwelling in the Oak Park development. It had been sold to one Coulter and his wife, with occupancy promised for October 15, 1955. Coulter was very anxious to move in; as the date came closer he repeatedly requested Potter and those working on the job to do "whatever they could do to get me in my house." He had directed that certain furniture and household appliances he had bought be delivered to the home on October 15.

Potter testified he had told Beaton, the floor finishing contractor, and Penterman, the plumbing contractor, that the house was promised for the 15th. He said that as of October 12 there remained to be done "some painting, paperhanging, floor finishing, some plumbing work * * * outside gutters * * * and the exterior grading." Potter admitted the company was exerting effort to finish the house on time and that he may have talked to Beaton and Penterman on the 12th about finishing the house.

Penterman testified that Point Pleasant supplied the boiler for the heating system but did not deliver it until October 12. He therefore could not do anything about connecting up the heating system before then. He worked on the 12th and had one more day's work to do. He said Potter or Mrs. Wood had told him to finish the plumbing work by October 13; the understanding was that the owners were to move in the next day.

The events of October 13 are of some significance and we proceed to detail them. Penterman and his plumbing helper,

Kivimage, arrived at house No. 5 at 7:45 A.M. and went into the cellar where Penterman laid out the work Kivimage was to do. This consisted of connecting up the boiler to the pipes of the baseboard heating system already installed on the first floor. These pipes, 3/4" in diameter, passed through the floor into the cellar through 1 1/4" holes, and were to be joined to the boiler pipes by solder fused by an acetylene torch. After Penterman had finished his instructions he went upstairs and met the floor finishers, Beaton and the decedent Bergquist, his employee. Penterman testified he spoke with Bergquist who said to him, "George, we're really pushing you on this job," to which he replied that he didn't think they were since they could not do the job that day because the decorating (painting) was not completed. Penterman then left the premises and drove away. He said that Beaton and Bergquist also drove off in their truck. Penterman did not return to the house until after the accident.

Mrs. Wood testified she saw Beaton in the street "coming from House No. 5" that morning, and when he inquired, "Is this the house?" she said, "Yes, this is it." Beaton himself could not remember seeing Mrs. Wood that morning or speaking with her, nor could he remember being at the house earlier in the day, or the conversation between Penterman and decedent. However, Penterman testified that when he was at the company office the following day he overheard a conversation between Potter and Mrs. Wood, in the course of which she said she had sent Beaton back on the job after he had left house No. 5.

Beaton recalled arriving at the house between 10 and 10:30 A.M. and seeing the Penterman truck parked there and Kivimage on the premises. Beaton and the decedent began sanding the floors. Kivimage knew of this operation because he saw one of the men operating a machine when he came up from the cellar to get materials from the truck, and he said he heard the machines from time to time during the course of the morning as he worked in the cellar. The floor sanding having been completed and the house swept,

decedent went outside to mix floor lacquer and a thinner from cans clearly marked "Caution. Inflammable Mixture. Do not use near fire or flame." Decedent then brought the mixture into the house in two buckets and he and Beaton began lacquering the floors. Beaton testified he knew the materials were flammable and should not be used near fire. He also knew Kivimage was in the house and that a plumber had to use a torch to anneal pipes. However, he said he did not go to see whether the plumber was in the cellar, nor (he ...

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