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Majestic Realty Associates Inc. v. Toti Contracting Co.

Decided: March 6, 1959.


Goldmann, Freund and Haneman. The opinion of the court was delivered by Freund, J.A.D. Haneman, J.A.D. (dissenting).


Plaintiffs, Majestic Realty Associates, Inc. (Majestic), owner of the two-story premises at 297 Main Street, Paterson, and Bohen's, Inc., a retail dry goods establishment occupying the first floor and basement thereof, appeal from a final judgment of dismissal entered in the Superior Court, Law Division, in favor of one of the defendants, Parking Authority of the City of Paterson.

Plaintiffs' claims against the defendant Toti Contracting Co., Inc. (Toti), an independent contractor, were tried and thereafter submitted to the jury. It returned a verdict of $11,200 for Majestic and of $12,700 for Bohen's. Toti does not appeal. The propriety of the dismissal in favor

of the Authority, entered at the close of plaintiffs' case, is the subject of this appeal.

The action was brought to recover damages caused to Majestic's building and to Bohen's merchandise by reason of the collapse of a wall in the process of demolition. Prior to October 26, 1956 the Authority entered into a contract with Toti for the demolition of several buildings south of Majestic's building, including the three-story structure immediately adjacent thereto on the south, 299 Main Street. Main Street is one of the principal business arteries of the city, and the area, prior to the demolition work, was completely built up. The buildings to be demolished included several on Main Street, from the Majestic building 50 or 60 feet to the corner of Ward Street, and then several others continuing east on Ward Street for 150 feet. The buildings were to be demolished for the use of the land by the Authority as a public parking area. Except for 299 Main Street, most of the razed structures were one-story buildings.

Toti began the demolition work at Ward Street and worked in a northerly direction toward the plaintiffs' building. When it reached 299 Main Street, the last building remaining intact, Toti first removed the roof, far side walls, and interior partition work, leaving the entire northerly wall unsupported and free-standing. The wall was composed of brick and masonry. It extended 20 feet above the roof of the Majestic building along the full 40-foot length of the latter.

George W. Patterson, manager of Bohen's, testified that on October 26, 1956 Toti's superintendent in charge of the job came into his store and said: "I think you better leave because we have an awful problem." Patterson replied that he would take the clerks across the street. He testified that the crane was moved down Main Street with no police protection or roping off of the street or sidewalk. He said "the street was a mess; it was a nuisance, a hazard."

Toti undertook to remove the last-remaining wall by using a crane from which was suspended a 3,500-pound wrecking ball. The crane remained in the street, and the

ball was swung over the plaintiffs' property. At first Toti's operator swung the ball at the very top of the wall, intending to reduce it by knocking off a few bricks at a time onto the Authority's lot to the south. Operations then stopped for about five minutes. When they resumed, the operator swung the ball at a point some 15 feet below the top of the wall. The impact caused the uppermost section of the wall to fall back in the direction from which the ball had been swung. A 15' x 40' section fell onto the roof of the Majestic building, causing a 25' x 40' break in the center of the roof. Charlotte S. Dunn, an employee of Bohen's who saw the wall collapse, testified that she asked the crane operator: "What did you do to our building?" He replied: "I goofed."

Since October 26 was a cloudy day, "tarps" were extended over the roof. It rained on October 27. The "tarps" were pitched tent-like so that the water would run off the side of the building. On November 2 the area experienced its "hardest rainstorm * * * in years." Despite the "tarps" the rain came through the roof, causing the inventory damage for which Bohen's sought recovery.

In answer to plaintiffs' interrogatory as to what precautions had been taken to prevent the wall from falling, Toti's president stated:

"All persons were removed from premises of Bohen's in anticipation of knocking down the north wall. The roof and third floor were razed so that there would be no structure on the south side of the north wall above the level of Bohen's building which would cause pressure against the north wall from the south side. North wall was left standing free so that it could be pushed over southerly. Police controlled road traffic and sidewalk was roped off."

George Patterson also testified that during the week before the accident, "* * * every time the ball hit one of their walls, all the walls were together on Main Street, and our building rocked every time they hit it causing dirt, falling debris during that time."

At the conclusion of plaintiff's case, which included the testimony of a professional engineer to be discussed infra ,

the Authority moved for a directed verdict on the ground that there was no evidence or suggestion of culpability on its part and that it was free from liability under the doctrine absolving the general employer from liability resulting from the negligence of an independent contractor. Plaintiffs resisted the motion, contending that demolition work is an extra-hazardous activity which a landowner cannot, with impunity, delegate to an independent contractor. In granting the motion and dismissing the complaint against the Authority, the trial judge ruled:

"Now, there is no question at all over the fact that this was a hazardous operation. I mean, without any testimony that is a matter of common knowledge, but I don't see where there was anything involving a public nuisance. And even if there was, this loss didn't come about by reason of that fact. The loss was occasioned by reason of actual negligence on the part of somebody in the performance of the work, and in that situation I don't see how the owner or the person in control of the property can possibly be held under our cases."

In seeking a reversal, plaintiffs urge that the independent contractor bar is unavailing for four reasons: (1) demolition work is "inherently dangerous" or a "nuisance per se "; (2) the Authority is nevertheless liable because it retained control over the work; (3) the Authority is liable for its own negligence in failing to exercise control; and (4) the Authority was negligent in hiring an incompetent contractor.

Before addressing ourselves to the first and central issue of the case, we shall dispose of plaintiffs' three remaining contentions.

Plaintiffs argue that the Authority, in its contract with Toti, reserved the right to control the manner and method of doing the work. They do not contend that the Authority did in fact direct the manner in which Toti performed the work. Where a landowner reserves to himself the right to control and direct the manner in which work is to be done, the law fastens a vicarious liability upon such landowner for tortious injuries caused by his contractor,

even though the power so reserved in the contract is not exercised. Trecartin v. Mahony-Troast Construction Co. , 18 N.J. Super. 380 (App. Div. 1952); Bergquist v. Penterman , 46 N.J. Super. 74, 85-87 (App. Div. 1957). The retention of only such general superintendence as is necessary to ensure that the work is performed in accordance with the contract, however, is insufficient to subject the landowner to liability for the contractor's negligence. Trecartin v. Mahony-Troast Construction Co., supra; Bergquist v. Penterman, supra; Giroud v. Stryker Transp. Co. , 104 N.J.L. 424 (E. & A. 1928). Plaintiffs cite numerous provisions of the contract to document the proposition that the Authority in this case retained the right to control the manner of doing the work. A detailed recital of these terms is unnecessary. None indicates that the Authority, its engineers or inspectors were to supervise the method of demolition or construction to be followed. To the contrary, the contract specifically provides: "Inspectors will not, in any way, interfere with or attempt to control the organization or method of procedure adopted by the Contractor, * * *." The Authority had no right to control or direct the operation of the work. It follows that there was no negligence in failing to exercise such control.

Plaintiffs also urge that there was sufficient evidence that the Authority was negligent in hiring an inexperienced and incompetent contractor to raise a jury question. Plaintiffs' counsel concedes that the proof to establish this point was "meager." In our judgment, the case was devoid of proof to establish a negligent hiring. The evidence of Toti's acts of negligence after it commenced work on the project does not permit the conclusion that the Authority was negligent in engaging Toti in the first instance. Indeed, it appears that Toti previously had two comparable contracts, one involving the demolition of three buildings in Fairview and another involving the demolition of eight or nine buildings in Hackensack. These are both urban communities. The record contains no other indication of Toti's ability and experience. We are satisfied that plaintiffs

failed to bear the burden of proving any impropriety in employing Toti. See Sarno v. Gulf Refining Co. , 99 N.J.L. 340, 342-43 (Sup. Ct. 1924), affirmed 102 N.J.L. 223 (E. & A. 1925); Annotations, 8 A.L.R. 2 d 267 (1949), 30 A.L.R. 1502, 1545 (1924).

We turn then to the principal question involved on this appeal -- whether the demolition of a row of buildings in a highly built-up metropolitan community constitutes, under the circumstances of this case, the kind of activity so hazardous or inherently dangerous as not to permit the landowner to be relieved from liability for damage caused by the negligence of an independent contractor. The Parking Authority does not dispute plaintiffs' legal theory, but only the premise that the activity here involved can rightfully be deemed hazardous or inherently dangerous. Before moving to this crucial fact question, however, we find it desirable to review some of the authorities that sustain the legal proposition.

Preliminarily, it is necessary to distinguish between the rule here in question and that which holds one, normally a landowner, absolutely liable for damage caused by his ultra-hazardous activities, regardless of whether he has exercised reasonable or a high degree of care. The latter doctrine had its origin in the old English case of Rylands v. Fletcher, L.R. 3 H.L. 330, 37 L.J. Ex. 161 (1868), where the landowner constructed a reservoir on his land and the water escaped and damaged a neighbor's property. Liability ensued notwithstanding no negligence had been proved. The doctrine has been recognized in the United States. Restatement, Torts , §§ 519-524; 2 Harper and James, Law of Torts , § 14.1, p. 785 et seq. (1956). Although the Rylands doctrine has not been adopted in New Jersey, Marshall v. Welwood , 38 N.J.L. 339 (Sup. Ct. 1876); De Gray v. Murray , 69 N.J.L. 458 (Sup. Ct. 1903); ...

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