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Wolczak v. National Electric Products Corp.

Decided: March 6, 1961.


Conford, Freund and Kilkenny. The opinion of the court was delivered by Freund, J.A.D.


Plaintiff Anthony Wolczak appeals from a Law Division judgment dismissing his personal injury complaint at the close of all the evidence. His injuries were sustained on February 26, 1957, while he was in the process of drilling an overhead steel beam at the plant of defendant National Electric Products Corp. (National). His electric drill jammed and kicked on him, causing him to fall 10 or 12 feet into an empty steel tank.

Plaintiff was employed as an ironworker by the Elbert Lively Company, engaged primarily in the construction of industrial monorail systems. Defendant Hanson-Van Winkle Munning Company (Hanson) had, in the autumn of 1956, entered into an agreement with National to manufacture and furnish 15 silver-plating tanks and to supply a monorail system for the latter's Elizabeth plant. Hanson, in turn, contracted to the Lively firm the task of providing all equipment, materials and labor necessary for the erection of the monorail structure.

The steel tanks were delivered to National's factory in the early part of February 1957, and were installed by National's own employees. Each of the metal vats was about 11 1/2 feet wide, 1 1/2 feet long, 3 feet deep, and weighed approximately one ton; they were coated on the inside with a rubberized or plastic material. The tanks were placed in parallel fashion at the approximate center of National's 750-foot-long building.

The Lively Company commenced installation of the overhead system -- designed to run laterally above the tanks -- on February 21, 1957. Work progressed rapidly on the erection of the columns, the supporting members, and the steel beams that would carry the monorails; an overhead

crane belonging to National was borrowed as an aid in the actual installation of the monorails, a bridge, and a one-ton crane placed on the bridge.

By the morning of February 26 Lively's job was almost completed. All that remained was to "plumb" the structure, that is, line it up so that the crane would be certain to run along the rail in an unimpeded fashion.

In addition, it was discovered that lateral bracing of the supporting channels (steel beams running the length of the monorails between the columns) was still necessary, and that the holes for the braces had not all been made. Eight angles (specially shaped pieces of steel) were provided for this bracing job, which involved the drilling of several additional holes in the overhead monorail beam and the bolting of the angles, to "stiffen" the structure. After extended preliminary discussion, to be further mentioned hereinafter, plaintiff and a co-worker, Albert Mell, Jr., climbed a ladder to the top of the superstructure to perform the drilling. While Mell sat on the beam watching him, plaintiff drilled the first hole without incident. Mell then dismounted from the beam and proceeded to move the ladder to the next section and to procure some additional bolts. Plaintiff, standing on the 7 1/2 inch wide rail, began to drill the second hold. The hole had almost been made when the drill jammed, kicked, and threw him off balance; Wolczak fell, in a slightly tilted position, into one of the tanks.

As set forth in the complaint and the pretrial order, plaintiff's action against Hanson was grounded in the latter's status as general contractor, allegedly supervising the installation of the entire silver-plating operation in National's plant. Hanson was charged with negligence in providing improperly fabricated steel so that "it became necessary for the plaintiff to expose himself to unnecessary risks and hazards to drill certain holes in the steel"; in failing to provide proper scaffolding; and in failing to coordinate the work so as to avoid hazardous conditions.

National's asserted liability was predicated upon violation of its duty of reasonable care owed to an invitee performing work upon its premises. It was termed negligent in generally failing to provide plaintiff with a safe place in which to work, in neglecting properly to cover the hazardous steel tanks beneath plaintiff's work area, and in failing to provide proper scaffolding and to coordinate the work being done on its property.

The trial court, in dismissing the complaint as to both defendants, found that neither had any control over the plaintiff in the area in which he was working, namely, the superstructure constructed by himself and his employer, Lively. It held that neither National nor Hanson had breached any duty owed to plaintiff under the instant facts and that "the dangerous ...

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