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Schwartz v. Zulka

Decided: November 2, 1961.


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


Plaintiff was an employee of a roofing company engaged by the defendant, North Jersey Building Contractors Corp. ("North Jersey," hereinafter), to do the roofing in connection with the construction of a gasoline service station which North Jersey was erecting as general contractor for the owner. He brought this action to recover for personal injuries sustained when he fell off the roof in the course of his work. He claims the accident occurred because of the negligence of the defendant Zulka, the carpenter-subcontractor on the job, in leaving a protruding nail near the edge of the roof, on which he tripped, and that of North Jersey in failing to find and remove the nail by a proper inspection after Zulka finished his work.

After denial by the court of motions by both defendants for involuntary dismissals, the trial jury in the Superior Court, Law Division, returned a verdict of no cause of action in favor of the defendant Zulka but awarded plaintiff damages of $17,500 as against defendant North Jersey. Thereafter plaintiff moved for a new trial on the ground of the inadequacy of the verdict (which the trial judge treated as a motion for a new trial on the issue of damages only). Simultaneously, North Jersey filed a motion for judgment in its favor notwithstanding the verdict. The trial judge denied the latter motion, but he granted plaintiff's motion unless the parties stipulated that plaintiff would accept and defendant pay the sum of $30,000.*fn1

Apparently not realizing at first that there was no final judgment at this juncture, North Jersey appealed the "final judgment" in favor of Schwartz, the denial of its motion for judgment notwithstanding the verdict and the grant of a

new trial limited to the issue of damages. The defendant Zulka was not made a party to this appeal. Later, however, North Jersey moved in this court for leave to appeal, which was granted, over plaintiff's objection. The order expressly covered the subject matter of the notice of appeal already filed.

There is no appeal before the court affecting the jury verdict and judgment absolving the defendant Zulka.


We first turn to the defendant's contention that plaintiff failed to establish that North Jersey breached any duty owed to him. If valid, the court should have granted either defendant's motion for an involuntary dismissal or its motion for a judgment notwithstanding the verdict.

The theory of liability to which the compass of plaintiff's proofs narrowed at the trial was that defendant, as responsible occupier and in control of the premises under construction, owed a duty to plaintiff as invitee on the building to exercise reasonable care to provide him with a safe place to work thereon; that this duty included an obligation to inspect the roof after the carpenter, Zulka, finished his work on it, so as to detect and eliminate any hazards to the safety of the roofing workmen who were to follow the carpenter on the roof; and that although North Jersey did undertake to inspect and clean the roof it did so negligently, failing to find an 8-penny nail which was left projecting an inch above the flooring after Zulka completed his labors, as a result of which plaintiff tripped over it while performing the roofing job and fell over the edge of the roof.

Although each of the factual elements in the foregoing hypothesis of liability was disputed at the trial, we conclude, after a full examination of the transcript printed in the appendix, that the jury could have found from the testimony in the affirmative as to each such factual predicate of liability. Zulka had finished his work on the roof two days before the

day plaintiff began his work and sustained his injury. No other work involving the use of nails was done on the roof in the interim. Plaintiff testified he tripped over what felt like a nail; and his co-worker, DeRosa, testified that he went on the roof immediately after the accident, found a nail of the stated description at the spot where plaintiff tripped, and hammered it into the board. While the roofers themselves had been using nails in their work, those were of a smaller and different type, and there had been no nailing by them at the precise area where plaintiff assertedly tripped. Tedino, president of North Jersey, testified he inspected the roof the day before the accident. He did not remember seeing any "scrapings, or any debris, or any nails * * *." There was also testimony, which, ...

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