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Trent v. Atlantic City Electric Co.

July 23, 1964


Author: Biggs

Before BIGGS, Chief Judge, and FORMAN and GANEY, Circuit Judges.

BIGGS, Chief Judge.

This is an appeal by the defendants, Atlantic City Electric Company ("Electric Company"), Deepwater Operating Company ("Deepwater"), and Gibbs and Hill, Inc. ("Gibbs and Hill") from a judgment of $350,000. in favor of the plaintiff, James R. Trent, for injuries sustained as the result of an accident which occurred on November 15, 1956. The Electric Company as third party plaintiff has also appealed a judgment of no cause of action respecting its claim against the third party defendant, Garden State Construction Company ("Garden State").

Jurisdiction in the case at bar is based on diversity of citizenship and the law of New Jersey governs. The background facts are somewhat complex and need not be set out in full. The basic facts will be detailed in the paragraphs immediately following. Additional facts will be set out as required in the discussion of the particular issues.



(A) The Electric Company was the owner of the buildings and equipment of a power plant located at Deepwater, New Jersey. This plant furnished electricity to customers in the area. It was operated by Deepwater which was a wholly owned subsidiary of the Electric Company.

In January 1956 the Electric Company decided to have the capacity of the Deepwater plant expanded. On January 6, 1956 the Electric Company entered into a contract with Gibbs and Hill under which the latter agreed to perform the engineering and construction services on the Deepwater project. Gibbs and Hill was an engineering company engaged in construction.

On March 21, 1956 Garden State contracted with the Electric Company to perform the electrical work on the Deepwater job. Garden State was an electrical contractor. The plaintiff, Trent, was an electrician of the highest classification, i.e., that of "journeyman," who was to be employed by Garden State on the Deepwater project.

The contract between the Electric Company and Gibbs and Hill in pertinent part provided: "We [Gibbs and Hill] propose to act as your [Electric Company's] engineers and constructors in connection with the design and installation of additional steam electric generating capacity at your Deepwater, New Jersey plant. * * * These services will be performed in cooperation with and at all times subject to the direction of you or your authorized representatives."

"Acting as your engineers and constructors, we will work at all times in close cooperation with members of your organization, assuming as much responsibility as you may delegate to us, being guided in all respects by such instructions as you may from time to time give us. You will have full control of the work in all its phases, the selection and purchase of materials, machinery and equipment, letting of contracts, progress and sequence of the work, and all other questions. You may order additional work, cancel work previously authorized, or make other changes in either the scope or character of the work."

"We will prepare and provide you, at regular intervals mutually agreed upon, with detailed progress reviews covering studies, design work, procurement of major and critical equipment, construction plans and progress, with the intent that you and we will mutually understand the status of progress.

"We propose to conduct our field construction work and to supervise the work of our field sub-contractors to the end that job progress is orderly, neat, and in accordance with good safety practices. We propose further to plan and conduct our work to maintain accomplishments in accordance with schedule and to actively pursue all opportunities to reduce costs either in the office, field, or in connection with material and equipment selection, purchase and/or handling."

The contract between the Electric Company and Garden State was prepared for the company by Gibbs and Hill. In relevant part it provided: "GIBBS & HILL, INC. are the Engineers pertaining to the work to be performed and the materials to be supplied under this agreement and are accepted as such by the parties hereto [Electric Company and Garden State]. All work provided for herein shall be done under the supervision and direction of the said Engineers or their representatives, and their decision as to the true construction and meaning of the drawings and Specifications shall be final and binding on the parties. In the performance of its work the Contractor [Garden State] agrees to cooperate with the Engineers and with all other contractors and subcontractors engaged by the Owner [Electric Company] in the construction of the said generating unit who may be on the premises while the work hereunder is being performed."

"Contractor shall erect and maintain such danger signs, signals, red lights, guards, protective enclosures, platforms and notices as may be necessary to adequately protect the work and to protect all individuals against injury to their persons or damage to their property. The Contractor shall promptly replace any of the foregoing that must be removed temporarily during the progress of the work. If replacement is not properly made the Owner reserves the right to effect replacement at the expense of the Contractor.

"The Contractor shall provide and maintain for the protection of its employees such safety equipment, guarding and personal protective apparel as is prescribed for safe practices or as required by any law, ordinance rules or regulations or the exercise of ordinary prudence for the type of work being performed.

"The Contractor shall provide first aid equipment, supplies and competent administering of first aid as may be reasonably prescribed by good practice or as may be required by any laws for the care of injured personnel. Exceptions may be granted when the Owner has an established first aid station, dispensary or job hospital on or reasonably near the job site, in which case the Contractor may use such facilities on a cost per case basis as agreed to between the Contractor and Owner.

"The Contractor shall require its representatives to participate in the safety programs established by the Owner, including attendance at safety committee meetings as directed by the Owner. The Contractor shall, moreover, require its personnel to abide by the directives concerning job safety rules, regulations and safe practices thus established."

"The Contractor shall at all times have in charge of the work to be performed hereunder a competent superintendent, who is thoroughly familiar with the classes of work covered by the electrical drawings and Specifications. The said Superintendent shall represent the Contractor, and all instructions given to him shall be as binding as if given to the Contractor. He shall have full authority to execute such instructions.

"At the Engineers' request, the Contractor shall submit in writing to the Engineers a record of the past experience of the Contractor's Superintendent, giving the dates and locations of his work, and the nature of the Superintendent's position. If the Owner finds that the said Superintendent lacks sufficient experience, or decides during the progress of the job that the Superintendent lacks the qualifications necessary to direct the work in the manner required by the electrical drawings and Specifications, or finds that the progress of the job indicates that the date of completion of the work cannot be met due to the incompetence or inexperience of the Superintendent, then the Engineers shall have the right by written notice to the Contractor to request the removal of the Superintendent and his replacement with another Superintendent satisfactory to the Owner and the Engineers.

"The Owner or the Engineers may, directly or through their representatives, in writing request the dismissal by the Contractor or by any of its subcontractors of any foreman, workman, watchman or other employee whom the Owner or the Engineers deem incompetent, careless or otherwise a hindrance to the proper execution of the work; and the Contractor shall comply with such notice as promptly as practicable without detriment to the work."

Additionally the Electric Company-Garden State contract provided that a certain work-specifications document to be prepared by Gibbs and Hill was to form an integral part of the agreement. This document in pertinent part provided: "The Contractor shall execute, construct and finish the work in a substantial and workmanlike manner, under the direction and to the satisfaction of the Engineer in accordance with the Plans and Specifications and in conformity with the Contract, as modified by any subsequent Agreements. The Contractor shall keep one copy of all drawings and of the Specification at all times, in good order, available to the Engineer and the Engineer's representatives."

"The Contractor shall furnish skilled superintendence and shall keep the necessary thoroughly competent construction foremen constantly upon the work, and employ only experienced mechanics and other labor as necessary to insure the completion of the work without delay. He shall promptly remove from the work any man or men who refuse or neglect to carry out the instructions of the Engineer's representative in charge of the work, or who are considered by the Engineer to be incompetent, or disorderly. He shall employ only such labor as will work in harmony with labor employed by other Contractors on the work."

"The Engineer shall have full supervision over the work, and the Engineer's decisions as to quality and quantity of materials, equipment, labor and construction, the rate of progress of the work, and the meaning of the Specification and Plans shall be final and binding.

"Upon receipt of written notice from the Contractor that the work has been completed, the Engineer will give the entire work a thorough inspection. The Contractor, at that time, shall make any tests of the work required by the Engineer and any defects or omissions noted shall be made good by the Contractor before the acceptance of the work."

"The Contractor shall conduct its operations in such a manner as to provide maximum safety for all employees on the work and the public as well. It shall comply promptly with such safety regulations as may be prescribed by the Engineer or the Owner and shall, when so directed by the Engineer or the Engineer's duly authorized agents, promptly correct any unsafe conditions created by, or unsafe practices on the part of, its employees. In the event of the Contractor's failure to comply, the Engineer or Owner may take the necessary measures to correct such conditions or practices complained of and all costs thereof will be borne by the Contractor. Failure of the Engineer to direct the correction of unsafe conditions or practices shall not relieve the Contractor of its responsibility hereunder."

"The Contractor agrees to bind every Subcontractor and every Subcontractor agrees to be bound by the terms of the Agreement, General Conditions, Special Conditions, Drawings, and Specification as far as applicable to its work. Should disputes arise as to that which may be 'applicable to its work', the Engineer shall decide and such decisions shall be binding on all parties."

(B) The Deepwater property included a main building or power plant and a substation or switchyard. The power plant contained the requisite generators, boilers and turbines. The switchyard contained electrical equipment and conductors from which energy was carried to Deepwater's customers. The switchyard was subdivided into various sections of different voltages, one of which was of 11 kilo-volts. This particular part of the switchyard (hereinafter termed "the switchyard") supplied electrical energy to the Chambers Division of E.I. du Pont de Nemours and Company.

The switchyard was composed of seven bays or sections which were similar in size and arrangement. The four northernmost bays constituted the switchyard's northern section and the three southernmost bays its southern section. By means of certain connections it was possible to cut off the current in either the northern or southern section and the section remaining in operation could furnish adequate energy to the Chambers Works.

Trent's unfortunate accident occurred at the southernmost bay of the southern section.Before certain changes indicated hereinafter had been brought about in the electrical installation in the area, the flow of current in and through the southernmost bay was in simplification as follows. The energy was transmitted to the area from the power plant by means of underground cable. This cable emerged from the ground and ultimately connected with three large identical switches termed air disconnects which were located above the ground and were affixed to the outer side of a steel structure about ten feet high (hereinafter referred to as "the steel structure"). The air disconnects each consisted of a movable part, the blade, and a stationary part, the jaw. When these switches were open, an air break was created in the circuit through which current could not flow.

From the three air disconnects the cable continued on its course and ran down to a three phase oil circuit breaker. From this point the cable ran up to a second identical set of three air disconnect switches located on the inner side of the steel structure and positioned back to back with the first set of switches. This second set of switches were termed the inside switches and the first-mentioned set of switches were referred to as the outside switches. A bus or metal conductor was connected with the jaws of each of the inside switches. These cross buses ran at right angles ...

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