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Zentz v. Toop

Decided: July 27, 1966.

JACK ZENTZ, PLAINTIFF-APPELLANT AND CROSS-RESPONDENT,
v.
CHARLES S. TOOP AND MARION TOOP, HUSBAND AND WIFE, INDIVIDUALLY, JOINTLY AND/OR D/B/A LINCROFT SHOPPING CENTER, DEFENDANTS-RESPONDENTS AND THIRD-PARTY PLAINTIFFS, CROSS-APPELLANTS, V. NATHAN SIEGEL, THIRD-PARTY DEFENDANT AND CROSS-RESPONDENT, AND FRANK CORDASCO ET AL., THIRD-PARTY DEFENDANTS



Gaulkin, Labrecque and Brown. The opinion of the court was delivered by Labrecque, J.A.D. Gaulkin, S.j.a.d. (dissenting).

Labrecque

Plaintiff appeals from a judgment n.o.v. entered in the Law Division in favor of defendants Charles S. Toop and Marion Toop following a jury verdict in favor of plaintiff. The Toops cross-appeal from a judgment entered upon a verdict in favor of third-party defendant Siegel absolving him from liability for plaintiff's injuries.

Plaintiff sued the Toops, owners and operators of the Lincroft Shopping Center, for personal injuries sustained when he fell on the roof of the shopping center after tripping over a wire on the roof. He had been working there as an employee of a contractor engaged by defendants to make repairs to the roof. The wire in question was one of several being used to support and stabilize an air conditioner tower located on the roof of the building.

Defendants filed a third-party complaint naming as defendants three of the tenants maintaining air conditioner towers on the roof of their shopping center (Cordasco, Siegel, Viona), and an air conditioning contractor (P. & L. Company). At the trial judgments of dismissal were entered in favor of the air conditioning contractor and two of the tenants (Cordasco and Viona), and the liability of Siegel, the remaining tenant, was left for determination by the jury.

In response to specific interrogatories the jury unanimously determined that (1) the Toops were guilty of negligence which proximately resulted in plaintiff's injuries; (2) plaintiff was not guilty of contributory negligence, and (3) Siegel, the tenant, was not guilty of negligence. Damages were fixed at $18,975.

The trial judge subsequently granted defendant's motion for judgment n.o.v. The present appeals followed.

At the pretrial defendants admitted ownership and control of the premises, including the roof of the building, but denied negligence and charged that the third-party defendants were responsible for maintaining the air conditioning units and the wires attached thereto. Siegel admitted that he was the tenant of the building and that he had had the

air conditioner tower in question installed over his hardware store, but denied any duty to plaintiff as to the condition of the roof.

The work for which defendant had contracted with plaintiff's employer consisted of the application of tar paper, flashing paper and hot asphalt (tar) to the roof. Previous to the accident a representative of plaintiff's employer (not plaintiff) had gone on the roof with Mr. Toop and examined its condition. The accident occurred on the day after the work was actually begun.

As part of his job plaintiff was required to be on the roof and to carry five-gallon buckets of hot asphalt from a derrick to the working area where it was to be applied. Another employee on the ground would heat the asphalt to a temperature of approximately 425 degree and then hoist it to the roof by means of the derrick.

Plaintiff testified that as he was in the process of carrying two buckets of tar weighing 25 pounds apiece across the roof and had walked 12 or 15 feet, he tripped over a guy wire which was strung between the top of the four-foot air conditioner tower and the roof surface, and fell into the hot tar. He fell over the part of the wire closest to the roof level, at a point where it was between one and six inches above the roof. Both the wire and the surface of the roof were black, and there were no flags or other means to call attention to the wire.

Plaintiff further testified that while he had encountered wires on the roof on one or two prior jobs, they had been flagged and he had never known them to be on air conditioner towers. He, however, admitted that, on the day before, he had noticed there were some wires on the roof near an air conditioner tower, although he did not recall seeing the wire which tripped him. The application of the hot tar did not begin until the day of the accident, and he was carrying the first two buckets when the accident occurred.

Plaintiff called a civil engineer as an expert witness. He testified that standard construction practice required that

the presence of the wires on the roof be delineated either by flagging or by painting them a distinctive color; that such procedure was employed "to prevent a tripping hazard." He also stated that guy wires were unusual in the case of permanent structures such as the one involved, and that in his experience their use was to support temporary structures.

Defendants' arrangement with plaintiff's employer called for repairing the roof over Siegel's hardware store as well as other adjacent stores. Under the leases in effect defendants were obligated to keep the roof in repair. ...


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