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Wellenheider v. Rader

Decided: March 6, 1967.

FRANK WELLENHEIDER, PLAINTIFF-APPELLANT,
v.
WILLIAM H. RADER, INDIVIDUALLY AND T/A HENRY RADER & SON, DEFENDANT-RESPONDENT AND CROSS-APPELLANT, AND BARTLEY CONTI, WILLIAM CONTI AND FRANK CONTI, INDIVIDUALLY, AND T/A CONTI BROTHERS ROOFING, JOINTLY, SEVERALLY OR IN THE ALTERNATIVE, DEFENDANTS-RESPONDENTS



For affirmance in part and reversal in part -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. Opposed -- None. The opinion of the court was delivered by Proctor, J.

Proctor

[49 NJ Page 3] This is a personal injury negligence suit. Plaintiff Frank Wellenheider recovered a jury verdict against

defendant William H. Rader and defendants Bartley Conti, William Conti and Frank Conti, partners (Conti). Motions by defendants for judgments n.o.v. and in the alternative for new trials were denied. On appeal the Appellate Division determined that there was no evidence of negligence by Conti, and therefore plaintiff's claim for damages and Rader's crossclaim for contribution were dismissed. As to Rader the Appellate Division thought that there was sufficient evidence of negligence, but reversed and remanded for new trial because of error in the trial court's charge. We granted certification on petition of plaintiff against both defendants and on the cross-petition by Rader against Conti. 47 N.J. 421 (1966).

At the request of American Shuffleboard Company in March 1961 Rader, a roofing contractor, inspected the roof on its one-story building in Union City and recommended that part of the roof be resurfaced. During his inspection he looked inside the building at the ceiling beneath the roof to be repaired to check for leaks and to observe the condition of the ceiling. American Shuffleboard contracted for this work with Rader. As was his regular arrangement for some 10 or 15 years, Rader subcontracted the resurfacing part of the job to Conti and kept for himself only the sheet metal work. Of the total contract price of $1,095 Conti was to get $970 and Rader $125. The job was to be done when Conti had time. On April 10 Conti informed Rader of its availability to do the work the next day.

On the morning of April 11, 1961 Conti arrived at the building ready to begin work. Rader was there to show Conti what part of the roof was to be worked on. Conti made no inspection of the ceiling and conditions inside, and Rader made no comment about them to Conti. Conti had five men on this job who hoisted some 50 rolls of tar paper weighing 60 to 65 pounds each onto the roof and then began to drop, roll, and hammer these into place.

On that day plaintiff was employed by American Shuffleboard and was working in the building whose roof was being

repaired. He was hand-finishing a shuffleboard. About 8:15 A.M. plaintiff began to hear noises of hammering and the falling of heavy objects on the roof and saw some dust coming from the ceiling. About 9:15 A.M. he heard a creaking sound, and immediately thereafter he was struck and injured by a heavy spool-like wooden disc five or six feet in diameter which fell from the ceiling.

The disc was of unknown utility. It had been in place for as long as any witness could remember. In the pretrial order it was stipulated that "the disc had been nailed into the ceiling by plaintiff's employer many years before the date of the accident." Rader did not notice it when he made his inspection in March.

Plaintiff's expert, a civil engineer, testified that the vibrations of the roof from the work being done by Conti caused the disc to fall. He also testified that the customs of the roofing industry would require an inspection of the ceiling under the roof to be repaired by either the general contractor or the subcontractor or both.*fn1 His testimony was not consistent. At times he seemed to indicate that the primary duty to inspect according to customs of the trade was on the general contractor, and at other times he seemed to say that the primary duty rested on the man who was actually doing the work.*fn2 He further testified that a roofer making a proper inspection would have noticed the unusual disc, and the closer look demanded by the unusual character of this object would

have revealed that it was not fastened to the ceiling securely enough to withstand the normal vibrations of a roofing job.

Rader, himself an experienced roofer, and his expert both testified that a roofer has no general obligation to inspect the inside of the building to be worked on, and he looks at the ceiling under the roof only to check for leaks or on specific request by the owner. Frank Conti and Conti's expert also testified that according to usual customs of the roofing industry there was no duty to inspect the ceiling. They further said that such duty to inspect as there was rested on the general contractor, the man who agreed with the owner to do the work; and the subcontractor could rely on the general contractor to make such inspection as was necessary and inform the subcontractor of any unusual condition.

Plaintiff's theory was that both defendants owed him, a person who worked in the building, a duty to make a reasonable inspection of the ceiling and general conditions of the area under the roof to be worked on, and that such an inspection would have revealed that the disc was not fastened securely enough to withstand the vibrations of a normal roofing job. Plaintiff also urged that the actual resurfacing by Conti was done negligently, but he offered no proof tending to show this. The trial judge rejected the theory, and plaintiff abandoned it at trial and on this appeal. The jury was charged that it could not find Conti negligent for the manner in which it performed the actual resurfacing.

The Appellate Division determined that the expert testimony at the trial established that a subcontractor could rely on a competent general contractor to make such inspection as would be proper in the circumstances and to inform the subcontractor of any untoward conditions. This being so, there was no duty on Conti to make its own inspection, and therefore no evidence that it was in any way negligent. The Appellate Division dismissed both plaintiff's claim against Conti and Rader's crossclaim for contribution. As ...


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