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Totten v. Gruzen

Decided: July 11, 1968.

ANTHONY TOTTEN, AN INFANT BY HIS GUARDIAN AD LITEM, JOHN J. TOTTEN, AND JOHN J. TOTTEN, INDIVIDUALLY, PLAINTIFFS-APPELLANTS,
v.
SUMNER B. GRUZEN AND HUGH KELLY, INDIVIDUALLY AND TRADING AS KELLY & GRUZEN, A PARTNERSHIP, FRANK W. BOGERT, INDIVIDUALLY AND TRADING AS FRANK BOGERT CONSTRUCTION CO.; AND LANGFELDT HEATING & VENTILATING CORP., A CORPORATION, DEFENDANTS-RESPONDENTS, AND HOUSING AUTHORITY OF THE CITY OF HACKENSACK, DEFENDANT



For reversal -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor and Hall. For affirmance -- None. The opinion of the Court was delivered by Hall, J.

Hall

This case, in its current posture, presents the strictly legal question whether the architects, the general contractor, or the heating contractor of an apartment house can be held liable in negligence, on the theory of alleged improper design of the heating system creating an unreasonable risk of harm, for personal injuries sustained by the child of a tenant some years after their work had been completed and accepted by the owner. The trial court decided they could not, as a matter of law, dismissing the complaint as to them on motion after plaintiffs' opening to the jury. The court relied upon the "completed and accepted" rule as set forth in Miller v. Davis & Averill, Inc., 137 N.J.L. 671, 674-675 (E. & A. 1948):

"* * * the general rule is well established that an independent contractor is not liable for injuries occurring to a third person after the contractor has completed the work and turned it over to the owner or employer and it has been accepted by him, even though the injury results from the contractor's failure properly to carry out his contract. When the work is finished by the contractor and accepted by the employer the latter is substituted as the party responsible for existing defects."

Plaintiffs' appeal was certified on our own motion before argument in the Appellate Division. R.R. 1:10-1.

The following factual framework is sufficiently established by the record, applying the rule that a motion for dismissal upon a plaintiff's opening statement "* * * admits the truth of all the facts outlined and gives a plaintiff the benefit of every possible favorable inference which can be logically and legitimately deduced." Passaic Valley Sewerage Commissioners v. Geo. M. Brewster & Son, Inc., 32 N.J. 595, 607 (1960).

In the late 1940's defendant Housing Authority of the City of Hackensack erected a multi-family housing project for low income families. Defendants Gruzen and Kelly were the architects who prepared the plans and specifications for the project. Defendant Bogert was the general contractor and defendant Langfeldt Heating and Ventilating Corp. was the heating contractor who actually installed the steam heating system pursuant to the plans and specifications. At the completion of the construction, the Housing Authority accepted the project and the other defendants had nothing to do with it thereafter. The Authority has since operated the project, renting the apartments to tenants as an owner-landlord.

In May 1961, the adult plaintiff was a tenant in the project and lived in one of the apartments with his family, which included his three-year old son, the infant plaintiff. On a day late in that month the child was burned on the right leg as a result of contact with hot piping, which was exposed and uncovered, leading to the radiator in his bedroom, where his mother had placed him to play. The burns required hospitalization, with skin grafting, and have left scars.

The supply pipe to the rather low radiator came out of the wall of the room some four or five feet from it and about ten inches above the floor. The return pipe left the opposite end of the radiator and ran in back of it some distance, parallel to the supply pipe but only about three inches from the floor to the point at which it entered the wall. This

resulted in the radiator being positioned a few inches from the wall rather than flush with it and necessitated an outward bend in the supply pipe near the radiator, so it then ran perpendicular to the wall for several inches and then took another turn upward for a foot or so to the valve located at the top. All this piping was uncovered and formed a ladder-like arrangement near the radiator which the child had tried to climb. He was found by his mother with his right leg caught around the valve and touching the hot pipes leading to it. The claim of negligence rested on alleged hazardous design of the piping system by reason of the exposed and uncovered piping, planned by the architects and constructed by the contractors. There was no claim that the piping system was not installed in accordance with the plans and specifications.

The instant suit is a consolidated action. The father first sued, prior to the expiration of two years following the accident, in the Bergen County District Court for medical and hospital expenses and loss of services. The heating contractor was not made a party to this suit and the architects were not served. More than a year after the expiration of the two-year period, a suit was commenced in the Law Division, against all the present defendants seeking damages for the child's injuries and reasserting the father's per quod claim. All answered, denying negligence. The architects and the heating contractor also pleaded the two-year statute of limitations as to the father's claim and the architects and the general contractor filed cross-claims.

There is nothing in any of the answers of these defendants or in the pretrial order entered after consolidation to indicate a defense of no liability by reason of the "completed and accepted" rule. Indeed, the defense was not raised on the motions for involuntary dismissal made following plaintiffs' opening until the last attorney to be heard, representing the heating contractor, suggested it. Counsel for the ...


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