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Gallas v. Public Service Electric and Gas Co.

Decided: August 4, 1969.

JULIA GALLAS, ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF STEPHEN GALLAS, DECEASED, PLAINTIFF-APPELLANT,
v.
PUBLIC SERVICE ELECTRIC AND GAS CO., HATCO CHEMICAL COMPANY, A DIVISION OF W.R. GRACE & COMPANY, A CORPORATION, AND W.R. GRACE & COMPANY, A CORPORATION, DEFENDANTS AND THIRD-PARTY PLAINTIFFS-RESPONDENTS, AND BETHLEHEM STEEL CORPORATION -- BUFFALO TANK DIVISION, THIRD-PARTY DEFENDANT-RESPONDENT



Gaulkin, Collester and Labrecque. The opinion of the court was delivered by Labrecque, J.A.D.

Labrecque

[106 NJSuper Page 530] In this wrongful death action plaintiff Julia Gallas, administratrix ad prosequendum of

the estate of her husband Stephen, appeals from judgments of involuntary dismissal entered at the conclusion of the case in favor of defendants Public Service Electric and Gas Company (Public Service), Hatco Chemical Company and W.R. Grace & Company (Grace) and Bethlehem Steel Corporation -- Buffalo Tank Division (Bethlehem).

Decedent had been employed as a welder by K.L.O. Welding Erectors Co. (K.L.O.) for eight to ten years prior to his death. K.L.O. is primarily engaged in the construction of steel tanks, smoke stacks and water towers. On January 23, 1964 Hatco Chemical Company (Hatco), a division of Grace, contracted with Bethlehem for the purchase and construction of a steel water tank on the premises of its chemical plant at Fords, Middlesex County. Bethlehem subcontracted the construction of the tank to K.L.O., which was to construct the tank with fabricated steel provided by Bethlehem. The tank was to be 33 feet high with a diameter of 40 feet and a capacity of 300,000 gallons. The foundation for the tank -- consisting of a concrete ring wall extending four feet below and two feet above ground, and filled with sand -- was to be constructed by another contractor and was, in fact, ready at least two weeks prior to the accident. It was located to the left of the access road into this portion of the premises and beyond a fence which separated the parking lot from this area.

On the morning of September 21, 1965 three K.L.O. employees, including the decedent and Patrick Ivan, K.L.O.'s field superintendent, visited the job site, but did no work and remained for only a few hours. The mobile crane or "cherry picker" here involved -- which was to be used in the construction of the tank -- had arrived earlier in the day and was on a trailer which was parked in the Hatco parking lot. Mounted on caterpillar treads and powered by a gasoline motor, the crane had a 26-foot boom, mounted on top, which could be raised or lowered and could be turned in all directions (360 degrees).

On the following morning Ivan, Gallas and Gural, another welder, returned to the job site at approximately 8 A.M. In the absence of the regular crane operator (he was not due to arrive until 10:30 A.M.), Ivan -- who was qualified -- received permission to operate the crane. In the meantime a truckload of steel plates to be used on the job had arrived and Ivan asked the driver of the truck to move the trailer from the parking lot to the job site. The trailer was then brought through the gate at the far end of the parking lot to a position on the access road within 50 feet of the job site. The access road was macadam and ran at a slight incline downhill from the gate. Some 75 feet beyond the point where the trailer was first stopped the access road was crossed by two electric lines, 26 feet high, each consisting of three wires mounted on wooden poles, which led into a power substation owned by Hatco, located approximately 200 feet from the job site. The wires -- which, it later appeared, carried 26,400 volts -- were uninsulated. They were operated and maintained by Public Service whose employees had allegedly last inspected them on September 21, 1965.

Before the crane was actually unloaded, the trailer had to be backed down the access road a few more feet (towards the wires) to facilitate the passage of an oil delivery truck. The crane was then backed off the trailer through the use of skids approximately 18 feet long, and was moved three to four feet beyond the skids. At this time, the boom was down flat and pointed toward the gate. Then, upon noticing a faulty cable, Ivan directed Gallas to assist him in changing it. When installing a new cable it is the usual practice to raise the boom in order to insure that the cable remains taut. The new cable was almost on and Ivan had started to raise the boom, when another truck driver asked that the crane be moved. Acceding to this request, Ivan backed the crane another 30 feet down the road toward the wires. The front of the crane (the radiator) was now only ten feet (using an imaginary perpendicular plum line) from the nearest wire. Ivan, who by then was aware of the presence of

the electric wires, then proceeded to raise the boom to an angle of 70 degrees and instructed Gallas to get a "bull pin" (a foot long piece of tapered steel) and hit the new cable so that it would be tight as it was wrapped around the cable drum. The crane was then several feet away and to the right of a stack of from one to two hundred metal barrels, piled three and four high. As Gallas was in a position between the crane and the barrels doing as he was ordered, the boom in some manner contacted the overhead wire and the electric current passed through him. Ivan testified he leaped from the crane and was immediately "bolted" about ten feet. He stated that although the hog line -- a supporting cable extending from the top of the boom backward to the rear of the crane -- had been at least three feet from the nearest wire before the accident, afterwards it was in contact with it. The area surrounding the crane, including the stack of barrels, remained electrified until someone knocked the cable away from the latter.

At the conclusion of the testimony defense motions for dismissal were granted, the court finding that absent knowledge by Public Service of the work being performed by K.L.O., the proofs could not support an inference that it had violated any statutory duty or its common law duty to exercise a high degree of care in installing and maintaining its wires and poles. It ruled that the installation conformed with the electrical code requirements and that it was not foreseeable that work would be done in proximity to the wires without notice to it as required by statute. The court also determined that Bethlehem owed neither a statutory nor a common law duty to plaintiff since it had merely engaged the services of K.L.O. and exercised no control over the job, and that Grace (Hatco) breached no duty owing to decedent since (1) it was not obligated to notify Public Service of the impending work to be done by K.L.O. or Bethlehem, (2) it was not required to guard against the hazard posed by the electric wires and (3) the movement of the boom by Ivan was an independent

intervening cause which was not within the realm of foreseeability. Plaintiff appeals from the court's ruling as to all three defendants.

It is axiomatic that in passing upon a defendant's motion for involuntary dismissal the court is compelled to view plaintiff's evidence as true and draw therefrom every legitimate inference of fact in her favor. Long v. Landy , 35 N.J. 44, 53-54 (1961). The motion is to be denied unless it can be said that reasonable men may not honestly differ as to whether defendant had breached a duty owing to plaintiff. Black v. Public Service Elec. & Gas Co. , 98 N.J. Super. 366, 376 (App. Div. 1968). Plaintiff urges that each of the defendants owed a duty to decedent and the evidence adduced was sufficient to call for a jury determination as to whether there had been a breach of that duty.

AS TO BETHLEHEM STEEL

In seeking to impose liability upon Bethlehem, plaintiff relies principally upon its omission to give notice to Public Service as allegedly required by N.J.S.A. 34:6-47.5. That statute then provided:

"When any operations are to be performed, tools or materials are to be handled, or equipment is to be moved or operated, within six feet of any high-voltage line, the person or persons responsible for the work to be done, shall promptly notify the operator of the high-voltage line of the work to be performed and such person shall be responsible for the completion of the safety measures, which are required by sections two and three of this act, before proceeding with any work which would impair the aforesaid clearance."*fn1

A high voltage line is defined as one carrying in excess of 750 volts. N.J.S.A. 34:6-47.1. Here, as noted, the voltage was 26,400.

The trial court interpreted N.J.S.A. 34:6-47.5 as placing responsibility for compliance with it upon the party exercising control and dominion over the work project and reasoned that since the evidence failed to demonstrate that Bethlehem was exercising such control it was not a "person * * * responsible for the work to be done."

Plaintiff urges that the court erred in so holding and that by virtue of the statute Bethlehem (as well as Grace) was required to notify Public Service of the impending work to be performed by K.L.O. It is conceded that no such notice was given by either.

We know of no reported case in this State which has passed upon the issue presented. The cited section was a portion of the so-called High Voltage Lines Act, L. 1948, c. 249. Section 2 thereof, N.J.S.A. 34:6-47.2, provided:

"No person, firm, or corporation, or agent of same, shall require or permit any employee to perform any function in proximity to high-voltage lines; to enter upon any land, building, or other premises and there to engage in any excavation, demolition, construction, repair or other operation; or to erect, install, operate or store in or upon such premises any tools, machinery, equipment, materials, or structures, including house moving, well drilling, pile driving or hoisting equipment, unless and until danger from accidental contact with said high-voltage lines has been effectively guarded against in the manner hereinafter prescribed."

From our consideration of sections 2, 3, 4 and 5 of the act, N.J.S.A. 34:6-47.2, 3, 4 and 5, we are satisfied that they had application to employers whose employees would be subject, in the performance of the work required of them, to danger from high voltage lines. This construction is confirmed by the 1966 amendments to the cited sections. Section 2 now recites that "no employer or supervising ...


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