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Hill v. Newman

Decided: November 19, 1973.

GRACE HILL, PLAINTIFF-RESPONDENT,
v.
MICHAEL NEWMAN, INDIVIDUALLY AND DOING BUSINESS AS NUWOOD FURNITURE SERVICE, ETC., DEFENDANT AND THIRD PARTY PLAINTIFF-RESPONDENT, AND GRANT FURNITURE OF NEW JERSEY, A CORPORATION OF NEW JERSEY, DEFENDANT-APPELLANT



Carton, Seidman and Goldmann.

Per Curiam

Defendant Grant Furniture of New Jersey (Grant) appeals from a Law Division, "Judgment, Decision and Ruling" in favor of plaintiff in an action to recover for severe burns suffered as a result of the negligence of defendants Newman and Grant.

Plaintiff had purchased certain furniture from Grant's which, she testified, showed nicks, scratches and gouges on delivery. She reported this to Grant's and was assured that someone would be sent to fix it. She then received a call from a man who said he was from Grant's, and an appointment was made. When defendant Newman arrived at her home he identified himself as the man from Grant's Furniture Store who had come to fix the furniture. She admitted him and he proceeded to repair the defects. Plaintiff said that Newman sprayed the furniture with some "bad smelling stuff" -- a lacquer. Upon completion of the work, plaintiff followed Newman out the door and remained on the porch talking to

her friend, Dolores Thorpe. A few minutes later she re-entered her apartment to answer the telephone and as she picked up the receiver there was an explosion. Plaintiff's clothes caught on fire, with resultant serious burns to her body.

Plaintiff sued Newman, individually and doing business as Nuwood Furniture Service; Grant Furniture; General Electric Credit Corporation and H. Behlen & Bros., Inc. The latter two were let out of the case when their motions for summary judgment were granted. We are not concerned with Newman's third-party complaint against an insurance company and its agency.

At the conclusion of plaintiff's case Grant moved for an involuntary dismissal and for judgment in its favor. The trial judge reserved decision, and the motions were renewed at the close of the entire case. They were denied. The jury returned a verdict of $125,000 against Newman and Grant. Plaintiff then moved to amend the resultant judgment so as to include interest under R. 4:42-11, and after argument the trial judge so ordered. Grant then moved for judgment n.o.v. and a new trial, and these motions were denied. Only Grant appeals.

Grant first argues that Newman was an independent contractor and it was not vicariously liable for his negligence. It urges that the sole basis for the verdict and the judge's denial of all its motions was the court's view that the applicable law imputing liability to Grant was that expressed in the Restatement, Torts 2d, ยง 429 (1964). The judge charged that section at the request of plaintiff's attorney.

New Jersey has recognized the general rule that one who engages a contractor to do work not in itself a nuisance, is not liable for his negligent acts in the performance of the contract. Certain exceptions have been recognized: (1) where the work is in itself a nuisance or inherently dangerous, or (2) where the landowner in fact retains or exercises control over the manner and means of the work, or (3) where he engages an incompetent contractor. Majestic Realty Associates,

Inc. v. Toti Contracting Co., 30 N.J. 425, 431-440 (1959). The cases cited in defendant's argument support no more than these principles. The "inherently dangerous" exception was ruled out of the case.

Neither the general rule nor the exceptions relate to a situation in which the independent contractor is allowed to become the apparent agent of the employer. There is nothing in the record to show that Grant retained or exercised control of Newman in the work that he did, or that Newman was an incompetent contractor.

There was enough here to establish an apparent agency: Grant's assurance that they would send somebody to repair the furniture when plaintiff phoned to complain of its condition, the phone call for an appointment that she received from Newman who said he was from Grant's, and his identifying himself when he arrived at her apartment that he was the man from Grant's who had come to fix the ...


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