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Bortz v. Rammel

Decided: July 1, 1977.

RONALD G. BORTZ AND BARBARA BORTZ, HUSBAND AND WIFE, PLAINTIFFS-APPELLANTS,
v.
CHESTER RAMMEL, MAURICETOWN FIRE COMPANY, SMITH & RICHARDS LUMBER COMPANY, A NEW JERSEY CORPORATION, COMMERCIAL TOWNSHIP (CUMBERLAND COUNTY), WARREN HOLLINGER, RICHARD POLHAMUS, CONCORD FABRICATORS, A NEW JERSEY CORPORATION, KENNETH CLARK, WALTER SHARP AND FREDERICK H. HANDT, JR., DEFENDANTS AND THIRD PARTY PLAINTIFFS, V. TRUSWAL SYSTEMS, INC., A CORPORATION OF CALIFORNIA AND ISAAC SHEPPARD, JR., P.E., THIRD-PARTY DEFENDANTS



Fritz, Ard and Pressler. The opinion of the court was delivered by Pressler, J.A.D.

Pressler

This is a personal injury action brought by plaintiffs Ronald G. Bortz and his wife Barbara Bortz, who sued per quod , seeking recovery for the serious injuries sustained by plaintiff husband in a building construction accident. The action, which is based on a variety of negligence, strict liability in tort and warranty theories, names ten separate defendants, each of whose conduct is alleged to have substantially contributed to the accident. Summary judgments were entered dismissing the complaint as to all defendants and plaintiffs appeal.

According to the substantially undisputed facts appearing from the pleadings, pretrial order, experts' reports*fn1 and transcripts of extensive pretrial depositions, plaintiff was an employee of one Harold Orr, a carpenter and roofer, against whom he has successfully concluded a workers' compensation action arising out of this accident. Orr had been retained by defendant Chester Rammel, a general contractor, to erect an open-span A-frame roof on the new firehouse that Rammel was constructing for the defendant Mauricetown Fire Company. The sketchy plans and specifications for the firehouse on the basis of which construction was to proceed and on the basis of which a building permit was issued by defendant Warren Hollinger, building inspector of defendant

Commercial Township, were not prepared by either a licensed architect or licensed engineer, but rather by one of the firemen, defendant Walter Sharp. It is conceded that these plans and specifications were so minimal in nature as not to have conformed with even the most basic requirements of any recognized building construction code, including the B.O.C.A. code, which was in effect in the township. It is further undisputed that Orr, having been informed by Rammel that an A-frame roof was desired, himself conceived of the precise manner and detail of its construction, deciding upon the use of approximately 34 prefabricated triangular wooden trusses, each some 65 feet in length and 14 feet in height, to constitute the frame of the roof. Orr ordered the trusses from his regular supplier, defendant Smith & Richards Lumber Co., which, since it did not itself fabricate or stock this item nor have any substantial experience therewith, ordered them for Orr from defendant Concord Fabricators (Concord). Concord, in turn fabricated the trusses in accordance with the general specifications supplied by third-party defendant Truswal Systems, Inc. (Truswal), which was also the manufacturer and supplier of a metal plate that was an integral part of the completed wooden truss. The truss specifications had been designed by Truswal's engineer, third-party defendant Isaac Sheppard, Jr.*fn2 The trusses, in order to be erected, had to be raised to the roof level, and for this purpose Orr had retained the service of defendant Kenneth Clark, a crane operator.

The operation of raising the trusses and securing them in place was a time-consuming undertaking. On the first day devoted to this enterprise, eight trusses were placed and permanently braced by the use of plywood sheeting. On the

second day some 18 to 20 trusses had been placed before the accident occurred, of which approximately the first half had been temporarily but inadequately braced and the second half had not been braced at all, resulting in the untoward instability of the entire second day's addition to the structure. The accident occurred when a strong gusty wind suddenly arose just after the eighteenth or twentieth truss had been raised and placed, creating a falling domino effect in which truss after truss collapsed, causing plaintiff, who was in the process of nailing the trusses, to be thrown to the ground. He survived the impact but was rendered a paraplegic.

Certain other salient and undisputed facts are here critical. Although there were no written agreements, it is clear that Rammel was functioning as the general contractor and that it was he who selected Orr, with whom he had frequently worked in the past, as the roofing subcontractor. It is also inferable that Rammel was as fully knowledgeable as Orr regarding the mechanics of erecting the trusses, and it was in fact Rammel who completed the roof after the accident. It is further noted that the first day's work remained fully intact despite the accident and was incorporated into the final roof, and also that Rammel, in completing the roof, used the remaining trusses originally delivered to the job but not yet placed on the building when the accident occurred. Orr himself had previously worked with Clark, the crane operator, who was obviously acting as Orr's subcontractor. All of them, Rammel, Orr and Clark, had had substantial experience in the general type of work which each respectively had undertaken in this construction.

Finally, and of greatest significance, it is not disputed that had the trusses been properly and adequately braced as they were being raised and placed on the second day, they would have withstood the unexpected wind force and the accident would never have taken place. In this regard it is also undisputed that Orr fully appreciated the nature of the materials he was working with, the need for proper bracing as the work progressed, the resultant instability and vulnerability of

the work-in-progress without proper bracing, and the fact that he was not properly bracing the trusses as they were being placed. The inescapable inference is that because he had hired Clark by the hour, and because proper bracing of the trusses as they were raised would have substantially increased the time interval between the raising of one truss and the next, and because the weather was calm and the danger seemed, therefore, minimal, Orr took the calculated risk of reducing his costs by planning to raise all of the trusses first and adequately securing them later. Had there not been the abrupt and unexpected weather change in the middle of the job, his plan would no doubt have succeeded. Tragically for plaintiff, it did not.

Against this background of undisputed fact, it was essentially the conclusion of the trial judge that, questions of breach of duty legally owed notwithstanding, the alleged culpable conduct of none of the parties to this action could reasonably be deemed to have been a substantial factor in bringing this accident about. For the reasons herein stated, we are constrained to agree as to all defendants except Rammel, the general contractor. We therefore affirm the summary judgments entered as to all other defendants and reverse the summary judgment entered in his favor and remand for trial. In so doing, we are fully aware of the nature and extent of the burden of the moving parties to have excluded the reasonable possibility of a genuine dispute of material fact. R. 4:46-2. And see the now classic statement of Judson v. Peoples Bank & Trust Co. of Westfield , 17 N.J. 67, 73-77 (1954). We are, however, satisfied that all but Rammel succeeded in ...


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