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Board of Trustees of Union College v. Kennerly

Decided: February 9, 1979.

THE BOARD OF TRUSTEES OF UNION COLLEGE, A PRIVATE EDUCATIONAL INSTITUTION AND THE NEW JERSEY EDUCATIONAL FACILITIES AUTHORITY, A PUBLIC CORPORATION AND GOVERNMENT INSTRUMENTALITY ORGANIZED UNDER THE LAWS OF THE STATE OF NEW JERSEY, PLAINTIFFS,
v.
KENNERLY, SLOMANSON & SMITH, A NEW YORK PARTNERSHIP FORMERLY KNOWN AS HAMBY, KENNERLY, SLOMANSON & SMITH, MCFARLAND-JOHNSON ENGINEERS, INC., A NEW YORK CORPORATION FORMERLY KNOWN AS MCFARLAND-JOHNSON-GIBBONS ENGINEERS, INC., ELECTRICAL INSTALLATIONS, INC., A NEW JERSEY CORPORATION AND PAVING MATERIALS & CONSTRUCTION COMPANY, A DIVISION OF C.H. WINANS COMPANY, INC., A NEW JERSEY CORPORATION, DEFENDANTS, AND PAVING MATERIALS & CONSTRUCTION COMPANY, A DIVISION OF C.H. WINANS COMPANY, INC., A NEW JERSEY CORPORATION, DEFENDANT AND THIRD-PARTY PLAINTIFF, V. TRAVELERS INDEMNITY COMPANY, A CONNECTICUT CORPORATION AUTHORIZED TO DO BUSINESS IN THE STATE OF NEW JERSEY, THIRD-PARTY DEFENDANT, AND ELECTRICAL INSTALLATIONS, INC., A NEW JERSEY CORPORATION, DEFENDANT AND THIRD-PARTY PLAINTIFF, V. MAYER AND FELDHEIM ASSOCIATES, INC., THIRD-PARTY DEFENDANT



McKenzie, J.s.c.

Mckenzie

Does an implied warranty of fitness attach to the supplying of the design and specifications for the installation of the lighting system for a parking lot? This is the principal question raised in the defendant's motion for partial summary judgment. The court previously granted the motion in an oral opinion to which this is supplemental.

On or about April 20, 1971 defendant Kennerly, Slomanson and Smith, a New York partnership (hereinafter referred to as the "architect"), contracted with plaintiff Union College to provide architectural and engineering services for the construction of a parking lot and road extension on lands leased by plaintiff in Cranford, New Jersey. The architect, in turn, contracted with McFarland-Johnson Engineers, Inc. (hereinafter referred to as the "engineer") for site engineering services in connection with the construction project. Among the engineer's responsibilities were the preparation of

construction specifications for the parking lot's lighting system and the supervision of the installation of the lighting system in compliance with those specifications. Plaintiff alleges that the lighting system, installed under the defendant engineer's supervision and according to its specifications, is defective and seeks recovery based upon negligence and breach of express and implied warranties.

On this motion for partial summary judgment defendant engineer seeks to strike the allegations of breach of warranty. Defendant argues that no express warranties were given to any of the parties, and that an allegation of breach of an implied warranty of fitness as a matter of law does not state a cause of action against a professional such as an engineer.

With regard to the allegation of an express warranty, there is no evidence of such a warranty at this point in the case. The writings between the parties indicate no basis for this claim. However, plaintiff argues that parol evidence may indicate an oral warranty running from the engineer to the architect, of which it would be the third-party beneficiary. If there is evidence of such an express warranty it would defeat the motion for partial summary judgment, since genuine issues of fact would then arise. Cf. Platt v. New Irvington Hotel of Lakewood, Inc. , 85 N.J. Super. 330, 340 (App. Div. 1964).

All discovery has not been completed. Plaintiff seeks to take depositions of some of defendants' witnesses. While it may be unlikely that such evidence will be forthcoming, the party seeking to establish the fact should be entitled to exhaust all discovery before the claim is disposed of summarily. See Templeton v. Glen Rock , 11 N.J. Super. 1, 4-5 (App. Div. 1950). Since plaintiff has not exhausted the possibility of developing evidence of an oral warranty, the motion for summary judgment on the claim of express warranty is premature and will be denied without prejudice to its being renewed when discovery has been completed.

With regard to the claim of an implied warranty of fitness, the gravamen of the complaint is that in designing and furnishing specifications for the lighting system, the engineer impliedly warranted that the system as designed and specified would be reasonably fit for the use intended. Plaintiff claims the existence of an implied warranty both under the Uniform Commercial Code, N.J.S.A. 12A:2-315, and under the body of case law that has arisen since Henningsen v. Bloomfield Motors, Inc. , 32 N.J. 358 (1960). See Santor v. A & M Karagheusian, Inc. , 44 N.J. 52, 66-67 (1965); Schipper v. Levitt & Sons, Inc. , 44 N.J. 70 (1965); Newmark v. Gimbel's, Inc. , 54 N.J. 585 (1969), applying the principle of strict liability in tort to various transactions.

This court will not deal at length with the history and relationship of the implied warranty of fitness under the Uniform Commercial Code and the principle of strict liability in tort. While the two theories differ (see the court's discussion in Heavner v. Uniroyal, Inc. , 63 N.J. 130, 146-155 (1973)), the central principle of strict liability is common to both. 2 Frumer & Friedman, Products Liability , ยง 16A(4)(a) (1978).

In New Jersey, actions under either theory have been allowed only in cases involving the supply or manufacture of defective products. See, e.g., Cintrone v. Hertz Truck Leasing & Rental Service , 45 N.J. 434 (1965), and cases cited, supra. Although our courts have refused to base liability on rigid distinctions between the sale of a product and the furnishing of services in a situation involving elements of both (see Newmark v. Gimbel's, Inc., supra 54 N.J. at 593-595), and have emphasized that policy considerations will govern the application of the doctrine of strict liability regardless of whether such activity be characterized as a sale or a service (see Brody v. Overlook Hospital , 127 N.J. Super. 331 (App. ...


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