This personal injury action raises a question in the application of the Comparative Negligence Act, N.J.S.A. 2A:15-5.1, et seq. If there is evidence of conduct which, if believable to the jury, would constitute negligence on the part of the employer of a plaintiff, should the judge present to the jury by special verdict the question of ascertaining the percentage of employer's negligence even though the employer is not a party to the suit?
On November 3, 1975 plaintiffs Walter Jarrett and Robert Ryan were employees of the Thomas Procter Company, Inc. (Procter), which, as part of its heavy construction business, dismantles, removes and transports structures used by others in the manufacturing of construction products. Procter was retained by defendant Duncan Thecker Associates (Thecker), the owner of a concrete batching plant constructed on property owned by defendant Houdille Construction Materials, Inc. (Houdille), situate in Manchester Township, Ocean County, New Jersey, to dismantle the plant and transport it to a different locality. While dismantling the plant a hopper being lifted by one of Procter's cranes caused the crane to buckle, thereby injuring plaintiffs who were part of a crew dismantling the plant.
Plaintiffs alleged negligence on the part of Houdille and Thecker, asserting that the hopper was filled with caked cement causing the added weight to buckle the crane. They argued that as business invitees they were owed the duty by defendants of exercising reasonable care to maintain the premises where the work was to be performed in a reasonably safe condition. Steward v. Esso Standard Oil Co. , 111 N.J. Super. 426 (App.Div.1970). Defendants asserted that Procter had the expertise and control over the method by which the dismantling was to take place and argued that no duty was owed to plaintiffs, as Procter's employees. Rodrigues v. Elizabethtown Gas Co. , 104 N.J. Super. 436 (App.Div.1969); Jensen v. Somerset Hosp. , 58 N.J. Super. 204 (App.Div.1959). Further, defendants argued that even assuming they were negligent in the maintenance of the work premises, Procter was also negligent in the manner it
supervised the dismantling of the concrete plant. Defendant Houdille was involuntarily dismissed as a party to this action by the court, since it found that the plant in question was one owned, operated and controlled by Thecker and not Houdille, and therefore the latter owed no duty to plaintiffs.
During the trial testimony was given from which the jury could conclude that the contractor Thecker, the remaining defendant, created a condition which was unreasonably safe and that it failed to make reasonable inspection or give notice of the unsafe condition to plaintiffs. Steward, supra , 111 N.J. Super. 426; Zentz v. Toop , 92 N.J. Super. 105 (App.Div.1966). Other testimony was presented from which the jury could conclude that Procter, in the manner it dismantled the plant and its failure to make a proper inspection of the hopper, was negligent and its negligence contributed to the cause of the accident. Plaintiffs' actions in the dismantling of the plant also raised a possibility that the jury would find plaintiffs were negligent. Defendant Thecker requests that the court submit as a special verdict to the jury the question of employer Procter's negligence with an instruction that they apportion its percentage of negligence.
N.J.S.A. 2A:15-5.1 reads:
Contributory negligence shall not bar recovery in an action by any person or his legal representative to recover damages for negligence resulting in death or injury to person or property, if such negligence was not greater than the negligence of the person against whom recovery is sought, but any damages sustained shall be diminished by the percentage sustained of negligence attributable to the person recovering.
N.J.S.A. 2A:15-5.2 reads:
In all negligence actions in which the question of liability is in dispute, the trier of fact shall make the following as findings of fact:
(a) The amount of damages which would be recoverable by the injured party regardless of any consideration of negligence, that is, the full value of the injured party's damages;
(b) The extent, in the form of a percentage, of each parties' negligence. The percentage of negligence of each party shall be based on 100% and the total of all percentages of ...