On appeal from the Superior Court of New Jersey, Law Division, Union County.
King, Deighan and Bilder. The opinion of the court was delivered by King, P.J.A.D.
This case presents the question of whether a disappointed promisee may recover traditional tort damages for his personal injuries caused by a breaching promisor's failure to perform a contractual term. Plaintiff Christopher Coyle claims that he sustained personal injuries on December 21, 1980 in Hillside, Union County while moving band equipment onto a truck after an evening performance by a band which he owned and managed. Coyle claims that defendants had agreed by written contract to provide help to put the band's equipment back on the truck after the performance. Coyle contends that if defendants had performed the contract as promised he would not have suffered personal injuries and his consequent money damages. Defendants claim that if there was a breach Coyle was at best limited to traditional expectation damages for breach of contract, i.e., loss of the benefit of the bargain, and may not recover the usual measure of damages in a tort action, a lump sum for temporary and permanent disability, pain and suffering, and out-of-pocket expenses. Theobold v. Angelos, 40 N.J. 295, 304 (1963). Summary judgment went to defendants at the Law Division level.
The facts are a bit sketchy because we have only portions of the depositions and the certifications of the parties are not detailed. At the time of the accident at 1 a.m. on Sunday, December 21, 1980 plaintiff was the manager, but not a member, of a band called SVT. The band had a contract to play at defendant "Englander's", a club in Hillside, on that Saturday night. "Englander's" was a trade name for We Two, Inc. of which defendant Paul Dujets was the principal.
The contract was a printed form with a four-page typed "SVT Contract Rider" attached. According to plaintiff's certification a person named Michael Gaimon represented SVT in the negotiation and execution of the contract. The contract was actually signed by the drummer, Paul Zahl, one of the three SVT musicians. In the preamble to the contract SVT is referred to as "producer"; the "purchaser" is not identified. At the signature line where "purchaser" is to sign, we find the name "Paul Dujets." In plaintiff Coyle's certification he says that Dujets never said that he was acting for his corporate principal, We Two, Inc.*fn1 Coyle assumed that Dujets was the owner of "Englander's" and that "I was dealing with Paul Dujets, the individual."
The contract price for the performance was $450 plus 70% of any additional gross, up to $950. Admission was $5.50 a head. The potential gross with a capacity house of 200 was $1,100.
Of importance to this dispute is Clause Eight of the typed rider which said
4 stagehands (at least 2 must help load in) from load in to the end of SVT soundcheck.
4 stagehands 1/2 hour prior to end of performance until SVT's truck doors are closed.
Coyle contends that the contract as negotiated and executed required that defendants' stagehands were "to provide help to 'load-in' and 'load-out' equipment before and after the performance." Dujets evidently agreed with this interpretation because on deposition he said that "I'm supposed to supply help moving equipment."
There seems little doubt from plaintiff's allegations that defendants failed to supply the help contemplated by the contract. Coyle said in his deposition that as manager it was not his job to load equipment. Around 1 a.m. on December 21 Coyle asked Dujets for help. Dujets told Coyle to talk to the "sound man." Coyle did so but was told by the "sound man" that loading equipment was not "his job" either. Coyle did get some help but he said "basically nobody was helping us, but the sound man could have helped us a little bit, but I don't remember. I don't recall off hand, but their attitude was, you know, 'Do it yourself'."
The members of the band left the club after their performance, leaving plaintiff and the equipment. Before he was hurt, plaintiff was near the truck either rolling or positioning by himself an item of equipment weighing about 80 pounds as someone approached to assist him. It was "misty that night and there was like a new layer of ice that was laid down" in the street area where plaintiff was laboring. At this time plaintiff slipped on the snow and ice on the street, fell and allegedly was hurt.
In the complaint plaintiff claimed that defendants breached the term of the contract to provide adequate labor to move the equipment after the performance. Because of this failure plaintiff claims that he had to move the equipment himself and was hurt. Count One demanded damages for breach of contract; Count Two demanded damages for common-law negligence.
Defendants denied Dujets' individual responsibility, claimed that the snow and ice was the sole proximate cause, and that the plaintiff's negligence alone caused the accident. Summary judgment was granted to defendants. The judge's reason for the ruling was somewhat obscure. Apparently, he thought a breach of a term of the contract, if proved, did not permit recovery for the personal injuries and consequent damages suffered by plaintiff.
We perceive plaintiff's theory here solely as a claim that breach of a contractual term caused personal injuries to him. He claimed in the complaint that defendants "violated the contract agreement . . . by failing to supply adequate labor for the moving of certain items of equipment, necessitating plaintiff to attempt to move certain equipment and causing plaintiff to fall and be seriously injured." The second count of the complaint alleged a traditional theory of common-law tort liability for negligent maintenance of the premises proximately causing personal injuries. But as we construe this claim as presented in the Law Division, plaintiff made no effort to establish a common-law theory of tort liability for breach of duty to a business invitee. See Butler v. Acme Markets, Inc., 89 N.J. 270 (1982); Bates v. Valley Fair Enterprises, Inc., 86 N.J. Super. 1 (App.Div.1964) (duty of reasonable care to invitees to keep business property free of ice and snow). He relied on the contract, the breach, and his fall in the street causing injuries as a consequence of that breach. In his appellate brief plaintiff claims that the defendants "promised to supply four stagehands to move band equipment from the Club Englander's to the band's truck following the performance" and that the breach of this "clear duty" was the proximate cause of plaintiff's injuries. We thus treat this solely as a claim for breach of contract causing personal injuries, not as a breach of the common-law duty of due care owed a business invitee.
There is confusion among the cases and texts on the boundary between a contract action and a tort action. The consequences of the difference can be substantial. The recently
published Prosser and Keeton, Law of Torts § 92 at 655 (5th ed. 1984), states in discussing "Tort and Contract Obligations ...