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Miltz v. Borroughs-Shelving

Decided: July 18, 1985.

LOUISE MILTZ, PLAINTIFF-APPELLANT AND CROSS-RESPONDENT
v.
BORROUGHS-SHELVING, A DIVISION OF LEAR SIEGLER, INC., DEFENDANT-RESPONDENT AND CROSS-APPELLANT, AND RITE-HITE, INC., DEFENDANT-RESPONDENT AND JOHN O'NEILL, INDIVIDUALLY AND T/A NATIONAL ERECTION SERVICE, JOINTLY, SEVERALLY AND IN THE ALTERNATIVE, DEFENDANTS



On appeal from the Superior Court of New Jersey, Law Division, Camden County.

Michels, Petrella and Baime. The opinion of the court was delivered by Michels, P.J.A.D.

Michels

Plaintiff Louise Miltz appeals from an order of the Law Division that denied her motion to amend her complaint to include a cause of action based on strict liability and from a judgment of involuntary dismissal entered at the close of her proofs against defendants Borroughs-Shelving, a division of Lear Siegler, Inc. (Borroughs), and Rite-Hite, Inc. (Rite-Hite). Borroughs cross-appeals from the judgment entered in favor of plaintiff and against defendant John O'Neill, individually and t/a National Erection Service (National Erection) on a molded jury verdict that fixed damages and prejudgment interest in the sum of $110,061.37.*fn1

The facts giving rise to this appeal are not substantially in dispute. On September 23, 1980, plaintiff commenced her employment as an assistant manager of the men's and shoe departments at Montgomery Ward's Jefferson Ward store in Cherry Hill, New Jersey. On January 11, 1981, plaintiff fell and sustained injury on a set of metal stairs leading from the store's sales area to the shoe stock room. She testified that just prior to the fall she had gone "up on the [stock room's] mezzanine" and had picked up five boxes of low men's sneakers.

She then "start[ed] coming down the stairs and they started to vibrate and . . . [she] felt [herself] going forward and [she] put [her] arm out and there was nothing to hold onto so [she] pulled back and held onto the step . . . there was no rail or anything." Plaintiff says that as a result of her fall she "tore her shoulder," causing "permanent spasms and weaknesses in her arm, a permanent 25% physical disability." Plaintiff has received workers' compensation benefits from her employer, Jefferson Ward.

At trial plaintiff attributed the cause of her fall to the improper installation of the stairs during the renovations immediately preceding the opening of the store in October 1980. She testified that prior to her fall the stairs lacked handrails and that they vibrated because they were not properly bolted to the wall under the top steps. Despite a series of employee complaints and efforts to have the stairs repaired, the store's owner, the Montgomery Ward Corporation, did not rectify the condition of the stairs until after plaintiff's fall.

The proofs further show that prior to the opening of the store Montgomery Ward entered into a contract with Borroughs-Shelving for the erection of shelving, the installation of stairs, and the construction of a mezzanine in the store's storage area. Borroughs manufactured and supplied the components for the shelving but subcontracted the labor portion of the installation to National Erection. Borroughs also subcontracted both the manufacture and the installation of the stairs and mezzanine to Rite-Hite. Rite-Hite provided the components for the mezzanine and the stairs but, like Borroughs, subcontracted the labor portion of the installation to defendant National Erection.

National Erection began construction of the stairs and mezzanine in early September, 1980. During the construction Arnold Hoehn, the national operations manager of Borroughs, and Jerry Mintz of Rite-Hite visited the Cherry Hill store "from time to time" to observe the progress of the work. Paul Gress,

an installation supervisor for Montgomery Ward, also made a series of "walk-through inspections" of the Cherry Hill site with John O'Neill, president of National Erection, and Durwood Daniels, a superintendent of National Erection. At the time of Gress's final inspection National Erection's work was 95 percent complete. However, certain components, including kickplates and handrails for the stairs in the shoe stock room area, had not yet been delivered. O'Neill testified that the handrails were delivered on October 10, 1980, and that his workers installed them. However, Gress testified that while the handrails may have been delivered to the store, he had to hire a different contractor subsequent to plaintiff's fall to install the handrails and complete the stairs.

At the completion of plaintiff's proofs the trial court concluded that reasonable minds could not differ as to the facts surrounding the accident and that there was no evidence of negligence on the part of either Borroughs or Rite-Hite. The trial court found that neither Borroughs nor Rite-Hite could be held liable as a matter of law for the alleged negligence of National Erection in the performance of its contract for the construction or installation of the stairs, including the handrails. The trial court thereupon granted the motions of Borroughs and Rite-Hite for judgment. At the conclusion of all the proofs the jury found that National Erection was negligent and that its negligence was the proximate cause of the accident. A jury subsequently determined the amount of damages to be awarded, and the trial court thereupon molded the jury verdict in favor of plaintiff and against National Erection in the amount of $110,061.37. This appeal followed.

Plaintiff contends that the trial court erred in denying her motion to amend the pleadings, in not permitting her to submit proof on the issue of negligent inspection of the stairs, and in holding that Borroughs and Rite-Hite could not be held liable for the negligent installation of the stairs by National Erection. We are entirely satisfied from our view of the record in light of the arguments presented that the trial court properly denied

plaintiff's motion to amend the pleadings to include the additional theories or causes of action against Borroughs and Rite-Hite and properly granted the motions for judgments of involuntary dismissal in favor of both of these defendants. See R. 2:11-3(e)(1)(E). However, further comment is necessary with respect to some of plaintiff's contentions.

I.

Plaintiff first claims that the allegation in the amended complaint that "the injuries sustained by [her] were proximately caused by defendant . . . in its failure to install said stairs properly" was sufficient to place Borroughs on notice of plaintiff's intention to assert a theory based on Borroughs's negligent inspection of the stairs. In our view this argument is clearly without merit. While our rules of court require that all pleadings be construed liberally in the interest of justice, R. 4:5-7, a party's pleadings must nonetheless fairly apprise an adverse party of the claims and issues to be raised at trial. See Jersey City v. Hague, 18 N.J. 584, 601-603 (1955); Melone v. Jersey Central Power & Light Co., 18 N.J. 163, 174 (1955). To be adequate the pleadings must contain a claim for relief, a statement of the facts on which the claim is based showing that the pleader is entitled to relief, and a demand for judgment for the relief to which the pleader deems him or herself entitled. R. 4:5-2.

Here the plaintiff's complaint and amended complaint failed to make the necessary factual allegations and claims for relief sufficient to sustain a cause of action based on a negligent inspection theory. See Schantz, et al. v. Rachlin, 101 N.J. Super. 334, 344 (Ch.Div.1968), aff'd o.b., 104 N.J. Super. 154 (App.Div.1969). Borroughs contracted the manufacture and installation of the stairs to Rite-Hite and could not be held liable for either Rite-Hite's or National Erection's negligence in the course of the stairs' construction. See Majestic Realty Associates, Inc. v. Toti Contracting Co., 30 N.J. 425, 431 (1959).

There is also no indication in the pleadings (nor elsewhere in the record) that Borroughs had a duty independent of its contract with Montgomery Ward to inspect the stairs during their installation. Any inspection of the job site would have constituted a duty voluntarily assumed by Borroughs independent of its contractual obligation to install the stairs and any claim of negligence occurring during that inspection should have been pleaded separately from plaintiff's other allegations. In our view the trial court did not abuse its discretion by finding that Borroughs's negligent inspection theory was not properly raised by the pleadings.

Moreover, contrary to plaintiff's further claim "substantial justice" cannot serve as a basis for permitting the amendment of the pleadings to include a negligent inspection theory. Pursuant to R. 4:9-1 the trial courts, in their discretion, should permit parties to amend their pleadings "freely . . . in the interest of justice." R. 4:9-1. See Grobart v. Society for Establishing Useful Mfrs., 2 N.J. 136, 146-147 (1949); Hudson Foam Latex Products, Inc. v. Aiken, 82 N.J. Super. 508, 517 (App.Div.1964); Fluoro Electric Corp. v. Smith Transport Ltd., 58 N.J. Super. 287, 294 (App.Div.1959), aff'd, 32 N.J. 277 (1960). Nevertheless, "[w]hile motions to amend pleadings are required by the express terms of the rule to be liberally granted, there remains . . . a necessary area of ...


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