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McDermott v. Tendun Constructors

Decided: June 17, 1986.

CHRISTINE MCDERMOTT, GENERAL ADMINISTRATRIX AND ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF MICHAEL MCDERMOTT, AND CHRISTINE MCDERMOTT, AS PARENT AND GUARDIAN OF INFANT MICHELLE MCDERMOTT, AND CHRISTINE MCDERMOTT, INDIVIDUALLY, PLAINTIFF-APPELLANT,
v.
TENDUN CONSTRUCTORS, ROHR INDUSTRIES, INC., ROHR INDUSTRIAL SYSTEMS, INC., ROHR CORPORATION, UNDERHILL CONSTRUCTION COMPANY, E.C. ERNST, INC., TERMINAL CONSTRUCTION COMPANY, DIC CONCRETE CORPORATION, NAGER ELECTRIC CO., INC., CONTROLMATION SYSTEMS, INC., AND LESTER B. KNIGHT AND ASSOCIATES, INC., DEFENDANTS-RESPONDENTS



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

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

Michels

Plaintiff Christine McDermott, as General Administratrix and Administratrix ad prosequendum of the Estate of Michael McDermott, and Christine McDermott, as parent and guardian of infant Michelle McDermott, and Christine McDermott, individually, appeals from a summary judgment of the Law Division entered in favor of defendants and third-party defendants: (1) TENDUN Constructors (TENDUN); (2) Terminal Construction Corporation (Terminal); (3) E.C. Ernst, Inc. (Ernst); (4) Nager Electric Co., Inc. (Nager); (5) DIC Concrete Corporation (DIC); (6) Underhill Construction Co. (Underhill); (7) Rohr Corporation a/k/a Rohr Industries, Inc., Rohr Plessey Motor Development Corporation, Rohr Plessey Corporation a/k/a Rohr Industrial Systems, Inc., Plessey Dynamics Corp., Plessey North America Corp., Plessey Company Limited (collectively referred to as Rohr); (8) Controlmation Systems, Inc. (Controlmation); and (9) Lester B. Knight and Associates, Inc. (Knight), which dismissed plaintiff's complaint, as well as all crossclaims, counterclaims, claims for indemnification and third-party complaints with prejudice in this wrongful death and survival product liability action.

Plaintiff instituted this action, grounded on claims of negligence, breach of warranty and strict liability in tort, against TENDUN, a joint venture consisting of contractor defendants

Terminal, Ernst, Nager, DIC and Underhill; Rohr, TENDUN's subcontractor and Knight, an architectural design firm. The suit arose from an accident at the New York Bulk and Foreign Mail Center (NYB & FMC) in Secaucus, New Jersey in which plaintiff's husband, Michael McDermott (decedent) was killed on December 15, 1979. At the time of the accident decedent, a mail handler at the NYB & FMC, was using an extendable conveyor that had been rolled into the trailer portion of a tractor-trailer. This conveyor was being used to convey parcel mail to decedent which he was to stack inside the truck.

When discovered by co-workers, decedent was found with his head partially under the head-end of the conveyor, which was located inside the trailer, with his legs pointing into the truck, away from the conveyor. It was later ascertained by the medical examiner that decedent's death had been caused by multiple skull fractures, with subdural hematoma, and multiple rib fractures with internal bleeding. As a result of her husband's death, plaintiff instituted this action against the above-named parties who were believed to be involved in the design, development and/or manufacturer of the conveyor during the construction of the NYB & FMC facility in the 1970's.

The record submitted in connection with this appeal reveals that on September 17, 1969, the United States Post Office Department (POD) entered into a contract with defendant Knight, an architectural firm, with respect to the construction of the NYB & FMC facility. Pursuant to the terms of this contract, Knight was to develop "new and improved engineering concepts and plans for mechanized mail processing systems in the New York Metropolitan Area." The contract further specifically provided that Knight was to:

furnish all engineering and other services and materials necessary for the development of a mail processing system concept for the two [planned] facilities, including the preparation of the specifications for the facilities and the mechanization to be used for mail processing. These specifications [were to] conform to best industrial practices and [were to] be adequate to permit the solicitation of bids for construction of the facilities and the procurement of the mail processing equipment to be used therein. [Emphasis supplied].

Pursuant to its contract with the POD, Knight thereafter prepared a bid package which was submitted to and approved by the POD. In developing this bid package, Knight prepared specifications and drawings which, pursuant to the terms of its contract with the POD:

ma[d]e use of existing POD standard components, drawings, design details and drawing practices to the extent that they [were] consistent with [its] overall plan for the design of these systems and [did] not interfere with [its] freedom to provide a functional system design in accordance with standard industrial practices. [Emphasis supplied].

Upon approving the bid package prepared by Knight, the POD entered into an inter-agency agreement with the United States Army Corps of Engineers (Corps). Pursuant to this contract, the Corps was to solicit bids, award contracts for and supervise the construction of the NYB & FMC. Accordingly, the Corps presented the bid package, prepared by Knight, to prospective contractors and, in May 1971, a contract for the construction of the NYB & FMC was awarded to TENDUN. Pursuant to the terms of the contract between TENDUN and the U.S. Government, TENDUN was to "perform [its] contract in strict accordance with the General Provisions and the . . . designated specifications, schedules, drawings, and conditions. . . ."

On July 23, 1971, TENDUN, as general-contractor, entered into a subcontract with Rohr for the fabrication of extendable conveyors to be used within the NYB & FMC facility. This contract included the fabrication of the conveyor with which decedent was working on the date of his death. This contract specifically required that Rohr "design, furnish and deliver . . . all of the mechanization equipment . . . in strict accordance with all of the Proposal Documents, Technical Provisions, Addenda, Amendments and Drawings, hereinafter referred to as 'The Contract Documents,' all as prepared by Lester B. Knight and Associates, Inc. . . . and the Department of the U.S. Army, Corps of Engineers. . . ."

Pursuant to these contract requirements, Rohr prepared layout shop drawings from the plans and specifications contained in the bid package. In doing this, Rohr utilized the design drawings and written specifications which had been prepared by Knight, in order to achieve a single shop drawing which graphically depicted the extendable conveyor and incorporated all details contained on the multiple contract documents. Once completed, these layout drawings were submitted to both Knight and the Corps for approval, since Knight was contractually bound to serve as consultant to the Corps throughout the duration of the construction project. It is not disputed that, ultimately, shop drawings prepared by Rohr, based upon Knight's design specifications, were approved for fabrication.

In initiating the fabrication of these extendable conveyors, Rohr prepared a pre-production model for inspection by TENDUN, the Corps and Knight. This model was visually inspected and put through operational testing in order to determine whether the conveyor complied with applicable plans and specifications. Following this and other such inspections, Rohr was provided with a series of punch-list deficiencies, which it corrected in order to bring the conveyor into compliance with contract plans and specifications. Thereafter, Rohr's subcontractor for fabrication, BRO-CON (a defunct non-party), completed production of all extendable conveyors which were required at the NYB & FMC and delivered them to the facility.

During these pre-production inspections, the "stop and go" control for the model extendable conveyor, which had been manufactured by Controlmation, was temporarily mounted on the machine, with clamps, in a location generally designated in the specifications prepared by Knight. According to these Sack Handling Systems Specifications, each extendable conveyor at the NYB & FMC was to be controlled "from a control station at the head end of the conveyor." During a pre-delivery inspection, Charles Schroer, the area engineer and resident contracting officer for the Corps, specifically directed where the push-button controls ultimately were to be permanently placed. Accordingly,

at the time the completed conveyors were installed at the NYB & FMC facility, the controls were affixed at the location designated by the Corps representative. There is no dispute that, when the conveyors were turned over to the POD, they were in full compliance with the contractual plans and specifications which had been prepared by Knight and approved and adopted by the POD.

Following decedent's death and the filing of plaintiff's complaint in July 1979, there followed two and one-half years of extensive discovery by all parties. Following the conclusion of discovery, all defendants moved for summary judgment. On December 22, 1983, the trial court granted summary judgment in favor of all defendants except Knight, dismissing all direct claims, crossclaims and third-party claims as to these parties. The summary judgment was thereafter certified as final, pursuant to R. 4:42-2. Both plaintiff and Knight appealed and, in an unpublished opinion filed December 18, 1984, we remanded the case for further proceedings, noting that we were "seriously disadvantaged by the failure of the trial judge to give . . . any finding or conclusions in support of his order." McDermott v. Lester B. Knight and Associates, Inc. (Docket Nos. A-2823-82T2 and A-2455-83T2).

On remand, following argument, Judge Longhi in the Law Division granted summary judgment in favor of all defendants and third-party defendants and against plaintiff, dismissing the complaints, cross-claims, third-party complaints and claims for indemnification with prejudice. The summary judgment as to all defendants, except Knight, was granted on the ground that these defendants were entitled to governmental immunity. The trial court denied Knight's motion for summary judgment on this ...


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