On appeal from the Superior Court of New Jersey, Law Division, Essex County, L-6414-95.
Before Judges Keefe, Eichen*fn1 and Steinberg.
The opinion of the court was delivered by: Steinberg, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Plaintiffs, Robert Klier, Sr. and Marianne Klier,*fn2 his wife, appeal from an order dismissing their complaint with prejudice as to defendant Sordoni Skanska Construction Company (defendant or Sordoni) "for failure to state a cause of action against defendant," and from the denial of their subsequent motion seeking to vacate the prior order and restore the case to the trial list. They also appeal from a previous interlocutory order that denied their application to have unrestricted ex parte communications with all former employees of A. G. Mazzocchi, Inc. (Mazzocchi), Charles Imbimbo, George Daniel and Robert Gordon, without the express consent of defendants' attorney. We reverse each order and remand for further proceedings.
This case arises out of a construction site accident. In January 1993, defendant entered into a contract with Prutaub Joint Venture, the owner of the mall at Short Hills, for demolition, asbestos removal, remodeling and expansion, preparation of three department store pads and the addition of three parking decks. In March 1993, defendant entered into a subcontract with Mazzocchi for certain demolition work.
On January 11, 1994, the day of the accident that led to this lawsuit, plaintiff was a laborer employed by Mazzocchi. He had been hired out of Laborer's Local Union 526. Although he had previously worked at the site for other subcontractors of Sordoni, it was his first day on the job for Mazzocchi. Plaintiff and Gordon, a laborer from the same union and local, were directed to report to Imbimbo, who was Mazzocchi's foreman. They were joined by Daniel, a carpenter hired out of Carpenter's Union Local 620 by Mazzocchi about a week and one-half before the accident. Plaintiff, along with Gordon, Daniel and Imbimbo were demolishing a large overhang or canopy on the south side of Bloomingdale's Department Store.*fn3 The underside of the canopy was lath and mortar, with connection stringers wired to structural components. The demolition procedure involved the cutting of each wire and the use of wrecking bars, a sawsall, lump hammers and a two-by-four to pry away the soffit. When the soffit was loose, partly lying on the ground, Imbimbo told plaintiff, Gordon and Daniel to remove tools that were lying under it. While they were doing so, and while plaintiff and Gordon were under the canopy, Imbimbo, without warning, started prying at the attached soffit with an eight or ten-foot two-by-four. The soffit suddenly broke loose and fell, hitting plaintiff, causing him to sustain serious personal injuries. The case was scheduled for trial on September 29, 1998.
On that date, immediately prior to trial, the judge to whom the case had been assigned stated that he had "serious concerns about the cause of action." Noting that the case would take approximately two weeks to try, the judge said, "[i]t seems to me that it would be good administration to determine whether there is a cause of action. At least in my view." The judge stated that he recognized that he could require the plaintiff to present his case, and, if there was a motion at the conclusion of plaintiff's case, he would "accept the truth of oral statements made on behalf of the plaintiff and . . . draw all inferences which may reasonably be drawn against the motion to dismiss." He proposed to "shortcut that procedure and to have [plaintiff's attorney] put on the record the best case that he hopes to produce here. And I will apply the rule that I – - that is applied at the conclusion of the plaintiff's case which I have already enunciated. And I will hear argument and make a determination as to whether or not, in my view, there is something which should go to the jury."
The judge said that he had used that procedure before and he felt, "[i]t is good administration from the judicial point of view. I also think it is good from the parties' point of view," since the trial would be long and expensive.
Although there appears to have been a discussion in chambers, off the record, regarding the procedure proposed by the judge, on the record plaintiff's attorney began to state his case without objection to the procedure. However, in the course of his argument, he stated that he was not "prepared to argue this motion" because he had not brought his file or the report of his expert. The argument was postponed to afford counsel an opportunity to prepare, and to submit his expert's report. On October 1, 1988, after hearing further argument, the motion judge refused to hold defendant, the general contractor, liable for the "egregiously stupid" act of Imbimbo, who was an employee of Mazzocchi, the subcontractor, who caused the canopy to collapse by prying at its soffit.
Plaintiffs filed a motion seeking reconsideration, supported by a supplemental engineering report. The judge heard oral argument on the motion, and noted that, "It strikes me that this [report] . . . is a net opinion." The judge reserved decision and, without any further opinion, later entered an order denying the motion.
On this appeal, plaintiffs raise the following arguments:
POINT ITHE TRIAL COURT'S PROCEDURE IN INITIATING AND CONDUCTING, SUA SPONTE, A PROCEDURE TO DISMISS PLAINTIFFS' CASE FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE ...