SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-3802-93T1
JOHN DAWSON and JUDY DAWSON,
LOREN HALTER and ADELAIDE HALTER
and GRANVILLE WILLIAMS and
JOYCE WILLIAMS,
Plaintiffs-Appellants,
v.
BUNKER HILL PLAZA ASSOCIATES,
SOUTHERN PINE INSPECTION BUREAU,
BOWATER LUMBER CO. and MANNA
CRANE SERVICE, INC.,
Defendants-Respondents
and Cross-Respondents,
and
COHEN-SHATZ INVESTMENTS, LENOARD
COHEN, KENNETH SHATZ, STEVEN A.
NEIBERG, RAPS INVESTMENTS, WILLIAM
P. BOWMAN, DENNIS POWELL, GLENDALE
CAMPUS ASSOCIATES, GLENDALE BUILDERS,
INC., U.S. COMPONENTS, INC.,
WEYERHAUSER, INC., GILMAN BUILDING
PRODUCTS, MINARET DESIGN GROUP,
VAL V. FAJARDO, MEHMET Y. ILTER
and BEMAX OF FLORIDA, INC.,
Defendants,
and
HADDONFIELD LUMBER COMPANY, INC.,
Defendant-Respondent
and Cross-Appellant.
Argued November 14, 1995 - Decided April 10, 1996
Before Judges Michels, Villanueva and Kimmelman.
On appeal from Superior Court of New Jersey
Law Division, Gloucester County.
A. John Falciani argued the cause for appellants
John Dawson and Judy Dawson (Angelo J. Falciani,
attorney; A. John Falciani, of counsel and on the brief).
Louis D. Fletcher argued the cause for appellants
Loren Halter and Adelaide Halter and Granville
Wiilliams and Joyce Williams, deceased.
Thomas A. Shovlin argued the cause for respondent
and cross-appellant Haddonfield Lumber Company, Inc.
(Riley, Shovlin & Jones, attorneys; Mr. Shovlin,
of counsel and on the brief).
John R. Gercke argued the cause for respondent and
cross-respondent Bunker Hill Plaza Associates (Gercke,
Dumser & Feld, attorneys; Mr. Gercke and Steven
Antinoff, of counsel and on the brief).
Edward H. Keiper argued the cause for respondent and
cross-respondent Manna Crane Service (Mr. Keiper of
counsel; Alan P. Bruce, on the brief).
No brief was filed on behalf of respondents and cross- respondents Southern Pine Inspection Bureau and Bowater
Lumber Co.
The opinion of the court was delivered by
MICHELS, P.J.A.D.
Plaintiffs John Dawson (Dawson) and Judy Dawson, Loren Halter (Halter) and Adelaide Halter, and Granville Williams (Williams) and Joyce Williams appeal from summary judgments of the Law Division entered in favor of defendants Bunker Hill Plaza Associates (Bunker Hill), Manna Crane Service, Inc. (Manna Crane) and Haddonfield Lumber Company, Inc. (Haddonfield Lumber) in this personal injury products liability tort action. Haddonfield Lumber cross-appeals from those portions of the summary judgments
that dismissed its cross-claims against Bunker Hill, Manna Crane
and defendants Bowater, Inc. and Southern Pine Inspection Bureau.
Plaintiffs Dawson, Halter and Williams were carpenters
employed by I & B Builders and were injured while erecting and
temporarily bracing prefabricated roof trusses on a building at
the Bunker Hill Plaza Shopping Center in Washington Township, New
Jersey. The trusses collapsed in a domino-like fashion, throwing
the three plaintiffs to the concrete floor below. The trusses
then fell on top of plaintiffs, causing serious personal injuries
to each plaintiff. Expert opinion established that the trusses
collapsed because they were inadequately braced.
Dawson, Halter and Williams instituted this action to
recover damages for the personal injuries each sustained as a
result of the accident, and their wives sued per quod. In
addition to suing Bunker Hill, the partnership which owns the
property; Manna Crane, the crane service on the construction
project; and Haddonfield Lumber, a lumber supplier, plaintiffs
also sued defendant Glendale Builders, Inc. (Glendale Builders),
the general contractor; defendants Joseph Vento, Kenneth Shatz,
Leonard Cohen, William P. Bowman and Dennis Powell, Glendale
Builders stockholders; U.S. Components, Inc., the manufacturer or
fabricator of the roof trusses; Minaret Design Group and Val
Fajardo, the architects on the project; Mehmet Ilter and Bemax of
Florida, Inc., the engineers that designed the trusses; Bowater
Lumber Co. (Bowater); Weyerhauser, Inc. (Weyerhauser), suppliers
of wood for the trusses; Gilman Building Products (Gilman), a
supplier of wood products; and Southern Pine Inspection Bureau
(Southern Pine), an agency that provided guidelines for grading
and inspecting lumber.
After issue was joined and discovery completed, the trial
court granted summary judgment in favor of Weyerhauser and
Gilman. Thereafter, the trial court granted summary judgment in
favor of Bunker Hill, Manna Crane, Bowater and Southern Pine.
The matter then proceeded against Glendale Builders, U.S. Components, Minaret Design, Val Fajardo, Bemax of Florida and Mehmet
Ilter. Plaintiffs settled with these defendants and then
appealed the summary judgments in favor of Bunker Hill, Manna
Crane, Haddonfield Lumber, Bowater and Southern Pine. Haddonfield Lumber cross-appealed the dismissal of its claims against
the other defendants. While the appeal was pending, plaintiffs
settled with Bowater and Southern Pine, continuing the appeal
solely against Bunker Hill, Manna Crane and Haddonfield Lumber.
Plaintiffs seek a reversal of the summary judgments in favor
of Bunker Hill, Manna Crane and Haddonfield Lumber, contending
that: (1) questions of fact were presented based on the contractual dispute between Bunker Hill and Glendale Builders concerning
general contracting services; (2) sufficient evidence of involvement in the construction on the part of Bunker Hill existed to
create a fact issue for the jury; (3) expert evidence of OSHA
violations and other violations of customary trade practices and
applicable codes established liability on Bunker Hill's part; (4)
a jury question existed concerning whether Manna Crane acted
negligently and whether Manna Crane's negligence was a substantial factor in the collapse of the trusses; (5) a fact issue
existed regarding whether Haddonfield Lumber is liable for
selling defective component parts used by U.S. Components in the
manufacture of the trusses; and (6) a prima facie case of negligence against Haddonfield Lumber was established based on their
undertaking to determine the type and quantity of bracing
material supplied.
We are satisfied from our study of the record and arguments
presented that the trial court properly granted summary judgment
in favor of Bunker Hill, Haddonfield Lumber and Manna Crane, and
that no genuine issue of material fact existed which would
preclude the grant of summary judgment in their favor whether the
matter is viewed traditionally under Judson v. Peoples Bank &
Trust Co.,
17 N.J. 67 (1954), or under the standard recently
announced in Brill v. Guardian Life Insurance Co. of America,
142 N.J. 520 (1995). Moreover, we are satisfied that all issues of
law raised by plaintiffs are clearly without merit. R. 2:11-3(e)(1)(E). Further comment, however, with respect to some of
plaintiffs' contentions is appropriate.
Plaintiffs contend that Bunker Hill, as owner of the property, owed a duty to them to supervise the means and methods of construction and could not be excused from that duty based upon an unsigned contract between it and Glendale Builders. Plaintiffs also contend that Bunker Hill is liable because it violated OSHA regulations and other customary trade practices in the construction of the project. We disagree.
"As a general rule, a landowner has a non-delegable duty to use reasonable care to protect invitees against known or reasonably discoverable dangers." Kane v. Hartz Mountain Indus., Inc., 278 N.J. Super. 129, 140 (App. Div. 1994), aff'd, 143 N.J. 141 (1996); see also Cassano v. Aschoff, 226 N.J. Super. 110, 114 (App. Div.), certif. denied, 113 N.J. 371 (1988). However, an owner is not responsible for harm which occurs to an employee as a result of the very work which the employee was hired to perform. Kane, supra, 278 N.J. Super. at 140. Under this well recognized exception to the general rule, "[t]he duty to provide a reasonably safe place to work is relative to the nature of the invited endeavor and does not entail the elimination of operational hazards which are obvious and visible to the invitee upon ordinary observation and which are part of or incidental to the very work the contractor was hired to perform." Sanna v. Nat'l Sponge Co., 209 N.J. Super. 60, 67 (App. Div. 1986) (citing Wolczak v. Nat'l Elec. Prods. Corp., 66 N.J. Super. 64, 75 (App.
Div. 1961)). Stated differently, "[t]he landowner is under no
duty to protect an employee of an independent contractor from the
very hazard created by doing the contract work." Ibid; see also
Wolczak, supra, 66 N.J. Super. at 75. Further, "[t]he landowner
may assume that the worker, or his superiors, are possessed of
sufficient skill to recognize the degree of danger involved and
to adjust their methods of work accordingly." Wolczak, supra, 66
N.J. Super. at 75; see also Sanna, supra, 209 N.J. Super. at 67;
Cassano, supra, 226 N.J. Super. at 115. A landowner, of course,
will not escape liability if the landowner retains control "over
the manner and means by which the work is to be performed, [or]
where the work constitutes a nuisance per se or where one knowingly engages an incompetent contractor." Cassano, supra, 226
N.J. Super. at 113 (citation omitted); see also Gibilterra v.
Rosemawr Homes, Inc.,
19 N.J. 166, 171 (1955); Wolczak, supra, 66
N.J. Super. at 73.
Armed with these principles, we are satisfied that the
arguments regarding the unsigned contract between Bunker Hill and
Glendale Builders do not affect the facts in the record which
establish that Glendale Builders had sole responsibility for work
site safety as the general contractor for the project. Joseph
Vento, the president of Glendale Builders, was on the site every
day overseeing and supervising the construction. Glendale
Builders hired and paid all the subcontractors on the project and
ordered and paid for all the project equipment.
Although Bunker Hill's status as landowner imposed upon it a
nondelegable duty to use reasonable care to protect invitees
against known or reasonably discoverable dangers, and although
independent contractors and their employees are generally the
beneficiaries of that duty, plaintiffs have not made a prima
facie showing that Bunker Hill breached its duty. Plaintiffs
were employed by I & B Builders to install the roof trusses.
These trusses eventually collapsed due to inadequate bracing.
The danger of trusses collapsing was a recognized risk incident
to the erection of such roof trusses. Plaintiffs' own expert
conceded this. Plaintiffs, as experienced carpenters hired to
perform the very work that gave rise to their injuries, knew or
should have known that the risk of collapse necessitated temporary bracing for the trusses.
Bunker Hill, as the landowner, plainly did not owe a duty to
plaintiffs, as employees of an independent contractor, to prevent
injury from a risk which was incident to the very task they were
hired to perform, and therefore is not liable to plaintiffs for
the injuries they sustained in this accident.
Bunker Hill was entitled to rely upon and assume that
Glendale Builders and its subcontractor, I & B Builders, had
sufficient skills to safely erect roof trusses and take the steps
necessary to protect their own employees from the risks incident
to the work they performed.
Furthermore, contrary to plaintiffs' assertion, there is no
basis in this record to conclude that Bunker Hill's active
interference with the construction of the roof trusses was
sufficient to trigger liability. The record shows that the
Bunker Hill partners had no experience with roof trusses and
hired Minaret Designs, as architect, and Glendale Builders, as
general contractor, to design and erect the structure. Glendale
Builders then subcontracted the actual erection of the roof
trusses to I & B Builders, who employed the three plaintiffs.
While partners of Bunker Hill were occasionally on the job site,
those partners did not and could not determine if the trusses
were being installed properly and did not give any instructions
with respect to the erection of the trusses. In fact, Vento
testified that no partners from Bunker Hill ever gave him directions regarding his supervision of the job.
The cases relied upon by plaintiffs in an attempt to create
a breach by Bunker Hill are distinguishable and do not compel a
contrary conclusion. For example, in Piro v. Public Service
Electric & Gas Co.,
103 N.J. Super. 456, 462 (App. Div.), aff'd,
53 N.J. 7 (1968); Izhaky v. Jamesway Corp.,
195 N.J. Super. 103,
107-08 (App. Div. 1984); and Sanna, supra, 209 N.J. Super. at 68,
the landowners were actively involved in the construction and/or
created the allegedly hazardous condition that gave rise to the
accident and resultant injuries. Similarly, in Black v. Public
Service Electric & Gas Co.,
56 N.J. 63, 69-70 (1970) and Zentz v.
Toop,
92 N.J. Super. 105, 108 (App. Div. 1966), aff'd sub nom.,
Zentz v. Toop v. Siegel,
50 N.J. 250 (1967), the plaintiffs were
injured by conditions on the landowner's property that preexisted
their work and were not incident to the work performed. By
contrast, Bunker Hill did not provide any materials for the
project that resulted in the hazardous condition, nor was the
cause of the collapse due to a preexisting condition on Bunker
Hill's property. On the contrary, the hazard of the trusses
collapsing was created by the very work that plaintiffs were
hired by I & B Builders to perform.
Plaintiffs also seek to impose liability on Bunker Hill by
asserting that it failed to follow certain OSHA regulations and
trade practices during the project's construction. Plaintiffs
correctly note that the general rule of Wolczak was distinguished
in Meder v. Resorts International Hotel, Inc.,
240 N.J. Super. 470, 475 (App. Div. 1989), certif. denied,
121 N.J. 608 (1990).
In Meder, we found that a "violation of the obligations imposed
by the federal regulations supports a tort claim under state
law." Id. at 477. We explained that OSHA regulations impose a
duty to maintain a safe work place upon "the employer" which is
defined as a "contractor or subcontractor." Id. at 476 (citing
29 C.F.R. §§ 1926.28(a) and 1926.50(j)). We also found that,
according to OSHA regulations, "a prime or general contractor
bears responsibility for all OSHA violations on the job . . . ."
Id. at 476 (citing 29 C.F.R. § 1926.16). The Meder decision was
most recently revisited in Kane, supra, 278 N.J. Super. at 141
and Izzo v. Linpro Co.,
278 N.J. Super. 550, 555-56 (App. Div.
1995). In Kane, we held that a "finding of an OSHA violation
does not ipso facto constitute a basis for assigning negligence
as a matter of law . . . ." 278 N.J. Super. at 144. In Izzo, we
held that "[t]he absence of any OSHA regulation imposing a
specific affirmative duty on the property owner is sufficient to
warrant the grant of summary judgment" to the landowner. 278
N.J. Super. at 556.
While OSHA regulations require a general contractor to
comply with OSHA requirements, these regulations do not apply to
owners such as Bunker Hill and do not impose any affirmative duty
of compliance upon such owner. Consequently, there is no basis
for imposing liability upon Bunker Hill for any alleged failure
of its general contractor Glendale Builders or the latter's
subcontractors, including I & B Builders, to comply with OSHA
regulations. To visit liability upon Bunker Hill under such
circumstances would be contrary to the public policy of this
State which favors the general contractor as the "single repository of the responsibility for the safety of all employees of a
job." Kane, supra, 278 N.J. Super. at 141.
In sum, the trial court properly granted summary judgment in
favor of Bunker Hill.
Plaintiffs also contend that the trial court erred in
granting summary judgement in favor of Manna Crane because there
was sufficient evidence that Manna Crane's negligence was a
substantial factor in causing the collapse of the trusses and
produced the subject injuries. Again, we disagree.
It is fundamental that in order to visit tort liability upon
a defendant, a "plaintiff must prove tortious conduct, injury and
proximate cause." Ayers v. Jackson Tp.,
106 N.J. 557, 585
(1987). "Proximate cause" has been defined as "any cause which in
the natural and continuous sequence, unbroken by an efficient
intervening cause, produces the result complained of and without
which the result would not have occurred." Fernandez v. Baruch,
96 N.J. Super. 125, 140 (App. Div. 1967), rev'd on other grounds,
52 N.J. 127 (1968). The burden of proof rests upon the plaintiff
to prove a causal relationship by a preponderance of the evidence. Vuocolo v. Diamond Shamrock Chem. Co.,
240 N.J. Super. 289, 292 (App. Div.), certif. denied,
122 N.J. 333 (1990). Thus,
a plaintiff must show that a defendant's conduct constituted a
cause-in-fact of his injuries. Kulas v. Pub. Serv. Elec. & Gas
Co.,
41 N.J. 311, 317 (1964); Battista v. Olson,
213 N.J. Super. 137, 148-49 (App. Div. 1986).
Even if damage would have occurred in the absence of a
defendant's negligence, liability may still be imposed upon a
showing that the negligent conduct was a substantial factor in
causing the alleged harm. See State, Dep't of Envt'l Protection
v. Jersey Cent. Power & Light Co.,
69 N.J. 102, 110 (1976).
Therefore, there may be two or more concurrent and directly
cooperative proximate causes of an injury. Scott v. Salem County
Memorial Hosp.,
116 N.J. Super. 29, 33 (App. Div. 1971). Such
causes need not be exclusively capable of producing the injury,
they need only be a substantial factor in bringing about the
harmful result. Id. at 34. Stated differently, "[l]iability
attaches not only to the dominating cause but also to any cause
which constitutes at any event a substantial factor in bringing
about the injury." Peer v. City of Newark,
71 N.J. Super. 12, 28
(App. Div. 1961).
Under New Jersey law, an expert's opinion must be based on a
proper factual foundation. Gribbin v. Fox,
130 N.J.L. 357, 359
(Sup. Ct. 1943), aff'd,
131 N.J.L. 187 (E. & A. 1944). In other
words, "[e]xpert testimony should not be received if it appears
the witness is not in possession of such facts as will enable him
[or her] to express a reasonably accurate conclusion as distinguished from a mere guess or conjecture." Vuocolo, supra, 240
N.J. Super. at 299 (citation omitted). "This prohibition against
speculative expert opinion has been labelled by modern courts as
the 'net opinion rule.'" Id. at 300. "Under this doctrine,
expert testimony is excluded if it is based merely on unfounded
speculation and unquantified possibilities." Ibid; see also
Nesmith v. Walsh Trucking Co.,
123 N.J. 547, 548-49 (1991);
Johnson v. Salem Corp.,
97 N.J. 78, 91 (1984); Pelose v. Green,
222 N.J. Super. 545, 549-51 (App. Div.), certif. denied,
111 N.J. 610 (1988).
In support of its argument that Manna Crane acted negligently and that its negligence was a substantial factor in the
collapse of the trusses, plaintiffs offered the expert testimony
of John E. Posusney, of Consulting Engineers, Inc. With respect
to the negligence of Manna Crane and the issue of causation, Mr.
Posusney, in part, concluded in his report of March 31, 1992
that:
Manna Crane was engaged under the direct
supervision of Glendale Builders for the
purpose of handling the trusses. However,
Glendale Builders, specifically Joseph Vento,
did not instruct and supervise the crane
operator on the proper method of handling a
truss in order to minimize these effects. It
was Glendale Builders and Manna Crane's
responsibility to do so and their failure
contributed to an increase in bending of the
trusses during moving, lifting and setting,
which contributed to difficulties in truss
alignment and adversely affected their structural integrity and contributed to the collapse. Moreover, handling information was
given to Glendale Builders as part of the
BWT-76 document.
In our view, Mr. Posusney's opinion fell far short of that
which was required to satisfy plaintiffs' burden in a case of
this kind. Although Manna Crane is alleged to have somehow
damaged the fifteen trusses in question by dragging them or by
storing them on uneven ground or by lifting them by a single
hook, there is no proof Manna Crane's actions were a substantial
factor in causing the collapse of the trusses and plaintiffs'
injuries. Plaintiffs' expert was unable to identify or establish
that the trusses involved in the accident were the ones allegedly
dragged, lifted or stored by Manna Crane. Thus, Mr. Posusney
failed to establish that Manna Crane's actions were a substantial
cause of the collapse of the trusses.
Beyond this, Mr. Posusney's report was simply a net opinion,
which did not provide a factual foundation to support plaintiffs'
claims. Even drawing all reasonable inferences in favor of
plaintiffs and against Manna Crane, plaintiffs still have not
made a prima facie showing of a causal relationship between the
collapse of the trusses and Manna Crane's alleged negligent
conduct to preclude summary judgment in favor of Manna Crane.
Mr. Posusney opined that the crane operator stored the trusses on
uneven ground, dragged trusses while moving them and lifted the
trusses with a single hook, which structurally weakened the
trusses and contributed to their collapse. However, Mr. Posusney
admitted that he did not know if any of the trusses that were
pulled along the ground were in fact damaged or even, if damaged,
were among the trusses involved in the collapse. He also
admitted that he did not know if any of the fifteen trusses
involved in the collapse were stored on uneven ground. Additionally, Mr. Posusney conceded that he never visited the accident
site and never physically examined the fifteen trusses involved
in the collapse. In fact, Mr. Posusney admitted that he did not
know if any of the trusses with ruptured members were installed
in the building.
The trial court properly concluded that Mr. Posusney's
opinion was without factual support, reasoning:
As to Manna-Crane, it is contended by
plaintiff through their expert, John
Posusney, that defendant Manna-Crane Service
somehow damaged the 15 trusses in question by
dragging these trusses and by lifting them
with a single hook rather than using two
points.
However, plaintiffs' expert has never visited the site, has not examined any of the roof trusses installed at the Plaza or those removed from the accident scene, has not
performed any quantitative engineering analysis to evaluate the stresses of the truss
members from the single lift point operation.
The opinions of plaintiffs' proposed
expert are without, I believe, factual support and completely fail to explain a casual
connection between the alleged conduct of
defendant Manna-Crane and the collapse of the
15 trusses at Bunker Hill Plaza.
Consequently, the trial court properly granted summary
judgment in favor of Manna Crane.
Finally, plaintiffs contend that Haddonfield Lumber is
liable because it sold defective lumber parts used by U.S.
Components in manufacturing or fabricating the trusses and inadequately determined the type and quantity of bracing materials
needed for the trusses.
In a products liability case, plaintiff has the burden of
proving that: (1) the product was defective; (2) the defect
caused an injury to a plaintiff who was a foreseeable user of the
product; and (3) the defect existed when the product left defendant's control. McLaughlin v. Acme Pallet Co.,
281 N.J. Super. 565, 568-69 (App. Div. 1995); see also O'Brien v. Muskin Corp.,
94 N.J. 169, 179 (1983); Michalko v. Cooke Color & Chem. Corp.,
91 N.J. 386, 394 (1982). The latter element of proof, known as
"causation-in-fact", is an essential element of a prima facie
case based in either strict liability or negligence. McLaughlin,
supra, 281 N.J. Super. at 569; Yun v. Ford Motor Co.,
276 N.J.
Super. 142, 151 (App. Div. 1994), rev'd on other grounds,
143 N.J. 162 (1996).
"`The purpose of the causation-in-fact requirement, besides
assigning blameworthiness to culpable parties, is to limit the
scope of potential liability and thereby encourage useful activity that would otherwise be deterred if there were excessive
exposure to liability.'" McLaughlin, supra, 281 N.J. Super. at
569 (quoting Shackil v. Lederle Lab.,
116 N.J. 155, 162-63
(1989)). Tortfeasors are generally responsible for their negligent acts that are a substantial factor in bringing about the
plaintiff's injuries. Effin v. Ava Truck Leasing, Inc.,
53 N.J. 463, 483 (1969); Rappaport v. Nichols,
31 N.J. 188, 203 (1959).
This rule is tempered by an important corollary to the proximate
cause rule that states "`the actor's negligent conduct is not a
substantial factor in bringing about harm to another if it would
have been sustained even if the actor had not been negligent.'"
Kulas, supra, 41 N.J. at 317 (citation omitted).
Here, plaintiffs' expert Mr. Posusney conceded that he could
not ascribe substantial factor status to any one lumber mill, nor
could he specify if the defective boards were actually in the
middle trusses that collapsed. Additionally, plaintiffs' timber
product specialist, James A. Taylor, testified that he did not
think the lumber itself triggered the collapse. In light of
plaintiffs' own expert testimony and reports, the trial court
properly concluded that even assuming that Haddonfield Lumber
supplied some defective boards, such was not a "substantial
factor in causing the trusses to collapse" or in bringing about
plaintiffs' injuries. The proofs tended to show that the trusses
would have collapsed and plaintiffs would have sustained their
injuries even if Haddonfield Lumber had not supplied defective
boards.
Plaintiffs also contend that Haddonfield Lumber breached a
duty of care owed to plaintiffs by preparing a faulty estimate of
the bracing material needed to erect and support the trusses. In
particular, plaintiffs point to the fact that although Haddonfield Lumber contracted with Glendale Builders to supply lumber
to the work site, it voluntarily undertook to perform a bracing
materials "takeoff" which Glendale Builders relied upon and which
later proved to be insufficient and inadequate with respect to
the type and quantity of bracing material needed to safely
perform the construction. The proofs show that as a matter of
sales practice, Haddonfield Lumber would formulate the amount of
bracing material needed whenever a truss order was placed by U.S.
Components. In this instance, Haddonfield Lumber's sales
manager, Mark Massey, utilized blue prints supplied by Glendale
Builders to prepare the estimate. In preparing the estimate, Mr.
Massey relied principally on the dimensions of the building and
the dimensions of the trusses supplied by Glendale Builders.
The law is well-settled that one who undertakes to render
services to another, even absent a contract, may be found liable
in tort for negligently performing or failing to perform the
service gratuitously assumed. See Dudley v. Victor Lynn Lines,
Inc.,
48 N.J. Super. 457, 468-69 (App. Div. 1958), rev'd on other
grounds,
32 N.J. 479 (1960); Wells v. Wilbur B. Driver Co.,
121 N.J. Super. 185, 203 (Law Div. 1972). Although a party may have
an obligation to see that the work it voluntarily undertakes for
another's benefit is done in conformance with accepted standards
of care, the duty to foresee and prevent a particular risk of
harm from materializing should be commensurate with the degree of
responsibility which the party has agreed to undertake. A lumber
supplier may in certain instances be called upon to evaluate the
safety of a bracing plan, but Haddonfield Lumber was not required
to do that here. On the contrary, Haddonfield Lumber was merely
asked to supply the lumber. While Haddonfield Lumber may have
voluntarily prepared an estimate of the type and quantity of
lumber needed to complete the project, it was never asked or
expected to prepare a comprehensive bracing plan as recommended
by the architect's plans. In fact, Mr. Vento testified that the
amount of bracing material required to complete the project was
"always a guess" because the general contractor was never sure
how much the carpenters would use. Mr. Vento also stated that he
would order materials as needed. Clearly, the record established
that Glendale Builders was ultimately responsible for the amount
of bracing needed and that it did not rely on Haddonfield
Lumber's estimate as to the amount of lumber needed. The
responsibility for developing a bracing plan lay with Glendale
Builders, not Haddonfield Lumber.
Moreover, Haddonfield Lumber was not asked to approve,
evaluate or upgrade Glendale Builders' or I & B Builders' bracing
plans, procedures or safety practices. Nor did Haddonfield
Lumber have any input into how the bracing was to be constructed
or undertaken or why all the available lumber on site was not
utilized. Rather, Haddonfield Lumber merely prepared an estimate
of the type and quantity of lumber needed to do the job. Under
these circumstances, it would upset settled principles of tort
law and considerations of fairness and policy to visit liability
upon Haddonfield Lumber for any failures in bracing because it
prepared a generalized estimate of the type and quantity of
lumber needed to complete the project.
Accordingly, the summary judgments in favor of Bunker Hill and Manna Crane and the summary judgment in favor of Haddonfield Lumber are affirmed substantially for the reasons expressed by Judge Holston in his oral opinions of January 7, 1994 and January 21, 1994, respectively.