Opinion
DOCKET NO. A-3207-13T3
08-26-2015
DENNIS R. CLUNE, Plaintiff-Appellant, v. UNDERWOOD CRANE TECHNOLOGIES, INC. and PATRICK UNDERWOOD, Individually, Defendants-Respondents. DENNIS R. CLUNE, Plaintiff, v. TISHMAN CONSTRUCTION CORPORATION, STONE CONCRETE, INC., AMQUIP CRANE RENTALS, L.L.C. and GROVE U.S., L.L.C., Defendants.
Steven E. Yost argued the cause for appellant (Haines & Yost, attorneys; Mr. Yost, on the brief). David J. Montag argued the cause for respondents (Milber, Makris, Plousadis & Seiden, LLP, attorneys; Mr. Montag, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Ostrer. On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket Nos. L-390-12 and L-2243-10. Steven E. Yost argued the cause for appellant (Haines & Yost, attorneys; Mr. Yost, on the brief). David J. Montag argued the cause for respondents (Milber, Makris, Plousadis & Seiden, LLP, attorneys; Mr. Montag, on the brief). PER CURIAM
On January 29, 2010, plaintiff Dennis R. Clune was working at the Revel Casino construction site in Atlantic City. Plaintiff was one of five union ironworkers supplied by Nooter Construction (Nooter) pursuant to its contract with defendant AmQuip Crane Rental, LLC (AmQuip), which in turn had contracted with Stone Concrete, Inc., a subcontractor for general contractor, defendant Tishman Construction Corporation (Tishman). AmQuip had also entered into an oral contract with defendants Underwood Crane Technologies, which principal was defendant Patrick Underwood (collectively, Underwood). Underwood was hired as the crane technician in charge of the disassembly of a crane supplied by AmQuip. On the day in question, plaintiff suffered personal injuries when an unsecured pendant bar rolled off a jib section of the crane and struck his forearm and leg.
The jib is the arm that extends from the crane tower and sometimes includes more than one section, as it did in this case. The pendant bars, also referred to as hog bars or hog lines, secure the jib to the tower and form the third side of a triangle.
Plaintiff initially filed suit against Tishman and AmQuip alleging negligence, as well as a products liability cause of action against the manufacturer of the crane, The Manitowoc Company. He subsequently filed a second suit against Underwood; both suits were consolidated.
Plaintiff's wife, Laurie Clune, was also a named plaintiff. Because her claim was wholly-derivative of her husband's, our use of the singular "plaintiff" throughout this opinion refers to Dennis R. Clune.
Underwood eventually moved for summary judgment. Plaintiff, AmQuip and Tishman opposed the motion. After considering oral argument, the Law Division judge concluded that on the day before the accident, AmQuip had released Underwood from any further contractual duties and permitted him to leave the state. The judge concluded therefore "[t]here wasn't a safety issue [] that [Underwood] should have been responsible for once he fulfilled that contract and left." The judge granted Underwood summary judgment dismissing plaintiff's complaint and all cross-claims filed by the other defendants. This appeal followed.
For reasons unexplained, the application was denominated a "motion in limine" seeking dismissal of the complaint.
Plaintiff settled his dispute with the other parties on terms undisclosed by the record. None of those parties have participated in this appeal.
Plaintiff essentially argues that the judge misapplied summary judgment standards by failing to consider material disputed facts in a light most favorable to plaintiff as the non-moving party, Rule 4:46-2, citing as a corollary to this argument, the judge's own "difficulties in reaching a position on the facts." He further contends that the judge erred as a matter of law by concluding that Underwood owed no duty of care to plaintiff and the other ironworkers at the site, or that Underwood had no contractual duty to remain on site until the crane disassembly was complete.
We have considered these arguments in light of the motion record and applicable legal standards. We affirm.
I.
A.
When reviewing a grant of summary judgment, we review only the record before the motion judge, Lombardi v. Masso, 207 N.J. 517, 542 (2011) (citation omitted), which we consider "in accordance with the same standard as the motion judge." Bhagat v. Bhagat, 217 N.J. 22, 38 (2014) (citing W.J.A. v. D.A., 210 N.J. 229, 237-38 (2012); Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010)). We "review the competent evidential materials submitted by the parties to identify whether there are genuine issues of material fact and, if not, whether the moving party is entitled to summary judgment as a matter of law." Ibid. (citing Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); R. 4:46-2(c)).
[A] determination whether there exists a "genuine issue" of material fact that precludes summary judgment requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party."The practical effect . . . is that neither the motion court nor an appellate court can ignore the elements of the cause of action or the evidential standard governing the cause of action." Bhagat, supra, 217 N.J. at 38.
[Brill, supra, 142 N.J. at 540.]
We then decide "whether the motion judge's application of the law was correct." Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 231 (App. Div.), certif. denied, 189 N.J. 104 (2006). "The 'trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.'" Town of Kearny v. Brandt, 214 N.J. 76, 92 (2013) (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).
B.
In support of its motion, Underwood supplied portions of the deposition testimony of Dennis Bates, vice-president of AmQuip's tower division. Bates stated that AmQuip retained Underwood as the crane technician "to be there during the disassembling of the crane in the air to make sure it was properly carried out." Bates testified, however, that Underwood's duties were "over" when the "upper crane had been dissembled." Asked specifically if Underwood was required to remain on site if "there w[ere] still parts of the crane connected to each other and it was being broken down . . . on the ground," Bates responded, "No [] that would be a load-out process." Bates acknowledged that Underwood completed "their obligations under [the] agreement with AmQuip" on the day before plaintiff's accident. Underwood's invoice was paid in February 2010, i.e., after plaintiff's accident.
Bates identified a document, AmQuip's Activities Hazard Analysis (AHA) for the project as it related to the crane. He stated that the AHA was only concerned with "activity in the air, to make sure that the crane is properly balanced." He acknowledged that the AHA did not cover situations when "the jib is down on the ground and being taken apart to be shipped out." At that point, Nooter was contractually required to "disassemble and load out the crane."
AmQuip's operations manager, James Fortenberry, testified that the AHA governed "[m]ainly the activity in the air." He further stated that the crane technician was required to be present while the crane was "in the air . . . until it hit[] the ground." According to Fortenberry, Underwood left the site either Thursday night, January 28, or Friday morning, January 29. Fortenberry testified that Underwood "had to leave at a certain time," but Fortenberry could not recall why. In any event, Underwood was only "responsible for staying until the jib and the counterjib got to the ground."
Additionally, Underwood's motion was supported by the deposition testimony of AmQuip's vice-president of risk management, Jeffrey K. Hammons, who also indicated that Underwood completed his contractual duty when the crane "hit the ground," and Scott Elsing, AmQuip's regional safety manager, who authored the AHA. Elsing said that the AHA was to be reviewed by the crew dissembling the crane during "safety huddles" that were documented by signed "safety huddle sheets." Elsing was "sure" Underwood was provided with a copy of the AHA. He assumed so because the AHA was supposed to be attached to the last page of the safety huddle sheets.
During Elsing's deposition, plaintiff's counsel acknowledged that when the safety huddle sheets were supplied by AmQuip in discovery, the AHA was not attached.
Elsing testified, however, that the AHA did not include specific language about safety precautions as to the pendent bar during disassembly because the company "never had any incidents with . . . pendant bars." Elsing testified that the AHA did not cover "the procedure that was taking place" when plaintiff was injured. According to Elsing, that procedure was not in the AHA's "analysis," which covered only the "dismantling [of] the jibs from in the air."
However, Elsing acknowledged that as part of the AHA, the "crane tech" was "supposed to ensure rigging inspection and practices" and that the "disassembly plan" was followed, and that Underwood could not have performed these tasks without being present. Fortenberry and Elsing testified that after plaintiff's accident, new language was added to the AHA for the model crane involved so as to include securing the pendant bar during the dismantling process.
Underwood also supplied the deposition testimony of Michael Miraglia, an ironworker at the site. Miraglia stated that plaintiff was not originally in the five-man crew Nooter hired for the job, but when one of the crew members called out sick on Thursday, January 28, plaintiff was added as a replacement. The jib was already off the crane tower and on the ground on Thursday.
Plaintiff joined the crew again as a replacement on January 29. Miraglia described the work that remained as "a simple procedure of hooking onto the one section [of the jib] and taking three pins out of it and the hog line pin to separate it, [then] just stick it on a truck." Earlier that morning, the ironworkers and crane operators had rigged an "assist crane" to the jib sections already on the ground in order to move them to the transport vehicle. Plaintiff arrived after two pins had been removed, but the jib sections were still connected by the pendant bar. Miraglia described how the pendant bar accidentally rolled off and struck plaintiff.
Miraglia acknowledged that there were safer procedures by which to disconnect the jib sections, but he never followed them "[b]ecause [the] next step [in the process] would have been to grab that hog bar . . . [w]ith the crane." Miraglia testified further that although the procedure the men were performing at the time could be "considered . . . a dismantling procedure," there was no need for Underwood to be there because "it's something we've done many [] times before, and we were . . . pretty well-rehearsed on how to do it."
During his deposition, Patrick Underwood testified that the work he was contracted to do lasted longer than expected, and AmQuip had incurred costs of approximately $1000 per day for every additional day he was on site. He left the site on the morning of January 28. Believing that he had completed the work for which he was responsible, Underwood called Fortenberry and told him, "I've got all the electrical undone, tower still standing, turntable is loaded out, tower tops loaded out. It's [twenty-three] degrees. I'm cold. I'm ready to go. And [Fortenberry] sa[id] okay, we're finished." Underwood acknowledged that he never unpinned the pendant bars, which were still secured to the jib when he left the job site.
Underwood was never supplied with the AHA, although he acknowledged that some of the duties contained therein were the crane technician's responsibility and a standard part of the disassembly procedure with which he was intimately familiar, having disassembled hundreds of cranes. Underwood agreed that the "dismantling procedure" was still ongoing when plaintiff was injured, but the "portion that [he] was hired for" was complete and the remainder "was the ironworkers' work to do." Underwood described in detail how the pendant lines could be unpinned, employing, as he sometimes did, one-inch nylon straps to secure them to the assist crane and eventually load them for shipping.
In his opposition, plaintiff supplied the AHA prepared by Elsing and approved by Bates and Fortenberry. It suffices to say that the AHA indicated the crane technician was assigned some function up to and including the final "work activity" listed, i.e., the demobilizing of the assist crane and departure for the "home portal." Plaintiff also supplied portions of the deposition testimony of John Elwood, the ironworker foreman at the site. Elwood testified that Underwood was present at the site every day during the disassembly of the crane, and he thought it was unusual that he was not there on the day of plaintiff's accident.
Plaintiff also included portions of the deposition testimony of Eric Fidler, the crane manufacturer's director of product safety. He indicated that the product manual for the crane provided specific directions for securing the pendant line to the jib for transport purposes and that these procedures needed to be followed in a particular sequence. Fidler indicated that only a "qualified individual" could direct the activity.
Additionally, plaintiff supplied a portion of the report of his expert, William C. Dickinson. Dickinson opined that Fortenberry released Underwood "too soon," and prior to the crane being disassembled, resulting in the wrong sequencing of actions to separate the jib sections and prepare them and the pendant bars for shipment from the site. Dickinson further opined that Underwood was "negligent for relating incorrect information to . . . Fortenberry" because "[d]isassembly was not complete."
Plaintiff also supplied a portion of the contract between AmQuip and Nooter. That required Nooter to "provide necessary Ironworker craft and supervision . . . to erect, adjust and dismantle" the cranes involved. The contract further provided, however, that AmQuip would provide a "[t]echnician with directions."
In their opposition, both Tishman and AmQuip supplied copies of their experts' reports. Tishman's expert, William Mazur, P.E., explained that although Underwood stated he had dismantled the crane, "in fact, sections of the jib boom were still connected together and the pendant bars were not stowed in the transport locked position." Mazur noted that "Fortenberry could have verified this incorrect statement[,]" but did not.
AmQuip's expert, Jim D. Wiethorn, P.E., concluded that Underwood had "completed his work prior to the morning of January 29, 2010." Citing standards promulgated by the American Society of Mechanical Engineers, Wiethorn stated that "[a]t no time has the . . . standard stated or otherwise inferred that a crane technician is responsible for means and methods or for directing operations" involving disassembly. In his conclusions, Wiethron stated that Underwood was "on site in an advisory role, not a supervisory role," that his work was finished by the morning of January 29, and "his ultimate release based on that information was a reasonable response by AmQuip." Furthermore, when plaintiff was injured, the "procedure that was taking place . . . involved lifting processes with an assist crane[,] . . . a crane and rigging procedure that is not within the expertise of a crane technician." Wiethorn opined that plaintiff's own actions in trying to free one of the pins were the cause of the accident.
Before the judge, Underwood argued the undisputed deposition testimony from AmQuip's employees demonstrated that they believed, as did Underwood, he had fulfilled his contractual obligations and was released from any further work at the site once the jib was on the ground. Plaintiff argued that the scope of the oral contract between AmQuip and Underwood was defined by the AHA, and Underwood acknowledged that, pursuant to the AHA, the crane was not fully disassembled and other tasks that required the "crane tech" were unfinished when Underwood left the site.
Despite approving Underwood's departure from the site before the jib sections were separated, AmQuip argued that a question of disputed fact existed whether the process occurring when plaintiff was injured was "dismantl[ing]" of the crane or "load[ing] out" the crane for transport. AmQuip argued that it relied upon Underwood's expertise when he told Fortenberry that the work was complete.
However, the judge interrupted the argument, noting it was the first time AmQuip asserted that Underwood made a "professional" decision that AmQuip relied upon to discharge Underwood from the site. The judge characterized AmQuip's argument as "unfair."
The judge concluded it was "the plain, uncontrovertible [sic] fact" that Underwood "was not contracted to render services after the crane was on the ground." He discounted any expert testimony to the contrary regarding a crane technician's function because that was not part of Underwood's agreement. The judge also determined that plaintiff's reliance on Carvalho v. Toll Brothers & Developers, 143 N.J. 565 (1996), was misplaced, because Underwood was no longer supplying any services to AmQuip once his contractual duty was completed. He entered the order under review.
Recently, the Court noted that "[a] party's burden of proof on an element of a claim may not be satisfied by an expert opinion that is unsupported by the factual record or by an expert's speculation that contradicts the record." Townsend v. Pierre, 221 N.J. 36, 55 (2015). In assessing Underwood's responsibility, Tishman's expert Mazur stated that Underwood "was contracted to follow the [product manual for the crane] and instruct the dismantling crew[,]" and that he "incorrectly informed AmQuip that he had completed these tasks." The record does not support either statement.
II.
Plaintiff's initial argument is that the judge ignored the disputed facts in the record involving the scope of Underwood's contractual duty. He cites to Underwood's testimony admitting that the crane technician's duties set forth in the AHA were not complete when he left the site, in contrast to Underwood's "represent[ation] to [] Fortenberry that the crane disassembly was complete at the time [Underwood] asked to be released."
However, Elsing, who authored the AHA, testified unequivocally that it only covered activities up until the jib was on the ground. Even if the AHA was ambiguous in this regard, the motion judge properly observed that regardless of the tasks assigned under the AHA, every AmQuip employee acknowledged Underwood's contractual obligations were complete when the jib sections were on the ground. Additionally, there was no evidence to support an inference that Underwood misrepresented the state of affairs when he spoke to Fortenberry. In fact, Elsing testified that he was on the site on January 29, knew that Underwood was no longer there, and that the jib still had not been disassembled. We reject plaintiff's related argument that Underwood's admission he sometimes used one-inch straps to secure the pendant line during the process and before it was pinned into place on the jib section for transport raises a material factual dispute about his contractual obligations. There is nothing to support the conclusion that AmQuip expected Underwood to do more than what he did with respect to this particular crane.
In sum, there were no disputed facts regarding the nature and scope of Underwood's contract with AmQuip. Neither party to the contract believed the crane technician owed any further performance under the agreement once the jib sections were on the ground.
The question remains whether even in the absence of a contractual duty that required his physical presence at the site, Underwood nevertheless owed a duty to plaintiff and the other ironworkers disassembling the jib that, assessed by summary judgment standards, he breached. In this regard, we acknowledge plaintiff's essential point that whether a duty exists is a question of law to be resolved by the court, and that the contractual relationship between Underwood and AmQuip does not necessarily resolve the issue.
For example, in Carvalho, the defendant engineering company (the engineer) entered into a contract with the municipality that required, among other things, that the engineer maintain a full-time site representative to ensure the general contractor's compliance with its agreement with the municipality that included various safety requirements. Carvalho, supra, 143 N.J. at 571. The engineer had the ability to stop work on the project and the contractor was required to abide by the engineer's decision. Ibid. While the engineer's representative was on site performing his duties, the plaintiff's decedent, employed by one of the general contractor's subcontractors, was fatally injured in a trench collapse. Id. at 571-72.
The Court recognized that whether the engineer owed a duty to employees of the subcontractor was a matter of law to be decided by the court based upon "fairness and policy that implicates many factors." Id. at 572.
[T]he relationship of the parties was contractual. That relationship contemplated the active participation and involvement by the engineer in the construction work at theThe Court held that the engineer had a duty to exercise reasonable care to avoid harm to the employees at the site. Id. at 578.
site. The engineer's site representative was required to be at the construction site every day to monitor the progress of the work. The engineer's supervisory responsibility necessarily entailed the observation of existing conditions and the actual performance of the work undertaken by the workers at the site.
[Id. at 574.]
The Carvalho Court did not cite to the Restatement (Second) of Torts § 324A, which explained circumstances whereby a duty may be owed to third parties based upon a contractual undertaking with another. See Fackelman v. Lac d'Amiante du Quebec, 398 N.J. Super. 474, 481 (App. Div. 2008) (citing this section of the Restatement (Second) as governing the liability for the negligent performance of an undertaking). Section 43 of the more recent Restatement (Third) of Torts provides:
An actor who undertakes to render services to another and who knows or should know that the services will reduce the risk of physical harm to which a third person is exposed has a duty of reasonable care to the third person in conducting the undertaking if:As the commentary to the section makes clear,
(a) the failure to exercise reasonable care increases the risk of harm beyond that which existed without the undertaking,
(b) the actor has undertaken to perform a duty owed by the other to the third person, or
(c) the person to whom the services are rendered, the third party, or another relies on the actor's exercising reasonable care in the undertaking.
[Restatement (Third) of Torts: Liability for Physical and Emotional Harm, § 43 (2012) (emphasis added).]
The duty imposed by this Section is independent of any contractual obligations. The duty of reasonable care imposed by this Section . . . exists regardless of whether there is a contract, whether a claim for breach of contract is available, or whether the plaintiff is a third-party beneficiary of the contract. The terms of a contract may be relevant to the existence and scope of an undertaking, but they do not determine whether a duty exists.Section 324A of the Restatement (Second) had no similar commentary. No reported New Jersey case has cited to section 43 of the Restatement (Third).
[Id. comment h (emphasis added).]
This section of the Restatement (Third) replaces section 324A of the Restatement (Second) of Torts which had been adopted prior to the decision in Carvalho. See Restatement (Third) of Torts § 43 comment a. --------
However, the commentators to the Restatement (Third) have cited to cases from other jurisdictions that have utilized the terms of a party's contractual agreement to define the terms of the undertaking as it relates to third parties. See, e.g., Glass v. Northwest Airlines, Inc., 798 F. Supp. 2d 902, 912-13 (W.D. Tenn. 2011) (considering the terms of a contract the vendor had with the airline to determine the scope of the vendor's undertaking as it related to the claims of a passenger); Doe v. Grosvenor Props., 829 P.2d 512, 518-19 (Haw. 1992) (considering the terms of elevator maintenance contract to determine the scope of the company's undertaking).
We conclude that neither Carvalho nor the Restatement (Third) supports the imposition of a duty upon Underwood under the particular facts of this case. Underwood's "undertaking" was to disassemble the crane while it was in the air and until the jib assembly was on the ground. AmQuip relieved him of any further duties after January 28 precisely because the jib sections were on the ground. As discussed above, plaintiff's argument to the contrary is simply not supported by the record.
Underwood clearly owed a duty to plaintiff and his fellow ironworkers while disassembling the crane prior to it being on the ground, and, had he negligently performed his job, then under Carvalho and the Restatement (Third), he would be liable to them. However, having been relieved of any further contractual duties on January 28, Underwood had no further "undertakings" to perform on January 29, when plaintiff was injured.
Therefore, unlike the engineer in Carvalho, whose undertaking included ongoing, on-site inspection and monitoring of the contractor's work, the scope of Underwood's undertaking was limited and did not include supervising, controlling or even advising plaintiff and the other ironworkers regarding the disassembly of the jib once it was on the ground and after he was permitted to leave.
In short, we find no reason to reverse the grant of summary judgment to Underwood.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION