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O'Keefe v. Sprout-Bauer

filed: July 20, 1992; As Corrected July 28, 1992.

JAMES O'KEEFE; AND LORRAINE O'KEEFE
v.
SPROUT-BAUER, INC.; BAY STATE MILLING COMPANY, A SUBSIDIARY OF BAY STATE MILLING CO.; AND JOHN DOE; GOLFETTO MANUFACTURING COMPANY SPROUT-BAUER, INC., THIRD PARTY PLAINTIFF V. GIAMMETTA MECHANICAL CONTRACTORS, INC., THIRD PARTY DEFENDANT, JAMES O'KEEFE, APPELLANT; JAMES O'KEEFE; AND LORRAINE O'KEEFE APPELLANTS V. SPROUT-BAUER, INC.; BAY STATE MILLING COMPANY, A SUBSIDIARY OF BAY STATE MILLING CO.; AND JOHN DOE; GOLFETTO MANUFACTURING COMPANY SPROUT-BAUER, INC., THIRD PARTY PLAINTIFF V. GIAMETTA MECHANICAL CONTRACTORS, INC., THIRD PARTY DEFENDANT



On Appeal from the United States District Court for the District of New Jersey. (D.C. Civil No. 88-1571)

Before: Greenberg and Nygaard, Circuit Judges, and Pollak, District Judge*fn*

Author: Greenberg

Opinion OF THE COURT

GREENBERG, Circuit Judge.

This appeal from an order entered on October 3, 1991, denying reconsideration of an order for summary judgment entered on June 26, 1991, concerns the duties owed by a general contractor to its subcontractors under New Jersey law and raises questions regarding the "proximate cause" prong of a strict products liability claim based on a duty to warn. Specifically, we must determine whether the district court correctly found that Wolczak v. National Electric Products Corp., 66 N.J. Super. 64, 168 A.2d 412 (App. Div. 1961), immunized appellee Sprout-Bauer, Inc., a general contractor, from liability for the injuries suffered by plaintiff James O'Keefe, an employee of a Sprout-Bauer subcontractor. We must also determine whether the district court correctly found that appellee Golfetto Manufacturing Co. did not proximately cause O'Keefe's injuries because even if it failed to warn O'Keefe of the dangerous propensity of its product, this fact was irrelevant in light of O'Keefe's extensive experience in the type of work which resulted in his injury and the manner in which this work is typically performed.*fn1

We believe that the district court erroneously transplanted the immunity from vicarious liability bestowed upon a general contractor in Wolczak into the "primary liability" setting, and thus improperly absolved Sprout-Bauer of responsibility for its affirmative acts of negligence. In addition, we find that the court impermissibly resolved disputed issues of material fact regarding whether Golfetto's failure to warn O'Keefe proximately caused his injuries. Accordingly, we will reverse the district court's order and remand the case for further proceedings.

I.

FACTS AND PROCEDURAL HISTORY

On September 23, 1985, Sprout-Bauer*fn2 entered into a contract with Bay State Milling Company to serve as the general contractor for the construction of a flour milling plant in Clifton, New Jersey. In that contract, Sprout-Bauer agreed to "design, engineer, and construct" the plant on a "turn key" basis.*fn3 The contract expressly contemplated that Sprout-Bauer would hire subcontractors to perform different aspects of the construction. To this end, Sprout-Bauer agreed that it would "supervise and direct the Work, using [its] best skill and attention and shall be solely responsible for all construction means, methods, techniques, sequences and procedures and for coordinating all portions of the Work under the Contract." Sprout-Bauer App. at 45. Sprout-Bauer also agreed to "at all times enforce strict discipline and good order among [its] employees and shall not employ on the Work any unfit person or anyone not skilled in the task assigned to him." Sprout-Bauer App. at 46. Finally, in a section entitled "SAFETY," Sprout-Bauer agreed that it:

shall be responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the Work. [Sprout-Bauer] shall take all necessary precautions for the safety of, and shall provide the necessary protection to prevent damage, injury or loss to:

A. all employees on the Work and other persons and organizations who may be affected thereby;

B. all the Work and materials and equipment to be incorporated therein, whether in storage on or off the site;

[Sprout-Bauer] shall comply with all applicable Laws and Regulations of any public body having jurisdiction for the safety of persons or property or to protect them from damages, injury or loss, and shall erect and maintain all necessary safeguards for such safety and protection. . . . All damage, injury or loss to any property referred to above, directly or indirectly, in whole or in part, by Sprout-Bauer, any Subcontractor, Supplier or any other person or organization directly or indirectly employed by any of them to perform or furnish any of the Work or anyone for whose acts any of them may be liable shall be remedied by Sprout-Bauer. . . .

[Sprout-Bauer] shall designate a responsible representative at the site whose duty shall be the prevention of accidents. This person shall be [Sprout-Bauer's] superintendent unless otherwise designated in writing by [Sprout-Bauer] to [Bay State].

Sprout-Bauer App. at 65-66.

Golfetto, an Italian corporation, entered into a subcontract with Sprout-Bauer to manufacture and supply all of the flour milling equipment, piping, ducting, instrumentation, and design services related thereto. Sprout-Bauer Br. at 7. Golfetto manufactured the equipment and component parts in Italy, and then packaged the equipment in crates which were sent to the United States and stored in Brooklyn, New York. Sprout-Bauer App. at 275; 347.

Giammetta Mechanical Contractors, Inc., O'Keefe's employer, entered into a subcontract with Sprout-Bauer to serve as the mechanical subcontractor on the flour mill project. Sprout-Bauer Br. at 9. As the mechanical subcontractor, Giammetta agreed to rig and install the flour milling equipment and associated piping and ducting. The Giammetta subcontract provides, in pertinent part:

[Giammetta] shall provide all materials, supervision, union labor, services, construction equipment, tools, consumables, supplies, testing and test devices, warehousing on and off site, temporary facilities, off load, sort and stage equipment either at their facility or at site, dispose of all dunnage, [and] clean-up work areas as necessary . . . . The work shall encompass:

A) Equipment Installation - Completely install all equipment items as identified in the equipment listings A to M . . . .

Giammetta shall be responsible for the logistics of picking up the Golfetto equipment stored in Brooklyn and hauling, sorting-out, placing and final setting of the equipment. All other equipment shall be delivered to the jobsite by others and turned over to Giammetta for staging, setting, etc.

Sprout-Bauer App. at 135-36.

As part of its manufacturing responsibilities, Golfetto built a "plansifter" which is a device used to sift flour. The plansifter is composed of three major components, including two flour boxes and a center section component. Sprout-Bauer App. at 178-236. The center section component is a steel frame which contains an eccentric weight ("the counterweight") that rotates around a vertical axis. Sprout-Bauer App. at 174-236; 312; 343. The center section component is approximately seven feet high by eight feet wide and is two and one-half feet deep. This component weighs approximately 3,000 pounds, the counterweight being the heaviest part. Sprout-Bauer App. at 174-236; 312. Golfetto shipped the plansifter to Brooklyn, New York, in numerous crates. To prevent rotation of the counterweight during the shipment of the center section component, Golfetto wedged pieces of wood between the counterweight and the steel frame. As stated by Paolo Panzavolta, Golfetto's Sales Engineer, Golfetto used the wood pieces to "stop mobilization of the counterweight, to stop any rotation of the counterweight." Sprout-Bauer App. at 348. Indeed, Sprout-Bauer concedes in its brief that the wood pieces "ensure the stability of the center section component during ocean transport and, ultimately, during rigging." Sprout-Bauer Br. at 13 (emphasis supplied). As is apparent, Golfetto did not intend these wooden pieces to be removed during the rigging process.

After the equipment arrived in Brooklyn, Giammetta performed the rigging work, which included hauling the equipment and its component parts to the Bay State site in Clifton, New Jersey, and unloading, sorting-out and staging the equipment and parts in a warehouse. Sprout-Bauer App. at 298. The Giammetta riggers removed the center section component from the crate and, in doing so, also removed the wood pieces necessary to stabilize the counterweight. Sprout-Bauer App. at 259. The riggers then loaded the components of the plansifter on a flatbed truck and drove them to the side of the mill building so that they could lift the parts by crane and forklift. Sprout-Bauer App. at 298. On July 21, 1987, while the rigging crew was in the process of hoisting the equipment so that they could install it,*fn4 the counterweight became unbalanced and the riggers dropped the center section component, which severely injured O'Keefe's right leg and killed Joseph Quatrochi, another member of the rigging crew. Sprout-Bauer App. at 286.

On February 19, 1988, O'Keefe filed a complaint against Sprout-Bauer in the Superior Court of New Jersey, alleging, inter alia, that Sprout-Bauer had failed to exercise reasonable care in the control and maintenance of the project and had unreasonably failed to engage supervisors to assist Giammetta in the installation of the plansifting machinery.*fn5

On April 5, 1988, Sprout-Bauer removed the suit to the United States District Court for the District of New Jersey based on diversity of citizenship. Subsequently, O'Keefe amended his complaint by adding Bay State as a defendant and charging that it had failed to maintain the mill in a reasonably safe condition.

Sprout-Bauer App. at 23.

On May 18, 1989, O'Keefe again amended his complaint, adding Golfetto as a defendant and alleging that it had failed to provide proper instructions concerning the installation of the plansifter, and had defectively designed the packing crates containing the center section component. Sprout-Bauer App. at 27-28.*fn6 On May 31, 1991, the court dismissed O'Keefe's claims against Bay State and that dismissal has not been appealed.

On June 26, 1991, the court granted summary judgment in favor of Sprout-Bauer and Golfetto. The court held that Sprout-Bauer was not liable under a theory of primary or vicarious liability, as O'Keefe's injury had resulted from an inherent risk of the job which Sprout-Bauer had no duty to prevent. Moreover, it held that Sprout-Bauer did not have a duty to warn Giammetta of the dangerous propensity of the center section component as that risk was obvious. Further, it found that Giammetta had received the instructions and warnings relating to the center section component and that, even if it had not, this would be of no consequence as Giammetta would not have followed the written instructions. The court also underscored that Sprout-Bauer had relinquished all control over the project to Giammetta and its "obligation ended with providing a reasonably safe place to work." Sprout-Bauer App. at 442. Finally, the court held that Sprout-Bauer had not hired Giammetta with the knowledge that it was incompetent and could not safely execute the job.*fn7

With regard to Golfetto, the court stated that O'Keefe had failed to allege that it had defectively designed the crates containing the plansifter or had improperly packaged that equipment. In addition, the court found that, even if Golfetto had not sent adequate instructions to Giammetta regarding the plansifter, it was not liable for O'Keefe's injuries as the riggers were subjectively aware of the dangerous propensity of the center section component.

On July 9, 1991, O'Keefe moved for reconsideration of the court's order, but the court denied that request in an order entered October 3, 1991. O'Keefe has appealed from the order of October 3, 1991.*fn8 ...


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