APPEAL from the Appellate Court for the First District; heard
in the court on appeal from the Superior Court of Cook County;
the Hon. HENRY W. DIERINGER, Judge, presiding.
MR. CHIEF JUSTICE KLINGBIEL DELIVERED THE OPINION OF THE COURT:
The 18 plaintiffs in this case brought suit in the superior court of Cook County to recover for personal injuries and wrongful deaths suffered on March 19, 1957, when a temporary construction hoist, being operated in conjunction with the erection of a multi-story courthouse in the city of Jacksonville, Florida, plunged a distance of six floors with 19 workmen aboard. Seven were killed and the remainder were severely injured. Two of the plaintiffs, (we use the term to include plaintiffs' decedents,) were employees of George D. Auchter Company, the general contractor which owned and operated the hoist, while the balance were employees of Auchter's subcontractors on the project. The actions, later consolidated, were brought against Union Wire Rope Company, manufacturer of a cable that broke, Archer Iron Works, designer and manufacturer of the hoist and a safety device thereon which failed to halt the fall, and American Mutual Liability Insurance Company, the workmen's compensation and public liability carrier for Auchter, which was charged with the negligent performance of gratuitous safety inspections and safety engineering service.
Following an extended trial, judgments were entered on jury verdicts finding the defendants Union Wire and Archer Iron not guilty, and finding defendant American Mutual guilty and liable for damages assessed in a total amount of $1,569,400. On appeal, both by plaintiffs and American Mutual, the Appellate Court for the First District affirmed the judgments in favor of Union Wire and Archer Iron, but reversed outright the judgments against American Mutual. (Nelson v. Union Wire Rope Corp., 39 Ill. App.2d 73.) We have allowed the plaintiffs' petition for leave to appeal to further review the matter. In addition, we have granted leave to several insurance groups to file a brief as amici curiae.
As a matter of initial concern it is unnecessary in our opinion to completely detail the respective pleadings, proof, arguments and authorities advanced in relation to the issues on review between plaintiffs and defendants Archer Iron and Union Wire. Although we do not necessarily adopt all that is said by the Appellate Court, particularly with respect to its concepts of various rules of evidence, and we do not approve of some aspects of Archer's presentation in this court, we are in basic accord with the court's judgments as to these two defendants and see no beneficial purpose in repetition or further analysis of those phases of the litigation. Gould v. Gould, 408 Ill. 526; Kamienski v. Bluebird Air Service, Inc. 389 Ill. 462.
The substance of plaintiffs' complaint against American Mutual, (hereafter referred to as defendant) and the theory they have consistently adhered to, is that the insurance company had gratuitously undertaken to make safety inspections of the practices and equipment of Auchter, its insured, and had carelessly and negligently performed the said inspections, as the proximate result of which plaintiffs were injured and killed. Other specifications charged that defendant had carelessly and negligently failed to detect and report: that the hoist's safety mechanism was inadequate and defective; that the tower was improperly designed and manufactured in that it did not have sufficient strength to permit the safety device to function; that the cable was in a worn condition; that the hoist was being used for the transportation of personnel in violation of a city ordinance, and that a sheave on the hoist was of improper size in violation of a city ordinance. A concluding specification charged that defendant had negligently failed to warn Auchter against the unsafe practice of permitting personnel to ride on the hoist. In answer, defendant denied that it had undertaken, gratuitously or otherwise, to make such safety inspections, or that such safety inspections of practices, machinery or hoists had in fact occurred, and denied that it had been guilty of negligence of any kind, or in the respects specifically charged. Further, defendant denied that it had made periodic or regular surveys or inspections of the premises or equipment, and while admitting that an employee had made intermittent and infrequent surveys and inspections of the premises, it denied that they had pertained to or included the hoist, and alleged that they were for the sole purpose of keeping itself advised of the risk it had insured. As a first affirmative defense defendant alleged that, because it was the general contractor's compensation carrier, it was not subject to suit as a third party tort feasor under the Florida Workmen's Compensation Act; as a second affirmative defense it was alleged that if it had in fact performed safety inspections as plaintiffs charged, it became a subcontractor and was thus immune from tort liability to plaintiffs by virtue of the Florida act.
Under these pleadings, and the proof and arguments advanced to sustain them, we are confronted with three principal issues, to be determined under the law of Florida as the situs of the occurrence and the State whose laws regulate the relationships of the parties. (Mithen v. Jeffery, 259 Ill. 372.) Those issues may be stated as follows: first, was a valid common-law action proved against defendant in this case; second, were plaintiffs' causes of action against defendant taken from them by the Florida Workmen's Compensation Act; and, third, did defendant, by making safety inspections, become a subcontractor on the courthouse project so as to gain immunity from tort liability under the act?
Before considering the particular facts of this case, we think it well to examine the legal foundation upon which plaintiffs' actions are based. Originating with the decision of Coggs v. Bernard, 2 Lord Raymond 909, it has come to be a recognized principle that liability can arise from the negligent performance of a voluntary undertaking. In our times a clear and oft-cited statement of the principle is the language of Justice Cardozo in Glanzer v. Shepard, 233 N.Y. 236, 135 N.E. 275, 276, when he said: "It is ancient learning that one who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all." (See also: 38 Am. Jur., Neg. sec. 17; 5 Harvard Law Review 222.) Florida, like Illinois, has recognized the doctrine. (Banfield v. Addington, 104 Fla. 661, 140 So. 893, 896; United States v. Lawter, (5th cir.) 219 F.2d 559; United States v. DeVane, (5th cir.) 306 F.2d 182; Triolo v. Frisella, 3 Ill. App.2d 200.) In addition, Florida has frequently stated that it will adhere to the views of the Restatement of Torts, (Propper v. Kesner, (Fla. 1958,) 104 So.2d 1; Tampa Drug Co. v. Wait, (Fla. 1958,) 103 So.2d 603; Matthews v. Lawnlite Co. (Fla. 1958,) 88 So.2d 299,) where the doctrine is stated in this manner: "(1) One who gratuitously renders services to another, * * * is subject to liability for bodily harm caused to the other by his failure, while so doing, to exercise such competence and skill as he possesses." § 323 (1).
Our Appellate Court, in considering the doctrine as stated in the Restatement, concluded that it was "properly applicable only in situations involving active negligence, or misfeasance," (39 Ill. App.2d at 129,) an earlier portion of its opinion indicating that it equated the terms "active negligence" and "misfeasance" as meaning the "creation of a risk, or danger," and its belief that defendant here could not be liable for a gratuitous undertaking unless it was guilty of negligence which "caused the hoist to fall." (39 Ill. App.2d at 122.) In this we believe the court was plainly wrong. The language that a volunteer is liable for failure to use such competence and skill as he possesses does not admit to a conclusion that the only duty of the volunteer is to refrain from positive acts of negligence. Moreover, in those cases, subsequently discussed, where insurers have incurred liability as the result of gratuitous inspections of machines and equipment, liability rested upon a breach of the duty to make the inspections with due care, not upon acts which "created" dangers or defects, or which caused the occurrence by which injury was received. (See: Van Winkle v. American Steam-Boiler Ins. Co. 52 N.J.L. 240, 19 Alt. 472; Hartford Steam Boiler Inspection & Insurance Co. (7th cir.), 201 Fed. 617.) As is shown by defendant's own citation of authority, viz., Viducich v. Greater New York Mutual Insurance Co. 80 N.J. Super. 15, 192 A.2d 596, plaintiffs, to support their actions, had only to show (1) that defendant undertook to make safety inspections and to render safety engineering services under circumstances which created a duty on defendant, owed to plaintiffs, to perform its undertakings with due care, and (2) that the gratuitous undertakings were negligently performed, such negligence resulting proximately in plaintiffs' deaths and injuries. See also: McClure v. Hoopeston Gas and Electric Co. 303 Ill. 89, 96; Devaney v. Otis Elevator Co. 251 Ill. 28, 33.
There is respectable authority, old and new, that gratuitous inspections by insurers may be made under such circumstances as to create an enforceable duty to persons known and unknown. The latest of these is Smith v. American Employers' Insurance Co. 102 N.H. 530, 163 A.2d 564, a decision which our Appellate Court erroneously dismissed as being based solely on a contract agreement. In that case the complaint of the plaintiff alleged that the employer's workmen's compensation carrier, for some time prior to the accident, had gratuitously conducted monthly inspections at the insured's plant, which extended to an air compressor that exploded and injured plaintiff, an employee of the insured. The New Hampshire court, in sustaining the validity of plaintiff's tort action against the carrier, held such gratuitous conduct created a duty to use due care which clearly extended to the injured employee. In Hartford Steam Boiler Inspection & Insurance Co. v. Pabst Brewing Co. (7th cir.) 201 Fed. 617, where boilers gratuitously inspected by the insurer exploded, the policy had been in force for 15 months and it was held that the insurer's continuous conduct of inspection and report (the last being in the month prior to the explosion,) coupled with the representations of its advertising as to the broad scope and value of its inspections, (see: 201 F. at 629), were of "probative force to show both the undertaking of duty and the relation of the parties upon which the action for negligence in the performance thereof may be predicated." Following this the court said: "Inspection of the boilers necessarily requires care and skill in its performance for safety in their use, and, when thus undertaken by the Insurance Company to serve as a benefit to the assured, the duty arises, with or without contract obligation to inspect, to exercise reasonable care and skill in each inspection so made, * * *." (201 Fed. at 629.)
Van Winkle v. American Steam-Boiler Ins. Co. 52 N.J.L. 240, 19 A. 472, presented a situation where the insurance company issued a policy covering a boiler owned by Ivanhoe Paper Co. and reserved to itself the right to inspect and examine such boiler. It subsequently blew up and damaged the building of Van Winkle, adjacent to that of Ivanhoe, who brought suit against the insurer. The New Jersey court, after first stating it was obvious plaintiff could not predicate his suit on the contract between Ivanhoe and the insurance company, concluded that the issue before it was the legal effect of the acts done by the insurer under the contract, insofar as they affected the rights of plaintiff, a stranger to the contract. The court commented that the insurer was not bound to inspect the boiler, and that if it had not done so no liability to plaintiff could arise. However, the facts of the case disclosed that the insurer had gratuitously made repeated inspections and had also undertaken to furnish its insured with a certificate stating the load that could be put on the safety valve, which conduct caused the court to conclude the insurer had become obligated to make a careful inspection. It was stated (at page 475 of 19 Atl.): "And it would seem that there is a broader ground than the one above defined, on which the present case can be based. It is this: that in all cases in which any person undertakes the performance of an act, which if not done with care and skill, will be highly dangerous to the persons or lives of one or more persons, known or unknown, the law, ipso facto, imposes, as a public duty, the obligation to exercise such care and skill." (Emphasis ours.) While recently analyzing the Van Winkle case in Viducich v. Greater New York Mutual Insurance Co. 80 N.J. Super. 15, 192 A.2d 596, a New Jersey appeals court again manifested the view that the repeated inspections and the furnishing of certificates for the guidance of Ivanhoe's engineer were circumstances which created a duty upon the insurer to inspect with due care.
In Sheridan v. Aetna Casualty & Surety Co. 3 Wn.2d 423, 100 P.2d 1024, the insurer issued an insurance policy on an elevator, the policy reserving the right to inspection. Thereafter, the insurer made periodic inspections, making reports to the owner and also to the city as an ordinance required. An employee of a tenant in the building was injured by a defective elevator door and brought suit against the insurer, who defended that plaintiff had no rights under the policy and that it was not liable by reason of the inspections made. After reviewing numerous cases holding that the voluntary assumption of a duty renders one liable for its negligent performance, the court concluded (100 P.2d at 1031): "Our conclusion is that respondent's action is maintainable, not by virtue of any obligation imposed by the policy of insurance, but because of the legal responsibility attaching to its voluntary assumption, as the owner's agent, of the duty of proper inspection and reporting to the city." To the same effect is Bollin v. Elevator Construction & Repair Co. 361 Pa. 7, 63 A.2d 19.
On the other hand, relied upon by defendant, are Viducich v. Greater New York Mutual Insurance Co. 80 N.J. Super. 15, 192 A.2d 596; Zamecki v. Hartford Accident & Indemnity Co. 202 Md. 54, 95 A.2d 302; and Ulwelling v. Crown Coach Corp. 206 Cal.App.2d 96, 23 Cal. Reptr. 631, where the circumstances of the gratuitous inspections by insurers were held to create no enforceable duty to the plaintiffs involved. However, in the Viducich case, but one inspection was made of a new business venture, and it appeared that the only purpose of the inspection was to determine the "insurer's remuneration." Under such circumstances the New Jersey court held no duty to inspect with due care had arisen as to the plaintiff, an employee of the insured who was later injured due to the absence of a guard on a machine. Comparably, in Ulwelling, an inspection of an insured's buses in October, 1956, was for the purpose of rating a new account, while a subsequent inspection in January, 1957, made after the policy had issued and 9 months before the occurrence which prompted the suit, was done on a sampling basis, did not include the bus involved in the mishap, and was not performed by a trained or expert inspector. These circumstances, as well as proof showing that 75% of 80% of the insurer's gratuitous safety engineering services were directed to road patrol service, led the California court to conclude the inspections were not of such nature as would impose upon the insurer any duty owing plaintiffs, the latter being either passengers or representatives of passengers in a bus that crashed when a drive shaft separated and damaged the air brake system. In the Zamecki case, which was decided on the pleadings, it was alleged by a patron injured in the collapse of a temporary grandstand that the promoter's insurer had gratuitously and negligently inspected the stands, and had failed to advise plaintiff of their faulty construction. The Maryland court, in what would appear to be a distinct minority view, was of the opinion that no duty could arise from voluntary inspection, as distinguished from voluntary maintenance.
The proof in the present case fully negates any concept that defendant's gratuitous inspections were solely for its own internal purposes, and likewise refutes the allegations in its answer denying that safety inspections had been made, or that it had made regular and periodic inspections. At the time and immediately prior to the date Auchter took out its compensation and public liability policies on the courthouse project, defendant constantly represented that those who insured with it would receive countless extra safety and monetary benefits through the services of defendant's "safety experts" or "safety engineers." An advertising symbol referred to as "Mr. Friendly" was adopted, and by a series of advertisements placed in both national and trade publications, such representations as the following were made: (1) "In case after case, month after month, American Mutual's safety engineering service has helped contractors all over the country reduce accidents and costs;" (2) that insureds "have worked hand in hand with American Mutual Safety Engineers to build safety into every job;" (3) after explaining that one insured had saved money, the method was stated to be: "Close cooperation between Hittig Management and American Mutual Safety Engineers in designing and operating an effective safety program;" (4) "Thanks to thorough investigation and hazard analysis * * * and immediate investigations when accidents have occurred, this nationally known firm has been able to maintain a good accident record and to lower operating costs." These are but samplings of many representations that could be stated, but, in general, the tenor of each of the 29 advertisements admitted in evidence was that the safety engineers took an active part in the safety programs of the insureds and saved lives, limbs and money. A former executive of defendant, testifying directly to the function of the safety engineers, stated that it was to help the insureds to reduce accidents and to determine what were or were not unsafe practices. From all of the evidence it appears that defendant's safety engineers, and the various financial and safety benefits claimed to inure to insureds as a result of their safety engineering services, were its chief stock in trade. Just as certainly, it appears beyond a shadow of a doubt that the services gratuitously given by the engineers were not solely for defendant's own purposes.
Auchter, as one of the "Mr. Friendly" ads stated, had done business with defendant for 20 years. Because Auchter was a risk from whom annual premiums in excess of $25,000 were received by defendant, Auchter was classified as a "special risk", and as such, was given defendant's safety engineering services. At and prior to the occurrence here involved, defendant's employee who serviced Auchter was H.D. McClain, its district engineer for the State of Florida. Before that he had been district engineer in Tennessee, and had for many years inspected elevators for defendant.
McClain first went to the job site in the summer of 1955 while the demolition of previous buildings was going on, and there appears to be no question but that the purpose of this visit was to determine and report conditions so as to allow defendant's underwriting department to determine forms and rates of insurance. Construction started on the building sometime prior to October 10, 1955, and while it was McClain's testimony that he made but seven visits to the site up to March 19, 1957, when the hoist fell, (the last such visit being February 12, 1957,) witnesses for plaintiff testified he was on the site more frequently. McClain said his visits averaged about four hours, during which he would go over the entire project, concerning himself with housekeeping conditions, machine hazards, and the hazards of falls and falling objects. Further, he stated that during every visit he would see either Arthur Avent, Auchter's administrative engineer on the job, or Sidney Hodge, the project superintendent, with whom he discussed conditions and whom he found co-operative.
After each visit or inspection, McClain made various reports to his own company and wrote a letter to Auchter, the insured. His first visit after construction started took place over October 10 and 11, 1955, and his engineering report on this occasion stated: "A visit has been scheduled in November 1955. * * * At that time the engineer prepares to continue his accident prevention work and to assist the assured in making the job safe." The next formal report followed a visit by McClain on January 10, 1956, wherein he wrote: "Service plans have been set forth in previous reports and bi-monthly service upon a regular basis has been scheduled to this job until completion." Thereafter, formal reports were submitted showing visits in March, June, September and October of 1956, and in February of 1957. In the September 1956 report it was said: "The purpose of this visit was a periodic maintenance visit to observe continued operations on this project and to maintain policy holder service." On each occasion his engineering reports represented that he had inspected and analyzed "catastrophe" and "serious" hazards, including "Machine hazards." On a separate report form, McClain listed the machinery and equipment being used on the job and described their use and operation. After June, 1956, this form noted that there were "elevators" on the project, which were "typed" as builder's hoists, owned by the insured.
Following each visit formally reported to his employer, McClain, as we have said, also wrote letters to Auchter describing the visits and making representations of which the following are typical: (1) "I plan to again be in Jacksonville within a few weeks and will visit both of the above jobs again as a continuation of our service to you in the control of accident possibility;" (2) "I plan early visits in November to assist your superintendents;" (3) "Continuing our engineering service to you in making your operations safe * * * I made a survey of your operations and from an over-all standpoint found job practices satisfactory from a safety standpoint;" (4) "Continuing our engineering service to you and a maintenance of your loss control program, I called at the jobs in caption;" (5) "To assist you further in your accident control at the job, I suggested to Mr. Hodge that he ground the frame of the builder's hoist."
Copies of the safety engineer's inspection reports and surveys, as well as any recommendations made to the insured, were transmitted to various of defendant's departments, including sales and engineering. A former employee in the sales department testified that if at any time the recommendations were not complied with, the sales department would be requested to contact the risk to see that there was compliance. "Normal recommendations," he said, would not require any action on the part of the sales department, but those of an "urgent" nature would be followed up by the sales manager whose duty it was to see that there was immediate compliance on the part of the insured. Instructions from the home office were that if urgent recommendations were not complied with, cancellation notices would be issued and the risk normally cancelled. The exact action taken by the engineering department with regard to recommendations does not fully appear, but it does appear that, on one occasion at least, McClain went to Auchter's president when he met with some recalcitrance on the part of Hodge, the project superintendent, and one of the men with whom McClain directly discussed his inspections and findings. On each succeeding visit, McClain would check to see if his recommendations were carried out.
Taken in its entirety, all of this evidence leads solely to the conclusion that defendant did gratuitously undertake to make safety inspections and to render safety engineering services on the courthouse project, and that such inspections were planned, periodic and directed to the safety of the employees on the project. Under these circumstances, which parallel in some instances and exceed in others the circumstances in the Smith, Pabst and Van Winkle cases, it is our opinion that duty devolved upon defendant, owed to the plaintiffs, to make its inspections with due care. Of a certainty, defendant's present efforts to characterize McClain's activities as nothing but "casual observation" for its "own purposes," cannot be squared with the scope of the activities which were represented in the advertising, reports and letters before any question of liability arose. We hold that an enforceable duty to plaintiffs did arise as the result of defendant's gratuitous undertaking in this case.
Before looking to the evidence relating to the issue of whether defendant failed to use due care, or the skill and competence that it possessed, in the performance of its gratuitous undertaking, we think it well to first consider defendant's contentions: (1) that the absence of any reliance by either Auchter or plaintiffs upon McClain to inspect the hoist is a bar to the plaintiffs' actions; (2) that defendant's absence of control over Auchter or the hoist is a bar to the plaintiffs' actions; and (3) that the absence of privity between plaintiffs and defendant is a bar to plaintiffs' actions.
Treating upon these contentions in reverse order, the claim of the need for privity may be disposed of quickly. Florida, like Illinois and the vast majority of jurisdictions, has long since refused to permit the ancient shield of privity to insulate a tort feasor from the consequences of his negligent conduct. (See: Hoskins v. Jackson Grain Co. (Fla.) 63 So.2d 514; Wintersteen v. National Cooperage and Woodenware Co. 361 Ill. 95; Durham v. Warner Elevator Mfg. Co. 166 Ohio St. 31, 139 N.E.2d 10.) Speaking directly as to the liability of a gratuitous actor, a Florida court stated in Banfield v. Addington, 104 Fla. 661, 140 So. 893: "And even `where a man interferes gratuitously, he is bound to act in a reasonable and prudent manner according to the circumstances and opportunities of the case. And this duty is not affected by the fact, if so it be, that he is acting for reward, in other words under a contract, and may be liable on the contract. The two duties are distinct, * * *.'"
Similarly, the circumstance that defendant did not control Auchter or its equipment and employees cannot relieve it from liability for the consequences of its negligence. (Cf. Kahn v. James Burton Co. 5 Ill.2d 614, 620.) Defendant's duty here did not arise by virtue of its control, or right to control, the equipment, and neither did it arise as the result of any relationship with Auchter or its employees. The duty arose, rather, by operation of law from defendant's own independent and gratuitous course of conduct. Moreover, plaintiffs' charges of negligence are not based upon a defect in the equipment or upon conduct of Auchter's employees, but upon defendant's negligent performance of its gratuitous undertaking. The Smith, Pabst and Van Winkle cases, as well as Triolo v. Frisella, 3 Ill. App.2d 200, are a complete rejection of any concept that control of the premises where negligence occurs is essential to the liability of a gratuitous actor.
Defendant's contention that the element of reliance is essential to its liability to plaintiffs is founded upon the premise that defendant was charged "only with nonfeasance, a failure to report a risk, or dangerous situation, already existing," (39 Ill. App.2d at 122,) and upon the argument that whenever a duty arises from an undertaking, gratuitous or otherwise, the sine qua non for liability for nonfeasance, i.e. the omission to perform the undertaking, is reliance by the person to whom the undertaking was directed or by the person injured. This theory, however, either overlooks or misapprehends that defendant was charged with misfeasance, to-wit, that it gratuitously undertook to make safety inspections of the equipment and practices of its insured, and that it had "carelessly and negligently performed the said inspections on a certain elevator or hoist so that as a direct and proximate result thereof certain plaintiffs were injured and decedents of certain plaintiffs killed." (Emphasis ours.) Defendant was not charged with liability for omitting to perform an undertaking which plaintiffs or Auchter expected or relied upon it to undertake, (see: United States v. DeVane, (5th cir.) 306 F.2d 183; Restatement of Torts, § 325,) but was charged with having undertaken to perform safety inspections, a lawful act, and with having done so carelessly and negligently. (See: Smith v. American Employers' Ins. Co. 102 N.H. 530, 163 A.2d 564; Restatement of Torts, § 323 (1).) By undertaking to act defendant became subject to a duty with respect to the manner of performance. (Banfield v. Addington, 104 Fla. 661, 140 So. 893, 896; Roesler v. Liberty National Bank of Chicago, 2 Ill. App.2d 54, 58-59; Marks v. Nambil Realty Co. 245 N.Y. 256, 157 N.E. 129, 130.) That duty, as we have pointed out, extended to plaintiffs and was a duty to use due care, or as the Restatement of Torts puts it, defendant's duty was "to exercise such competence and skill as (it) possesses." § 323(1).
We think it clear under the law that defendant's liability for the negligent performance of its undertaking, as distinguished from a failure to perform, is not limited to such persons as might have relied upon it to act but extends instead to such persons as defendant could reasonably have foreseen would be endangered as the result of negligent performance. It is axiomatic that every person owes to all others a duty to exercise ordinary care to guard against injury which naturally flows as a reasonably probable and foreseeable consequence of his act, and that such duty does not depend upon contract, privity of interest or the proximity of relationship, but extends to remote and unknown persons. (Kahn v. James Burton Co. 5 Ill.2d 614, 622; Wintersteen v. National Cooperage Co. 361 Ill. 95, 103; Smith v. American Employers' Insurance Co. 102 N.H. 530, 163 A.2d 564; Van Winkle v. American Steam-Boiler Ins. Co. 52 N.J.L. 240, 19 A. 472, 475; Cf. Ziraldo v. Lynch Co. 365 Ill. 197; Restatement of Torts, § 311 (2).) Plaintiffs, as workmen on the project, were the chief beneficiaries of the safety inspection and safety engineering services rendered by defendant, and we need not labor the point that defendant could reasonably have expected and foreseen that they would be endangered by its failure to use due care.
To sustain its claim that reliance is essential to its liability defendant relies heavily upon Viducich v. Greater New York Mutual Insurance Co. 80 N.J. Super. 15, 192 A.2d 596, and upon analogies drawn from the Restatements of Agency, Torts and Contracts. The language of the Viducuch opinion relied upon, however, has little persuasion. Not only does it appear to be dictum, but the New Jersey court itself left unanswered the question whether proof of reliance is an absolute essential "in every case in which it is sought to hold a gratuitous undertaker." (192 A.2d at 601.) Nor do the sections of the Restatements advanced by defendant have any persuasive or controlling analogy to this case. Section 378 of the Restatement of Agency, section 325 of the Restatement of Torts and section 90 of the Restatement of Contracts all have reference to the situation where a person is injured because he was either induced to act or to forbear from acting because of reliance upon conduct or promises of another. None apply to the facts here, and, moreover, plaintiffs' actions are predicated upon section 323 (1) of the Restatement of Torts, viz., the negligent performance of a gratuitous undertaking, which does not require reliance as a basis for liability. In like manner, section 354 of the Restatement of Agency has no value here; it has reference to liability arising from an agent's "subsequent unexcused failure to act," after having previously acted in such a manner as to cause his principal or others to rely upon him.
Plaintiffs have argued that if reliance by Auchter is essential to defendant's liability to them, the proof is such that the jury could find with reason that Auchter had in fact relied upon defendant's safety inspections. Without making an extended analysis of the pertinent evidence, we believe that there is merit in this contention. However, for the reasons already stated, it is enough to say that reliance, either by plaintiffs or Auchter, was not an absolute essential to the liability of the defendant in this case.
Relying largely upon inspection and maintenance cases where the scope of undertaking, duty and liability were determined by contract, (e.g. Wolfmeyer v. Otis Elevator Co. (Mo.) 262 S.W.2d 18; Otis Elevator Co. v. Embert, 198 Md. 585, 84 A.2d 876; and Blackhawk Hotels Co. v. Bonfoey, (8th cir.) 227 F.2d 232,) defendant also injects a contention that it could be liable to plaintiffs only if it had assumed entirely Auchter's duty of inspecting the hoist and cable. We do not find, however, that such a condition attaches to the liability of one gratuitously making safety inspections. In the Smith, Van Winkle and Pabst cases duty and liability were found to arise even though the voluntary inspections had been periodic, and we are persuaded by the holding in Van Winkle that the gratuitous inspector became subject to an enforceable duty to use due care "as soon as it took part, practically, in the management of this machine." (19 A.2d at 475.) Moreover, it is fundamental in the law of negligence that there may be more than one proximate cause of injury, (De La Concha v. Pinero, (Fla.) 104 So.2d 25; St. Louis Bridge Co. v. Miller, 138 Ill. 465,) and that one is liable for its negligent conduct whether it contributed in whole or in part to the plaintiff's injury, so long as it was one of the proximate causes of injury.
Turning to the material facts, Auchter purchased the construction hoist from Archer Iron in late 1955, and erected it at the courthouse project in May, 1956, ten months before the occurrence which led to plaintiffs' actions. The hoist bail, with the platform attached, was raised and lowered by a steel cable and moved along vertical guide rails on each side, the guide rails being attached to the tubular metal pipes which made up the hoist tower. Built into the bail was a device known as a "broken rope safety," consisting of two serrated jaws, or "dogs," opposite the two guide rails. The dogs remained retracted so long as the weight of the car hanging from the cable exerted pressure on the top of the bail, but, through the action of cams and springs, would extend out and engage the guide rails as soon as pressure was released on the cable. The pressure and traction exerted by the dogs on the guide rails was thus supposed to arrest the gravitational fall of the platform. As is explained in greater detail in the opinion of the Appellate Court, a new 3/4-inch cable manufactured by Union Wire was installed, and a one-part line was rigged between the hoist and a drum, activated by a motor, upon which the cable was wound. To accomplish this rigging, two new sheaves furnished by Archer Iron were employed. These sheaves had an outer diameter of 19 inches, and an inner diameter of 16 inches at the bed of the groove. Within a short time after the hoist had gone into operation, Auchter, to slow down the speed of the platform, re-rigged the cable and made a two-part line by affixing a third sheave to the top of the bail. This sheave, which was used and had been obtained from Auchter's construction yard, had an inner diameter of slightly less than 10 inches. It was in plain view, and easily accessible for inspection.
Once in operation the hoist was used to transport building materials and, except for the period during which it was being re-rigged, the uncontroverted proof in the record is that personnel of all categories on the project, laborers, supervisors and company executives, constantly rode on the hoist up to the time it fell. There was evidence that stairways in the building under construction were ill-lit, cluttered with scaffolds, waste and materials, and sometimes closed; and it further appears that the greatest use of the hoist by personnel was at starting and quitting times. On the day of the occurrence, at quitting time, ...