Carvalho v. Toll Bros. and Developers

• Citation: 675 A.2d 209,143 N.J. 565
• Parties: Cidalina O. CARVALHO, Executrix of the Estate of Francisco F. Carvalho, Plaintiff-Respondent, v. TOLL BROTHERS AND DEVELOPERS, Defendant and Third-Party Plaintiff, and Bergman Hatton Engineering Associates, Defendant-Appellant, and West Windsor Township, Defendants, and Jude Enterprises, Third-Party Defendant-Respondent.
• Decision Date: 06 May 1996
• Court: United States State Supreme Court (New Jersey)

Page 565

143 N.J. 565

675 A.2d 209

Cidalina O. CARVALHO, Executrix of the Estate of Francisco

F. Carvalho, Plaintiff-Respondent, v. TOLL BROTHERS AND DEVELOPERS, Defendant and Third-Party Plaintiff, and Bergman Hatton Engineering Associates, Defendant-Appellant,

and

West Windsor Township, Defendants,

and

Jude Enterprises, Third-Party Defendant-Respondent.

Supreme Court of New Jersey.

Argued Oct. 23, 1995.

Decided May 6, 1996.

Frederick J. Schragger, Lawrenceville, for appellant (Mr. Schragger, attorney; Andrew J. Schragger, on the briefs).

Richard B. Gelade, Trenton, for respondent Cidalina O. Carvalho, etc.

Robert F. Colquhoun, Morristown, for respondent Jude Enterprises (Colquhoun & Colquhoun, attorneys).

Arthur Bergman, Hackensack, submitted a brief on behalf of amici curiae Consulting Engineers Council of New Jersey and The American Consulting Engineers Council (Sokol, Behot & Fiorenzo, attorneys).

John S. Barnett, Livingston, submitted a brief on behalf of amicus curiae New Jersey Society of Professional Engineers, Inc. (Picco Mack Herbert, attorneys).

The opinion of the Court was delivered by

HANDLER, J.

This case arises out of a fatal accident at a construction site. A workman was killed when the unstable walls of a deep trench in which he was working collapsed on him. An inspector hired by the project engineer, observing the work being performed at the site and aware of conditions in the trench, witnessed the accident. Under the contract with the project owner, the engineer was required to have an inspector at the construction site every day to monitor the progress of the work. The engineer did not have any contractual obligation to supervise the safety procedures of the construction.

We must decide whether an engineer has a legal duty to exercise reasonable care for the safety of workers on a construction site when the engineer has a contractual responsibility for the progress of the work but not for safety conditions yet is aware of working conditions on the construction site that create a risk of serious injury to workers.

I

In 1985, West Windsor Township ("Township") retained defendant Bergman Hatton Engineering Associates ("Bergman" or "engineer") to prepare plans for the construction of sewer service for the Assunpink Basin. Toll Brothers and Developers ("Toll") was the general contractor on the project.

In April 1987, the Township and Bergman entered into a contract, referred to as "Contract Documents for Assunpink Basin Sewerage Facilities." The contract included, by reference, provisions of the New Jersey Construction Safety Code and OSHA rules. ¹

The contract provided that "[t]renching work shall be shored, braced, or supported as conditions may warrant." The identical requirement also applied to excavation work. The section on trenching further specified that the contractor "shall control grading in a manner to prevent water running into excavations." The "Safety Requirements" in the contract, in addition to its reference to New Jersey and OSHA safety rules, referred to "the possible existence of pipe and other underground improvements which may or may not be shown on the plans." The contractor was responsible for protecting such utility pipes, whether or not they were shown in the plan. That might involve removing and then replacing them, or simply moving them. The contract stated: "The Contractor shall also, at his own expense, support and protect to the Engineer's satisfaction, all utilities that may cross the trench." Although the contract did not give the engineer control of or responsibility for the construction methods, it did contain several sections that required the general contractor to modify how it laid pipe foundation depending on whether there was a "Stable Trench Condition" or an "Unstable Trench Condition."

In May 1987, the engineer hired Bruce Stonebeck ("Stonebeck" or "inspector") as an inspector, and in October 1987, he became the site representative on the Assunpink sewer project. He was at the site daily. According to Bergman, he was hired "to inspect only the material being used and the amount of work being done at this site."

The Township and the contractor, Toll, entered into a Facility Agreement, which was later signed in February 1988. The Facility Agreement covered several areas, including methods and speed of construction. Under the Facility Agreement, Toll was to construct the sewer in accordance with the Facility Documents (plans and specifications) that the engineer had prepared. Toll was to be "solely responsible for all construction means, methods, techniques, sequences and procedures utilized in connection with the Work .... TOLL shall be responsible to TOWNSHIP for the acts and omissions of its employees, subcontractors, and their agents and employees ...."

The Township assigned Bergman to be its representative at the work site. The Facility Agreement required the engineer to maintain a full-time site representative to "ensure that the work of TOLL is being performed in accordance with the requirements of the Facility Documents and of this Agreement ...." The engineer was "not [to] have control over or charge of construction means ... or programs used by TOLL." The Facility Agreement also specified, however, that the engineer had the authority to stop work on the project: "TOLL shall cause its employees, agents and subcontractors to cease the performance of the Work at the direction of the Engineer." Under the Facility Agreement, Toll worked "on an expedited basis," and was to complete the job within the time provided by a Construction Schedule approved by Bergman. ²

In December 1987, while working in a 13-foot-deep trench, decedent Francisco Carvalho, an employee of Jude Enterprises ("Jude"), the subcontractor that Toll hired to do the excavation work, died when the unshored trench collapsed and crushed him. The parties agree that on the date of this accident, Defendant's site representative, Bruce Stonebeck, was present at the trench, watching the decedent working in the trench.

In May 1989, plaintiff, decedent's wife, sued engineer Bergman, contractor Toll, and the Township for wrongful death and survivorship. The trial court dismissed the complaint against the Township because plaintiff failed to comply with the notice requirements of the Tort Claims Act, N.J.S.A. 59:8-8. The Township is not a party to this appeal. Bergman cross-claimed against Toll for indemnification, and Toll, in turn, impled subcontractor Jude as third-party defendant for indemnification.

Plaintiff settled with Jude and Toll. Jude's insurer paid the entire settlement because it indemnified Toll. Bergman thereafter moved for summary judgment. After the completion of discovery, the trial court granted Bergman's motion. On plaintiff's appeal, the Appellate Division reversed the summary judgment in favor of Bergman. 278 N.J.Super. 451, 651 A.2d 492. We granted the petition for certification. 140 N.J. 326, 658 A.2d 726 (1995).

II

The question of whether a duty to exercise reasonable care to avoid the risk of harm to another exists is one of fairness and policy that implicates many factors. Dunphy v. Gregor, 136 N.J. 99, 110, 642 A.2d 372 (1994). The determination of such a duty is generally considered "a matter of law properly decided by the court." Wang v. Allstate Insurance Co., 125 N.J. 2, 15, 592 A.2d 527 (1991).

The foreseeability of harm is a significant consideration in the determination of a duty to exercise reasonable care. The "[a]bility to foresee injury to a potential plaintiff does not in itself establish the existence of a duty, but it is a crucial element in determining whether imposition of a duty on an alleged tortfeasor is appropriate." Carter Lincoln-Mercury, Inc. v. EMAR Group, Inc., 135 N.J. 182, 194, 638 A.2d 1288 (1994) (citations omitted).

"Once the foreseeability of an injured party is established, ... considerations of fairness and policy govern whether the imposition of a duty is warranted." Id. at 194-95, 638 A.2d 1288. The assessment of fairness and policy "involves identifying, weighing, and balancing several factors--the relationship of the parties, the nature of the attendant risk, the opportunity and ability to exercise care, and the public interest in the proposed solution." Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439, 625 A.2d 1110 (1993) (citing Goldberg v. Housing Auth., 38 N.J. 578, 583, 186 A.2d 291 (1962)).

The determination of the foreseeability of harm and considerations of fairness and policy are connected. "[T]he concept of foreseeability [subsumes] many of the concerns we acknowledge as relevant to the imposition of a duty: the relationship between the plaintiff and the tortfeasor, the nature of the risk, and the ability and opportunity to exercise care." Carter Lincoln- Mercury, supra, 135 N.J. at 194, 638 A.2d 1288. Nevertheless, the foreseeability of harm is susceptible to objective analysis, while the resolution of fairness and policy is a much less certain determination. "Whereas the magnitude and likelihood of potential harm are objectively determinable, the propriety of imposing a duty of care is not." Weinberg v. Dinger, 106 N.J. 469, 485, 524 A.2d 366 (1987). Although in many cases a duty of care can arise simply from the determination of the foreseeability of harm, usually "more is needed" to find such a duty, that " 'more' being the value judgment, based on an analysis of public policy, that the actor owed the injured party a duty of reasonable care." Kelly v. Gwinnell, 96 N.J. 538, 544, 476 A.2d 1219 (1984) (citing Palsgraf v. Long Island R.R., 248 N.Y. 339, 162 N.E. 99 (1928)).

Courts consider initially the factor of foreseeability as the predicate for the duty to exercise reasonable care. The facts in this case point clearly to the foreseeability of the risk of injury to workers in the circumstances surrounding decedent's accident. It was readily foreseeable that deep trenches posed the...