South Burlington School Dist. v. Calcagni-Frazier-Zajchowski Architects, Inc., CALCAGNI-FRAZIER-ZAJCHOWSKI

• Docket Nº: No. 110-79
• Citation: 410 A.2d 1359, 138 Vt. 33
• Case Date: January 16, 1980
• Court: United States State Supreme Court of Vermont

Page 1359

410 A.2d 1359 138 Vt. 33, 28 UCC Rep.Serv. 1382 SOUTH BURLINGTON SCHOOL DISTRICT
v.
CALCAGNI-FRAZIER-ZAJCHOWSKI ARCHITECTS, INC., Kenclif
Construction, Inc., A. C. Hathorne Co., Inc., and
W. R. Grace & Company
v.
MARTIN FIREPROOFING CORP. No. 110-79. Supreme Court of Vermont. Jan. 16, 1980.

Page 1360

[138 Vt. 37] Gravel, Shea & Wright, Ltd., Burlington (Robert B. Hemley, Burlington, on the brief) and Alan F. Sylvester of Sylvester & Maley, Burlington, for plaintiff.

Page 1361

[138 Vt. 38] John T. Sartore of Paul, Frank & Collins, Inc., Burlington, for Calcagni-Frazier-Zajchowski Architects, Inc.

Peter B. Joslin of Theriault & Joslin, Montpelier, for Kenclif Const., Inc.

Robinson E. Keyes and Mark R. Butterfield of Ryan Smith & Carbine, Ltd., Rutland, for A. C. Hathorne, Co.

Robert D. Rachlin and Debra A. Martin of Downs, Rachlin & Martin, South Burlington, for W. R. Grace & Co.

Before [138 Vt. 33] BARNEY, C. J., and DALEY, LARROW, BILLINGS and HILL, JJ.

[138 Vt. 38] HILL, Justice.

Plaintiff, South Burlington School District (South Burlington), appeals from the entry of a judgment order on verdicts directed in favor of each defendant at the close of plaintiff's case. South Burlington claims that the trial court erred in taking the case from the jury and in support of its contention points to evidence in the record which it believes sufficiently raised issues of fact to be decided by the jury.

The relevant facts are as follows. On December 9, 1968, South Burlington contracted with Calcagni-Frazier-Zajchowski (CFZ), a partnership, ¹ for the planning, design and construction of an addition to the Orchard Elementary School. CFZ drafted plans, and specifications were put out to bid. Although the original specifications called for a particular lightweight insulating roof fill, CFZ also included in the specifications an alternative calling for the use of a less expensive roofing system, Zonolite Dyzone, manufactured by defendant W. R. Grace & Company (Grace). The substitute roofing was added to the specifications in case South Burlington needed to trim costs to meet its budget after receiving the bids.

The specifications went out to bid and Kenclif Construction, Inc. (Kenclif) submitted the low bid. In order to reduce costs Kenclif and South Burlington agreed that the substitute Zonolite Dyzone system would be used. That system called for successive layers of materials, the base of which was a [138 Vt. 39] precast structural deck. A one inch thickness of Dyfoam vent board was then to be applied to the deck and the Zonolite lightweight concrete was to be placed to a specified thickness and profile on top of the Dyfoam vent board. The Zonolite insulating concrete was then to be covered by a built-up roofing. Kenclif subcontracted with Martin Fireproofing Corp. (Martin) for the installation of the Zonolite Dyzone insulating fill, and with A. C. Hathorne Co., Inc. (Hathorne) for construction of the built-up roof. The insulation was laid by Martin on October 6, 7, and 8, 1969, and construction of the built-up roof, although originally scheduled to begin on October 15, 1969, was not commenced until the last few days of October. During the period between the scheduled commencement of construction of the built-up roof and the actual beginning of construction the roofing insulation was exposed to substantial precipitation.

In mid-May 1970, CFZ certified to South Burlington that the school addition was substantially complete. In February 1971, after the addition had been occupied, the roof split and leaking occurred. After repair efforts by the various defendants failed to remedy the problem, South Burlington hired an outside firm to correct the defects in the roof.

On July 3, 1974, South Burlington commenced this action against defendants CFZ, Kenclif, Hathorne and Grace, alleging negligence, breach of contract, and breach of express and implied warranties in connection with the design and construction of the school roof. Numerous cross-claims were filed by the various defendants, and Martin was impleaded by CFZ and Kenclif as a third-party defendant. In addition, Hathorne counterclaimed against South Burlington for the value of repair work performed on the roof. ²

Page 1362

The trial court directed the verdicts at issue here ostensibly because South Burlington had failed to establish a prima facie case for relief. Plaintiff claims that the trial court erred in granting these motions since there is sufficient [138 Vt. 40] evidence in the record which fairly and reasonably tends to support its claims, and that if there are any insufficiencies in the record it is because of the lower court's errors in excluding evidence, particularly the testimony of plaintiff's expert witness. We consider plaintiff's claims in order.

I. Directed Verdicts

In considering a motion for a directed verdict, a trial court is "required to view the evidence in the light most favorable to the plaintiff, exclude the effect of modifying evidence, and resolve all conflicts against the defendants." Waite v. Brown, 132 Vt. 20, 23, 312 A.2d 915, 915 (1973). If, after examining the evidence in this manner, it appears to the court that there is any substantial evidence which fairly and reasonably tends to support the plaintiff's claim, the case should go to the jury for resolution. Burleson v. Caledonia Sand & Gravel Co., 127 Vt. 594, 594, 255 A.2d 680, 681 (1969); Hedman v. Siegriest, 127 Vt. 291, 293, 248 A.2d 685, 686 (1968). Moreover, in determining whether there is sufficient evidence to carry the matter to the jury, the court must focus on the tendency of the evidence, not its weight. Lewis v. Vermont Gas Corp., 121 Vt. 168, 179, 151 A.2d 297, 304 (1959). It is not for the court to decide which of two or more conclusions that are supportable by the evidence is more correct. Forcier v. Grand Union Stores, Inc., 128 Vt. 389, 398, 264 A.2d 796, 800 (1970). In short, the plaintiff is entitled to the strongest inferences reasonably deducible from the most favorable evidence, and insofar as the evidence "tends, in any fashion, to support" plaintiff's claim it is entitled to a jury determination of the issues. LaRocque v. LaMarche, 130 Vt. 311, 314, 292 A.2d 259, 261 (1972).

Of course, there must be a view of the evidence which supports the essential elements of the plaintiff's case. Id. Evidence which gives rise to a determination based on "mere conjecture, surmise or suspicion, is an insufficient foundation for a verdict." Lewis, supra, 121 Vt. at 179, 151 A.2d at 304.

With these standards in mind, we proceed to examine whether the plaintiff established below the necessary elements[138 Vt. 41] of its prima facie case against the various defendants.

A. Defendant CFZ

Plaintiff claims that CFZ was negligent in the performance of its obligation to exercise reasonable skill and care in the design and selection of materials for the construction of the roof and that CFZ was negligent in its failure to supervise the construction project. CFZ moved for a directed verdict on these claims, raising four grounds, two of which are relevant here: first, that there was no evidence of negligence attributable to CFZ, and second, that there was no evidence of negligence attributable to CFZ which was the proximate cause of South Burlington's injury. ³

With respect to the negligent design claim, in order to establish a prima facie case for relief South Burlington had to show that CFZ breached its duty to use reasonable care and that as a proximate result of this breach the plaintiff suffered injury. Involved here is the question of the standard of care owed by a roof designer in the performance of its obligation to design and select materials for the construction of a school building roof in 1969. While it is true, as plaintiff argues, that the defendant must exercise reasonable skill and care, the

Page 1363

record is devoid of evidence as to what the "reasonable roof designer" would have done in a similar situation. In particular, South Burlington's argument that CFZ should have made an independent inquiry into the feasibility of using the Zonolite Dyzone system and should not have relied on the representations made by the manufacturer does not satisfy its burden of showing a failure to exercise due care. There is no evidence in the record that the Zonolite system was of inferior quality or that it was poorly suited for Vermont conditions. Without being apprised of the standard[138 Vt. 42] to which CFZ would be held accountable a jury could not properly determine whether CFZ had failed to use the requisite care.

It is the function of the jury as the trier of fact to draw the logical inferences from the evidence in light of their experience and knowledge. Where, however, the jury is incompetent to draw those inferences because they are distinctively related to a profession beyond the understanding of the average layman, it is necessary to introduce expert testimony. See Largess v. Tatem, 130 Vt. 271, 278-79, 291 A.2d 398, 403 (1972). In the present case, the standard of care required of a roof designer in 1969 was beyond the ken of the jury. To establish its case plaintiff needed to introduce evidence of the yardstick against which CFZ's conduct was to be measured. Since South Burlington failed to do so the trial court was not in error in directing the verdict as to this claim. ⁴

With regard to South Burlington's negligent supervision claim, the duty owed by CFZ to the plaintiff was set out in their contract. See Lapoint v. Dumont Construction Co., 128 Vt. 8, 10, 258 A.2d 570, 571 (1969). Their agreement provided as follows:

The Architect shall make periodic visits to the site to familiarize himself generally with the progress and quality of the Work and to determine in general if the Work is proceeding in accordance with the Contract Documents. On the basis of his on-site observations as an Architect, he shall endeavor to guard the...