(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that,
in the interests of brevity, portions of any opinion may not have been summarized).
Argued October 23, 1995 -- Decided May 6, 1996
HANDLER, J., writing for a unanimous Court.
In 1985, West Windsor Township retained Bergman Hatton Engineering Associates (Bergman) to
prepare plans for the construction of sewer service for the Assunpink Basin. Toll Brothers and Developers was
the general contractor on the project. The Township and Bergman entered into a contract on the project in
April 1987. In May 1987, the engineer hired Bruce Stonebeck as an inspector. Stonebeck became the site
inspector in October 1987. According to Bergman, Stonebeck was hired to inspect only the material being used
and the amount of work being done.
In December 1987, while working in a thirteen-foot-deep trench, Francisco Carvalho, an employee of
the subcontractor (Jude Enterprises) that Toll Brothers had hired to do the excavation work, died when an
unshored trench collapsed and crushed him. On the date of the accident, the inspector was present, watching
Mr. Carvalho work in the trench.
In May 1989, Mr. Carvalho's widow sued the Township, Bergman, and Toll Brothers for wrongful death
and survivorship benefits. The trial court dismissed the complaint against the Township because Mrs. Carvalho
did not comply with the notice requirements of the Tort Claims Act. Bergman cross-claimed against Toll
Brothers for indemnification and Toll, in turn, brought in Jude Enterprises as a third-party defendant for
indemnification.
Mrs. Carvalho settled with Jude Enterprises and Toll Brothers. Jude's insurer paid the entire settlement
because it indemnified Toll. Bergman then moved for summary judgment, which was granted. The Appellate
Division reversed the summary judgment. The Supreme Court granted Bergman's petition for certification.
HELD: 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.
1. The question of whether to impose a duty to exercise reasonable care to avoid the risk of harm to another
is one of fairness and policy that implicates many factors. These include the foreseeability of the harm, the
relationship of the parties, the responsibility for the conditions creating the risk of harm, the element of control
arising from the relationship of the parties, the opportunity and capacity of the party to have avoided the risk
of harm, and an actual awareness or knowledge of the risk of harm. (pp. 7-13)
2. Considerations of fairness and public policy require imposing a duty on the engineer and the inspector to
exercise reasonable care to avoid the risk of injury on the construction site. There was a sufficient connection
between the engineer's contractual responsibilities and the condition and activities on the work site that created
the unreasonable risk of serious injury. The engineer had the opportunity to foresee and discover the risk of
harm and to exercise reasonable care to avert any harm. (pp. 13-14)
3. The engineer argues that it should not be financially responsible for Carvalho's death because Toll Brothers was required to name Bergman as an additional insured on its insurance policy, but failed to do so. Bergman also had an exculpatory agreement with the Township. It would be unfair to exonerate Bergman from its liability to Carvalho on the basis of its exculpatory agreements with the Township and Toll Brothers. Their private
financial arrangements and understandings do not overcome the public policy that imposes a duty of care and
ascribes liability to the engineer in these circumstances. (pp.14-16)
The judgment of the Appellate Division is AFFIRMED and the matter is REMANDED to the Law
Division for further proceedings.
CHIEF JUSTICE WILENTZ and JUSTICES POLLOCK, O'HERN, GARIBALDI, STEIN, and
COLEMAN join in JUSTICE HANDLER's opinion.
SUPREME COURT OF NEW JERSEY
A-
35 September Term 1995
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.
Argued October 23, 1995 -- Decided May 6, 1996
On certification to the Superior Court,
Appellate Division, whose opinion is reported
at
278 N.J. Super. 451 (1995).
Frederick J. Schragger argued the cause for
appellant (Mr. Schragger, attorney; Andrew J.
Schragger, on the briefs).
Richard B. Gelade argued the cause for
respondent Cidalina O. Carvalho, etc.
Robert F. Colquhoun argued the cause for
respondent Jude Enterprises (Colquhoun &
Colquhoun, attorneys).
Arthur Bergman 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 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.
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.See footnote 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. We granted
the petition for certification.
140 N.J. 326 (1995).
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. 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 (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 (1984) (citing Palsgraf v.
Long Island R.R.,
162 N.E. 99 (N.Y. 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 risk that the trench walls could collapse and
seriously injure workers. The contract itself provided for the
specific possibility of unstable trench conditions and prescribed
contractual duties addressed to those concerns. Moreover,
trenches in other areas of the site had collapsed several times
during the construction. On the three days before the collapse,
the workers used trench boxes to protect themselves from the
chance that the trench would collapse.
Establishment of the foreseeability of the risk of injury
requires the further determination of whether considerations of
fairness and policy warrant imposing a duty. Carter Lincoln-Mercury, Inc., supra, 135 N.J. at 194-95. As noted, that inquiry
is multi-dimensional.
One factor bearing on considerations of fairness and policy
is the relationship of the parties. Here, the relationship of
the parties was contractual. That relationship contemplated the
active participation and involvement by the engineer in the
construction work at the 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.
Another important consideration in assessing the
relationship between the parties is the responsibility for
conditions creating the risk of harm. The trial court here
granted Bergman's motion for summary judgment on the grounds that
the "agreement between the contractor, Toll Brothers, and the
engineer, Bergman & Hatton, places any burden to ensure a safe
workplace on Toll Brothers alone." The court determined that
Stonebeck's and Bergman's duty was to warn the parties charged
with safety, the contractor or subcontractor, not the workers.See footnote 3
Nevertheless, there was an overlap of work-progress
considerations and work-safety concerns. Matters of
construction-site safety did bear indirectly on the engineer's
contractual responsibility for supervising the progress of the
work. Indeed, common sense tells us that an accidental injury or
death on the work site because of the failure to take safety
measures would directly affect the progress of the work by
bringing it to a halt.
The record strongly indicates that the engineer's
responsibilities for ensuring compliance with the plans and the
rate of work-progress, including the proper handling of utilities
that crossed the trench, implicated safety concerns. The
contract itself provided that the condition of the trenches was
relevant to determining construction procedures. Stonebeck noted
when there were unstable trench conditions. The engineer also
had to ensure that Toll protected utility lines crossing the
trench. Stonebeck and Bergman admit that compliance with the
plans and the rate of progress included the proper handling of
utilities that crossed the trench. Stonebeck was aware that Toll
did not use a trench box because it would interfere with two
utility pipes. Using trench boxes to eliminate the risk of a
trench collapse would require cutting and restoring utility
lines, which would slow down the work. Those circumstances
demonstrate the interrelationship between safety and progress.
The connection between the engineer's responsibilities over the
progress of work and safety measures at the job site is relevant
in determining whether it is fair to impose a duty of care
addressed to work site safety conditions. Cf. Sykes v. Propane
Power Corp.,
224 N.J. Super. 686 (App. Div. 1988) (holding that
engineer responsible only for plans to upgrade a chemical
recovery plant to meet environmental regulations did not have
sufficient relationship to co-worker's hazardous practices that
resulted in accidental explosion to warrant imposition of duty of
care); Young v. Eastern Engineering & Elevator Co.,
554 A.2d 77
(Pa. Super.) (imposing no duty on architect who had no
responsibility to supervise or control construction other than to
make brief, periodic inspections of construction quality), appeal
denied,
569 A.2d 1367 & 1369 (Pa. 1989).
The element of control arising from the relationship between
the parties and the opportunity and capacity of defendant to have
avoided the risk of harm are also relevant in considering the
fairness in imposing a duty of care. As noted, Stonebeck's job
focused on compliance with the plans and the rate of progress
according to the construction schedule. It was also part of
Stonebeck's job to ensure that Toll protected utility lines
crossing the trench. The Facility Agreement clearly required
Toll to stop work at Bergman's direction. The Appellate Division
stressed the fact that "Bergman had the authority to stop the
job." 278 N.J. Super. at 462. The record thus strongly
indicates that if safety conditions could affect work progress,
the engineer had the authority and control to take or require
corrective measures to address safety concerns.
The actual awareness or knowledge of the risk of harm is
also significant in determining the fairness in imposing a duty
of care. The record combined with all inferences favorable to
plaintiff supports a factual finding that Bergman in fact knew of
the danger. The inspector was at the construction site every day
and monitored the trench that eventually collapsed. Trench
conditions were specifically part of the engineer's contractual
concerns and Stonebeck knew of the condition of the trench.
Stonebeck was aware that the trench collapsed in other areas and
that it was unstable in other areas including a point 200 yards
from the fatal collapse one week before the accident.
The existence of actual knowledge of an unsafe condition can
be extremely important in considering the fairness in imposing a
duty of care. Courts in several other jurisdictions have imposed
a duty on a supervising architect or engineer with actual
knowledge of a serious safety risk even if the supervisor never
expressly assumed responsibility for safety. Frank D. Wagner,
Annotation, Liability to One Injured in Course of Construction,
Based upon Architect's Alleged Failure to Carry Out Supervisory
Responsibilities,
59 A.L.R.3d 869 (1974). In Balagna v. Shawnee
County,
668 P.2d 157 (Kan. 1983), the engineer's inspector was on
site at a sewer construction project to ensure compliance with
the plans; the contractor was responsible for worker safety; and
a worker was killed in an unstable, unshored trench. The court
imposed a duty on the engineer who had actual knowledge that the
trenching operations were being carried out in violation of OSHA
standards and had the authority to stop the work, or at least to
say something to the contractor. Id. at 164-65. See also Miller
v. DeWitt,
226 N.E.2d 630 (Ill. 1967) (imposing a duty on
architects, stressing actual knowledge of a danger on the part of
architects who had a contractual duty to supervise the work and
power to halt work until safety precautions were taken).
We conclude that considerations of fairness and public
policy require imposing a duty on Bergman and Stonebeck to
exercise reasonable care to avoid the risk of injury on the
construction site. The risk of serious injury from the collapse
of an unstable trench was clearly foreseeable. Bergman had
explicit responsibilities to have a full-time representative at
the construction site to monitor the progress of the work, which
implicated work-site conditions relating to worker safety. Those
responsibilities related to the condition of trenches, the
handling of utility lines crossing trenches, and whether measures
to shore up and stabilize trenches through the use of a trench
box were necessary. The engineer had sufficient control to halt
work until adequate safety measures were taken. There was a
sufficient connection between the engineer's contractual
responsibilities and the condition and activities on the work
site that created the unreasonable risk of serious injury.
Further, the engineer, through its inspector, was on the job site
every day, observed the work in the trench, and, inferably, had
actual knowledge of the dangerous condition.
In sum, the engineer had the opportunity and was in a
position to foresee and discover the risk of harm and to exercise
reasonable care to avert any harm. Under these circumstances, we
hold that Bergman and Stonebeck had a duty of care to the
decedent.
by or resulting from the sole negligence of the" indemnitee in
the "giving of or the failure to give directions or
instructions." (Emphasis added.) Hence, in circumstances
involving joint-tortfeasors, as in this case, it would not be
inconsistent with public policy for Toll to indemnify Bergman for
Bergman's own share of negligence.
Bergman reasonably understood that it had no contractual
obligation to address safety concerns and was not directly
responsible for worker safety. Hence, the interpretation and
enforcement of hold harmless agreements should be governed by the
intention of the parties in providing for insurance and the
division of risk. In New Jersey,
there is no essential public policy
impediment to certain hold harmless
agreements. The principle derives from
recognition that, ordinarily, the
responsibility for risk of injury is shifted
by the primary parties to insurance carriers,
and the parties should be left to determine
how the insurance burdens shall be
distributed.
[Assembly Judiciary, Law, Public
Safety and Defense Cte., Statement
to Assembly Bill No. 590-L 1983, c.
107, reprinted in N.J.S.A. 2A:40A-1
(paraphrasing Doloughty v.
Blanchard Constr. Co.,
139 N.J.
Super. 110, 116 (Law Div. 1976)).]
Bergman argues that it should not be financially responsible for
decedent's death because Toll was required to name Bergman as an
additional insured on its insurance policy, but failed to do so.
It also points out that Toll's insurer became insolvent.
We conclude that it would be unfair to exonerate Bergman
from its liability to decedent on the basis of its exculpatory
agreement with the Township and Toll. Their financial
arrangements and understanding do not overcome the public policy
that imposes a duty of care and ascribes liability to the
engineer in these circumstances.
CHIEF JUSTICE WILENTZ and JUSTICES POLLOCK, O'HERN,
GARIBALDI, STEIN, and COLEMAN join in JUSTICE HANDLER's opinion.
NO. A-35 SEPTEMBER TERM 1995
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
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.
DECIDED May 6, 1996
Chief Justice Wilentz PRESIDING
OPINION BY Justice Handler
CONCURRING OPINION BY
DISSENTING OPINION BY
Footnote: 1 The contract refers to New Jersey Construction
Safety Codes, but the relevant code section, N.J.A.C. 12:180, was
repealed before 1980 to allow federal OSHA rules to govern in the
state. See Meder v. Resorts Int'l Hotel, Inc.,
240 N.J. Super. 470, 475-76 (App. Div. 1989) (explaining effect of repeal),
certif. denied,
121 N.J. 608 (1990).
Footnote: 2 Delays were also dealt with in the Facility
Agreement:
If TOLL is delayed . . . by any cause beyond TOLL'S control, or by any other cause which Engineer determines justifies the delay, then TOLL'S time for performance under the Construction Schedule shall be extended for such reasonable time as Engineer shall determine. Any request for an extension of performance time provided under the Construction Schedule shall be made in writing to Engineer. Footnote: 3 Because plaintiff settled with the contractor and subcontractor, and because Stonebeck had no "duty to warn the employees of the contractor or subcontractor," the court granted engineer Bergman's summary judgment motion.