(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 September 26, 2000 -- Decided March 13, 2001
PER CURIAM
This appeal involves a wrongful death action instituted by Lisa Pfenninger (plaintiff) to recover damages
resulting from the death of her twenty-nine-year-old husband, Matthew Pfenninger, who was killed when an eight
to nine foot deep unbraced trench collapsed on top of him while he was installing drainage pipe. In this appeal, the
Court considers three issues: whether the landowner, Hunterdon Central Regional High School District Board of
Education (Board) and the architect, A.J. O'Sullivan Architects, P.A. (O'Sullivan) (collectively referred to as
“defendants”), breached a duty of care to Pfenninger arising out of a responsibility to supervise Pfenninger's
company in the excavation and piping of the trench; whether the trial court abused its discretion in denying
plaintiff's requests for discovery of other documents involving O'Sullivan's responsibility to the Board on related
construction projects; and whether the Board breached its duty to Pfenninger in negligently supplying him with
nonconforming drainage pipe that required his entry into the trench to connect it.
In 1994, the Board commenced several construction projects at Hunterdon High School, including the
installation of a drainage system for the varsity baseball and soccer/lacrosse field. Although the Board hired
multiple contractors to perform the various projects, it did not retain a general contractor. Responsibility for
coordinating and scheduling the projects was shared by the Board and O'Sullivan, the firm hired by the Board to
provide architectural and engineering services. The job for which Pfenninger was hired required excavating an
eight to nine-foot deep trench to install drainage piping underneath the field. When Pfenninger was awarded the
drainage contract, he agreed to supply labor and equipment. The contract required the Board to supply the
necessary materials, including the drainage pipe. According to the design specifications prepared by O'Sullivan,
Pfenninger was to be responsible for all safety precautions on the job, which included the placement and
maintenance of shoring and supports to prevent movement of the earth that might injure persons in or around the
work area.
The design plans further specified that O'Sullivan did not have field inspection responsibilities for the job
and that Pfenninger was responsible for the methods and means of construction. That notwithstanding, O'Sullivan's
project manager, Ken Quabeck, communicated with Pfenninger on several occasions after the project began.
Although he once told Pfenninger that he would have to erect safety fencing around the excavation for the students'
protection, there was no evidence that he ever looked into the trench or was aware that Pfenninger was not using
bracing or shoring. At some point, O'Sullivan became aware that Pfenninger was having difficulty completing the
excavation work due to inclement weather and soil conditions. That notwithstanding, it frequently requested that
the project be completed as soon as possible.
During the course of the drainage project, the Board's representative, Barry Imboden, visited the worksite
on a daily basis. That notwithstanding, he never saw the trench completely exposed because Pfenninger backfilled
completed sections of the trench with gravel before moving on the next section.
The Board experienced some difficulty in procuring the correct drainage pipe. O'Sullivan's design
specifications called for perforated, corrugated pipe to be installed in the trench. Perforated pipe would have holes
in it, which would allow water to flow freely in and out of the pipe. Corrugated pipe would have alternating larger
and smaller diameters to allow for flexibility, which would allow the pipe to be connected on the surface and then
lowered into the trench. The non-corrugated pipe is solid and requires a person to enter the trench to connect two or
more sections. Pfenninger rejected the pipes. A subsequent attempt by the Board to place a second order for the
specified pipes resulted in the delivery of pipes that were perforated, but not corrugated. That notwithstanding, and
under pressure by the Board to complete the project before the start of the school year, Pfenninger proceeded to
install the non-corrugated pipes. Because the pipes were not corrugated, he was required to enter the trench to
connect sections of the pipe.
On August 24, 1994, while Pfenninger was working in the trench, the wall suddenly caved in and killed
him. The walls were not braced or shored at the time of the accident, as required by the contract. Nearly two years
later, plaintiff filed a wrongful death action. Thereafter, because of the absence of any written agreements between
the Board and O'Sullivan setting forth their respective duties and obligations on the job Pfenninger was hired to
complete, plaintiff filed a motion seeking to expand the scope of discovery to include other construction projects at
the school in progress around the time of the trench collapse. Plaintiff contended below that evidence of
supervisory responsibilities of the defendants on the related projects would lead a jury to infer that they had a
greater managerial role in Pfenninger's project than they acknowledged, and a concomitant duty of care. The trial
court denied that request, concluding that expanding discovery would be unduly burdensome and was not
reasonably calculated to lead to admissible evidence.
Thereafter, plaintiff filed a motion for summary judgment seeking to impose a duty of care on the Board
and on O'Sullivan, both of whom filed cross-motions for summary judgment, arguing that they owed Pfenninger no
duty of care. The trial court granted summary judgment for the defendants and dismissed the complaint. Plaintiff
appealed, challenging the discovery and summary judgment rulings. The Appellate Division reversed the summary
judgment ruling, concluding that the defendants each owed Pfenninger a duty of care. However, it affirmed the trial
judge's order denying expanded discovery, finding that plaintiff's contentions in that respect were without merit and
that the trial court had not abused its discretion.
The Supreme Court granted the Board's and O'Sullivan's separate petitions for certification seeking review
of the Appellate Division's ruling on the duty of care issue.
HELD: The trial court abused its discretion in denying the decedent's widow's request to expand discovery to
allow her to discover other documents concerning the architect's responsibility to the school board/landowner on
related construction projects; and a reasonable jury could find that the school board/landowner's failure to supply
decedent with the correct construction materials constituted a breach of its contractual duty and of its duty of care
and that its failure was a proximate cause of the decedent's death.
1. Plaintiff was entitled to attempt to discover evidence concerning related construction projects involving the
Board and O'Sullivan that might have a bearing on their general supervisory responsibilities on construction
projects then in progress on the Board's property. Thus, on remand, the trial court shall permit plaintiff, through
appropriate discovery, to attempt to elicit information concerning the defendants' responsibilities on those related
projects. (pp. 4-7)
2. Whether a duty of care exists is ultimately a question of fairness and involves the weighing of the relationship of
the parties, the nature of the risk, and the public interest in the proposed solution. The scope of a duty owed by a
defendant is a matter of law. (pp. 11-13)
3. In a contractual relationship, an individual may be liable in tort if he or she undertakes, gratuitously or for
consideration, to render services to another that he should recognize as necessary for the protection of the other's
person or things. (p. 13)
4. O'Sullivan's knowledge that perforated drain pipe could be installed from above the ground can be imputed to
the Board because the record demonstrates that O'Sullivan was the Board's agent and presided over the Board's
three-phase project to renovate the athletic fields. (p. 14)
5. A reasonable jury could find that the Board's failure to supply the correct pipe to Pfenninger not only constituted
a breach of its contractual duty, but also a breach of its duty of care to provide the pipe specified in O'Sullivan's
drawings and that its failure was a proximate cause of Pfenninger's death. (pp. 14-15)
6. Pfenninger's own possible negligence in failing to brace or shore the walls of the trench as required by the
contract also may be considered by a jury in apportioning negligence. (pp. 15-16)
7. As modified, the judgment of the Appellate Division is affirmed and the matter is remanded to the Law Division
for trial on plaintiff's claim that the Board's negligence in providing Pfenninger with nonconforming pipe was a
proximate cause of his death. The Law Division is also ordered to provide plaintiff with further discovery relating
to her claim that the defendants negligently supervised Pfenninger's company in the excavation and piping of the
trench, without prejudice to defendants' right to renew their motion for summary judgement on the issue of
negligent supervision at the conclusion of such discovery. (p. 16)
As modified, the judgment of the Appellate Division is AFFIRMED. The matter is REMANDED to the
Law Division for proceedings consistent with the Court's opinion.
JUSTICE COLEMAN has filed a separate dissenting opinion in which JUSTICES VERNIERO and
LaVECCHIA join. Justice Coleman believed that the Court committed grievous error by reopening discovery even
though neither party raised that issue before the Court (plaintiff had not filed a cross-petition to challenge the
Appellate Division's affirmance of the trial court's denial of her motion to expand discovery). Justice Coleman
further concluded that the undisputed facts of this case disclosed that the Board's failure to supply Pfenninger with
non-corrugated pipe did not proximately cause his death.
CHIEF JUSTICE PORITZ and JUSTICES STEIN, LONG and ZAZZALI join in the Court's
opinion. JUSTICE COLEMAN has filed a separate dissenting opinion in which JUSTICES VERNIERO and
LaVECCHIA join.
SUPREME COURT OF NEW JERSEY
A-73/
128 September Term 1999
LISA PFENNINGER, Executrix of
the Estate of MATTHEW
PFENNINGER, deceased,
Plaintiff-Respondent,
v.
HUNTERDON CENTRAL REGIONAL
HIGH SCHOOL, HUNTERDON
CENTRAL REGIONAL HIGH SCHOOL
DISTRICT BOARD OF EDUCATION,
HUNTERDON COUNTY, A.J.
O'SULLIVAN ARCHITECTS, ANDREW
J. O'SULLIVAN, C.J.
O'SULLIVAN, C.J. OSTERGAARD,
JOHN STANA, BARRY IMBOWDIN
and KENNETH R. QUABECK,
Defendants-Appellants,
and
HUNTERDON COUNTY SOIL
CONSERVATION, RARITAN
TOWNSHIP, STATE OF NEW
JERSEY, FRED CAPPOLA, MARK
SYMANCEK, AARON PLUMBING,
JOHN DOES 1-10 (said names
being fictitious and RICHARD
ROES 1-10 (said names being
fictitious),
Defendants.
Argued September 26, 2000 -- Decided March 13, 2001
On certification to the Superior Court,
Appellate Division.
John H. King argued the cause for appellants
A.J. O'Sullivan Architects, Andrew J.
O'Sullivan, C.J. O'Sullivan, Kenneth R.
Quabeck and C.J. Ostergaard (Marshall,
Dennehy, Warner, Coleman & Goggin,
attorneys; Mr. King and John H. Osorio, of
counsel).
Robert A. McLarty, Jr., argued the cause for
appellants Hunterdon Central Regional High
School, Hunterdon Central Regional High
School District Board of Education,
Hunterdon County, John Stana and Barry
Imbowdin (Romando, Astorino & McLarty,
attorneys).
Victor A. Rotolo argued the cause for
respondent (Mr. Rotolo, attorney; Michael F.
Midlige and Matthew F. Richter, on the
brief).
Arthur Bergman submitted a brief on behalf
of amicus curiae, Consulting Engineers
Council of New Jersey (Sokol, Behot &
Fiorenzo, attorneys).
PER CURIAM
This wrongful death action was instituted to recover damages
resulting from the death of twenty-nine-year-old Matthew
Pfenninger who was killed when an eight-to-nine-foot-deep trench
collapsed on top of him while he was installing drainage pipe.
The appeal presents three primary issues. The first issue is
whether the landowner, Hunterdon Central Regional High School
District Board of Education (Board) and the architect, A.J.
O'Sullivan Architects, P.A. (O'Sullivan), breached a duty of care
to Pfenninger arising out of a responsibility to supervise
Pfenninger's company in the excavation and piping of the trench.
The second issue is whether the trial court abused its discretion
in denying plaintiff's requests for discovery of other documents
involving O'Sullivan's responsibility to the Board on related
construction projects.See footnote 11 The third issue concerns whether the
Board breached its duty to Pfenninger in negligently supplying
Pfenninger with nonconforming drainage pipe that required his
entry into the trench to connect it.
I
The material facts concerning the claim that the Board and
O'Sullivan breached a duty of care to Pfenninger arising out of
their responsibility to supervise Pfenninger's company in the
excavation and piping of the trench are set forth in the
Appellate Division's opinion reported at _____ N.J. Super. ___,
___-___ (2001)(slip op. at 3-10), as well as in Justice Coleman's
dissenting opinion. Post at ___-___ (slip op. at ___-___). We
incorporate the relevant facts by reference. A majority of the
Court is substantially in agreement with Justice Coleman's
conclusion that, based on the present record, plaintiff has not
established that either the Board or O'Sullivan breached a duty
of care to Pfenninger because of their failure to supervise
Pfenninger's company in the excavation and piping of the trench.
In that respect we disagree with the Appellate Division's
disposition, that court having found a triable issue of fact on
the issue of negligent supervision.
Nevertheless, although we modify the Appellate Division's
disposition, we affirm its judgment remanding the negligent
supervision claim to the Law Division for further proceedings
based on our view that the trial court abused its discretion in
denying plaintiff's request for further discovery. As we
understand the record, plaintiff requested a number of documents
from O'Sullivan and the Board. The trial court upheld
defendants' refusal to supply those documents on the ground that
plaintiff's discovery request was “unduly burdensome, overly
broad, and not reasonably calculated to lead to admissible
evidence.” Among the items plaintiff sought were the following:
Any and all records, notes, correspondence,
plans, drawings, sketches, bids, requests for
bids, work orders, invoices, or documents of
any kind concerning projects involving A.J.
O'Sullivan Architects at the Hunterdon
Central Regional High School for the period
of January 1, 1993 through January 1, 1995,
including but not limited to the fountain and
scoreboard projects.
According to plaintiff, that information was necessary because
the initial discovery did not uncover evidence of a written
contract between the Board and O'Sullivan setting forth their
respective duties and obligations on the job Pfenninger was hired
to complete. Thus, evidence of the supervisory responsibilities
of the Board and O'Sullivan on the related projects could lead a
jury to infer that they had a greater managerial role in
Pfenninger's project than they acknowledged, and a concomitant
duty of care.
Further, that evidence would be critical in assessing the
verity of the position advanced by O'Sullivan and the Board that
neither was responsible for supervising Pfenninger when he dug
the trench and that no one, in fact, oversaw that job. That
evidence also may provide an important link to plaintiff's
expert's opinions that concluded that the Board and O'Sullivan
“were engaged in coordination of the work being done” by
Pfenninger; that both were acting as “general contractor/project
manager;” and that O'Sullivan and the Board “fail[ed] . . . to
exercise due care in their joint and separate obligations to
jobsite workers.”
In our view, both the Law Division and the Appellate
Division erred in their disposition of the discovery issue.
Plaintiff was entitled to attempt to discover evidence concerning
related construction projects involving the Board and O'Sullivan
that might have a bearing on O'Sullivan's and the Board's general
supervisory responsibilities on construction projects then in
progress on the Board's properties. See In re Liquidation of
Integrity Ins. Co.,
165 N.J. 75, 82 (2000)(noting that parties
may obtain discovery regarding any non-privileged matter that is
relevant to subject of pending action or is reasonably calculated
to lead to discovery of admissible evidence). Accordingly, on
remand, the trial court shall permit plaintiff, through
appropriate discovery requests, see R. 4:10-1, to attempt to
elicit information concerning O'Sullivan's and the Board's
responsibilities on those related projects. The trial court may
exercise its discretion, consistently with the views expressed in
this opinion, concerning the proper scope and extent of such
discovery. We intimate no view whatsoever on whether the
documents and information produced in the course of such
discovery will lead to evidence establishing a claim of negligent
supervision on the part of the Board or O'Sullivan that will
survive summary judgment. Our remand to the trial court for
further discovery is without prejudice to defendants' right to
renew their motion for summary judgment when that discovery has
been completed.
II
We address separately and in detail plaintiff's claim that
the Board's negligence in providing Pfenninger with nonconforming
pipe was a proximate cause of his death.
Pfenninger was the owner of Countywide Excavating Company
(Countywide) and he contracted with the Board to install a
drainage remediation system for the Hunterdon Central Regional
High School's varsity baseball and soccer/lacrosse fields. The
installation of the drainage pipe was the last phase of a three-
phase construction project to improve the high school's athletic
fields.
Under the terms of Pfenninger's agreement with the Board and
O'Sullivan, the Board was required to supply Pfenninger with the
materials to complete the project. Pursuant to the agreement,
Pfenninger wrote to the Board to request the following pipe:
“495' of 6" poly pipe . . . 730' of 8" poly pipe . . . (20) 6"-4"
T . . . [and] (20) 4" caps.” The specifications for the pipe
were set forth initially in O'Sullivan's design specifications
and drawings of the field drainage project, which called for
“perforated 6" or 8" corrugated polyethylene plastic underdrain
pipe w/ filter fabric stock.” (Emphasis added).
Corrugated polyethylene pipe is a plastic flexible pipe that
is available in long lengths. When the pipe is perforated, the
holes in the pipe allow water to enter and escape the pipe.
Perforated corrugated polyethylene pipe is commonly used as
drainage piping because a contractor can install the pipe from
the outside of an excavation trench without entering it. Because
the pipe is flexible, as one end of the pipe is laid down in the
trench the other end can remain out of the trench for connection.
At his deposition, Andrew O'Sullivan, president of O'Sullivan,
confirmed that the plans and specifications for the project
required perforated and corrugated polyethylene pipe. He
described the design specifications in the following exchange:
Q: Is any type of pipe[] specified to be
used as the drainage piping?
A: Perforated.
Q: You are reading from typical trench
detail.
A: Perforated six-inch or eight-inch
corrugated polyethylene plastic on the drain
pipe would fill the fabric sock.
Q: What is “perforated pipe?”
A: It means it has holes in it to allow
water to enter or escape, whatever.
Q: What is corrugated pipe?
A: Corrugated pipe is pipe that has
alternating larger/smaller diameters so it is
flexible.
Q: Okay. That is my next question. Is
corrugated perforated pipe flexible?
A: Yes.
Q: By definition?
A: Pretty much, yes.
Q: What is polyethylene pipe?
A: It is a plastic pipe.
O'Sullivan was then asked about how that pipe is assembled:
Q: And you understood when you created these
plans, if I understand your testimony
correctly, that the pipe could have been
assembled on the surface and put into the
trench?
This perforated corrugated polyethylene pipe?
A: It could have, sure.
The Board first ordered the pipe from Aaron & Company
(Aaron), which erroneously shipped thirteen-foot lengths of six-
and eight-inch non-perforated PVC pipe instead of perforated
corrugated polyethylene pipe. PVC pipe is a rigid pipe made in
shorter lengths, and requires an individual who is installing the
pipe to connect the pipes in the trench. Pfenninger discussed
the nonconforming shipment with Barry Imbowdin, the high school's
supervisor of grounds and maintenance, and Imbowdin agreed that
the pipe was “wrong” and should be exchanged for the correct
pipe. Thereafter, Imbowdin called Aaron and told them that
Pfenninger received the wrong pipe and needed an exchange.
However, Aaron never sent Pfenninger a complete order of
conforming pipe.See footnote 22
On August 9, 1994, the Board ordered the pipe required for
the job from a different supplier, Modern Concrete Septic Tank
Co. (Modern). Two days later, Modern sent forty-seven ten-foot
lengths of six-inch pipe and thirty-seven twenty-foot lengths of
eight-inch pipe. The eight-inch pipe conformed to the
specifications because it was perforated, corrugated, and
flexible. However, the six-inch pipe, although perforated, did
not conform because it was not corrugated or flexible. Under
pressure from the Board to complete the project before the start
of the school year, Pfenninger decided to use the nonconforming
pipe and entered the trench to connect the sections of pipe.
Robert Shinkle who worked with Pfenninger on the job site stated
that the pipe was rigid and had to be connected “every 10-feet or
so.” Similarly, Lisa Pfenninger, Pfenninger's widow, stated that
the PVC pipe was not flexible, “difficult to connect,” and
required Pfenninger to enter the trench. According to David
Brong, Pfenninger's employee who witnessed the accident,
Pfenninger was connecting the non-conforming ten-foot long six-
inch pipe in the trench when the trench collapsed.
“Negligence is conduct which falls below the standard
established by law for the protection of others against an
unreasonable risk of harm.” Restatement (Second) of Torts § 282
(1965). A person acts negligently when he or she does not take
reasonable precautions to prevent causing harm to another. Id.
§ 284. To determine whether a defendant's conduct is negligent,
we consider what a “prudent man” would have done in the
defendant's circumstances. Weinberg v. Dinger,
106 N.J. 469, 484
(1987). In addition to showing that a defendant failed to act
with reasonable care, a plaintiff must show that a defendant owed
the injured party a duty of care. Kelly v. Gwinnell,
96 N.J. 538, 548 (1984). Traditionally, courts have determined the
circumstances under which a defendant owes a legal duty to
another. Carvalho v. Toll Bros. & Developers,
143 N.J. 565, 572
(1996). Similarly, the scope of the duty owed is a matter of
law. Kelly, supra, 96 N.J. at 552.
We recognize that a court should not treat questions of duty
in a conclusory fashion because “'whether a duty exists is
ultimately a question of fairness. The inquiry involves a
weighing of the relationship of the parties, the nature of the
risk, and the public interest in the proposed solution.'” Id. at
544 (quoting Goldberg v. Housing Auth. of Newark,
38 N.J. 578,
583 (1962)); see Hopkins v. Fox & Lazo Realtors,
132 N.J. 426,
439 (1993); see also Rappaport v. Nichols,
31 N.J. 188, 205
(1959) (stating that “policy considerations and the balancing of
conflicting interests are the truly vital factors in the molding
and application of the common law principles of negligence”);
Wytupeck v. Camden,
25 N.J. 450, 462 (1957) (concluding that
“duty must of necessity adjust to the changing social relations
and exigencies and man's relation to his fellows”). That
weighing process is “fact-specific and principled; it must lead
to solutions that properly and fairly resolve the specific case
and generate intelligible and sensible rules to govern future
conduct.” Hopkins, supra, 132 N.J. at 439.
The common law recognizes the differences between civil
actions for breach of contract and for tort. “Tort obligations
are [] obligations that are imposed by law on policy
considerations to avoid some kind of loss to others. They are
obligations imposed apart from and independent of promises made
and therefore apart from any manifested intention of parties to a
contract or other bargaining transaction.” W. Page Keeton et
al., Prosser and Keeton on the Law of Torts § 92, at 656 (5th ed.
1984). Thus, “if a relation exists which would give rise to a
legal duty without enforcing the contract promise itself, the
tort action will lie, otherwise not.” William L. Prosser,
Handbook of the Law of Torts § 33, at 205 (1st ed. 1941).
Thus, in a contractual relationship, an individual may be
liable in tort if he or she undertakes “gratuitously or for
consideration, to render services to another which he should
recognize as necessary for the protection of the other's person
or things.” Restatement (Second) of Torts § 323 (1965). In this
case, the Board and Pfenninger entered into a contract for the
installation of a drainage remediation system for Hunterdon High
School's baseball and soccer/lacrosse fields. As part of that
contract, the Board was required to provide Pfenninger with
perforated corrugated polyethylene pipe. Although the record is
silent on whether the Board knew the purpose for the perforated
corrugated polyethylene pipe, the record demonstrates that
O'Sullivan, the project's architect, knew that that specific pipe
could be installed above ground and without having someone enter
the trench. Therefore, O'Sullivan's knowledge can be imputed to
the Board because the record demonstrates that O'Sullivan was the
Board's agent and presided over the Board's three-phase project
to renovate Hunterdon High School's athletic fields. See
Handleman v. Cox,
39 N.J. 95, 104 (1963) (stating that “it is
well settled that a principal is charged with the knowledge of
his agent or servant respecting matters lying within the scope of
the duties, activities, and responsibilities entrusted to him by
the principal”) (citations omitted).
Acting within its scope of authority, O'Sullivan not only
prepared the plans and specifications for the field drainage
project, but it solicited bids from prospective contractors and
made recommendations to the Board. Accordingly, a reasonable
jury could find that the Board's failure to supply the correct
pipe to Pfenninger not only constituted a breach of the Board's
contractual duty, but also a breach of the Board's duty of care
to provide the pipe specified in O'Sullivan's drawings that would
diminish significantly Pfenninger's risk of harm.
A jury also could find that the Board's failure to supply
Pfenninger with a complete set of perforated corrugated
polyethylene pipe was a proximate cause of Pfenninger's death.
In tort cases “[l]iability depends not only on the breach of a
standard of care but also on a proximate causal relationship
between the breach of the duty of care and resultant losses.”
People Exp. Airlines, Inc. v. Consolidated Rail Corp.,
100 N.J. 246, 264 (1985). Our Court has defined proximate cause as “that
combination of 'logic, common sense, justice, policy and
precedent' that fixes a point in a chain of events, some
foreseeable and some unforeseeable, beyond which the law will bar
recovery.” Ibid. (quoting Caputzal v. Lindsay Co.,
48 N.J. 69,
77-78 (1966)). Because the Board failed to supply Pfenninger
with flexible, perforated corrugated polyethylene pipe that could
be assembled out of the trench, Pfenninger was required to enter
the trench to install the non-flexible pipe. Accordingly, a
reasonable jury could find that the Board's delivery of rigid,
non-flexible pipe created a foreseeable risk of harm to
Pfenninger that was not so remote as to bar recovery.
We acknowledge that the record suggests that Pfenninger may
have been negligent in not bracing or shoring the walls of the
trench as required by the contract. Therefore, if a jury found
that the Board and Pfenninger were both negligent and that each
of their respective negligent conduct constituted a proximate
cause of the accident, then the jury would evaluate their conduct
and apportion fault accordingly.
As modified, the judgment of the Appellate Division is
affirmed. The matter is remanded to the Law Division for trial
on plaintiff's claim that the Board's negligence in providing
Pfenninger with nonconforming pipe was a proximate cause of his
death. The Law Division is also ordered to provide Pfenninger
with further discovery, consistent with this opinion, relating to
Pfenninger's claim that the Board and O'Sullivan negligently
supervised Pfenninger's company in the excavation and piping of
the trench, such further discovery to be without prejudice to
defendants' right to renew their motion for summary judgment on
the issue of negligent supervision after such discovery has been
provided.
So ordered.
CHIEF JUSTICE PORITZ and JUSTICES STEIN, LONG, and ZAZZALI
join in this opinion. JUSTICE COLEMAN filed a separate
dissenting opinion in which JUSTICES VERNIERO and LaVECCHIA join.
SUPREME COURT OF NEW JERSEY
A-73/
128 September Term 1999
LISA PFENNINGER, Executrix of
the Estate of MATTHEW
PFENNINGER, deceased,
Plaintiff-Respondent,
v.
HUNTERDON CENTRAL REGIONAL
HIGH SCHOOL, HUNTERDON
CENTRAL REGIONAL HIGH SCHOOL
DISTRICT BOARD OF EDUCATION,
HUNTERDON COUNTY, A.J.
O'SULLIVAN ARCHITECTS, ANDREW
J. O'SULLIVAN, C.J.
O'SULLIVAN, C.J. OSTERGAARD,
JOHN STANA, BARRY IMBOWDIN
and KENNETH R. QUABECK,
Defendants-Appellants,
and
HUNTERDON COUNTY SOIL
CONSERVATION, RARITAN
TOWNSHIP, STATE OF NEW
JERSEY, FRED CAPPOLA, MARK
SYMANCEK, AARON PLUMBING,
JOHN DOES 1-10 (said names
being fictitious and RICHARD
ROES 1-10 (said names being
fictitious),
Defendants.
COLEMAN, J., dissenting.
I cannot join in the majority's opinion, which “give[s]
plaintiff yet another bite of this thoroughly-chewed apple, . . .
[because] [t]he route to that result converts us from the Court
of last resort, to some sort of super-rescue mission.” Whitfield
v. Blackwood,
101 N.J. 500, 500 (1986) (Clifford, J., concurring)
(citation omitted). The majority has concluded that the trial
judge abused his discretion in denying plaintiff's request for
expanded discovery, and therefore remands this case. The
Appellate Division rejected that claim. Yet, the majority's
opinion reopens the discovery even though neither party has
raised that issue before this Court. Ordinarily, this Court
refrains from ruling on issues not raised in a petition or cross-
petition for certification. In order to reopen the discovery,
the majority's opinion has reinstated the dismissed complaint.
Because I believe the majority has committed grievous error, I
dissent.
The present wrongful death cause of action was instituted by the decedent's spouse as the executrix of his estate. Prior to trial, defendants filed motions for summary judgment that were granted by the trial court. Consequently, I am compelled to accept plaintiff's version of the facts and give plaintiff the benefit of all favorable inferences. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995).
In 1994, Hunterdon Central Regional High School District Board of Education (“Board”) commenced several construction projects at Hunterdon High School, including a drainage system, an underground electrical system, a new scoreboard, and renovation of the school's existing fountain. Although the Board hired multiple contractors to perform the various projects, it did not retain a general contractor. Responsibility for coordinating and scheduling the projects was shared by the Board and A.J. O'Sullivan Architects, P.A. (“O'Sullivan”), an architectural firm hired by the Board to provide architectural and engineering services.
The project involved in the present litigation involved the installation of a drainage system for the varsity baseball field. That required excavating an eight to nine-foot deep trench to install drainage piping underneath the field. O'Sullivan contacted several excavating companies on the Board's behalf to solicit bids for the drainage project. The contract was ultimately awarded to Countywide Excavating, Inc. (“Countywide”), the owner and principal officer of which was the decedent, Matthew Pfenninger.
It was agreed that Countywide would supply labor and equipment and that the Board would supply the necessary materials, including the drainage pipe. According to the design specifications prepared by O'Sullivan, Countywide was “responsible for all safety precautions on the job.” The design specifications also stated:
The contractor shall furnish, place and maintain all sheeting, bracing, lagging, shoring and miscellaneous supports, as required to support and prevent movement of earth which could injure persons in or around the work areas, and/or endanger any adjacent structures, tanks or utilities. . . .
. . . All preventive safety measures shall be
in compliance with OSHASee footnote 33 and the requirements
of the local municipality and the owner.
The design plans further specified that O'Sullivan did “not have
field inspection responsibilities for the job” and that
Countywide was “responsible for the methods and means of
construction.”
The Board's representatives were John Stana, director of
plants and facilities, and Barry Imboden, supervisor of grounds
and maintenance. Although Stana was the self-acknowledged
liaison between the Board, O'Sullivan, and Countywide, he did not
visit the athletic field after Countywide commenced the
excavation project. Barry Imboden, on the other hand, was on
campus daily and recalls having at least two conversations with
Matthew Pfenninger after the project began. Imboden peered into
the trench on occasion, but never saw it in a fully exposed state
because Countywide “backfilled” completed sections of the trench
with gravel before moving on to the next section.
O'Sullivan appointed Ken Quabeck as its project manager.
Quabeck communicated with Countywide on several occasions after
the excavation began. For example, Quabeck instructed Countywide
that it would have to erect a temporary fence around the exposed
trench during the project for the students' safety. Quabeck may
have visited the excavation site once after the project
commenced, but there is no evidence that he looked into the
trench or was aware that Countywide was not using bracing or
shoring. There is evidence that shortly before the trench
collapsed O'Sullivan was aware that Countywide was having
difficulty completing the excavation work due to inclement
weather, machinery problems, and soil conditions. O'Sullivan
frequently requested that the project commence and be completed
as soon as possible.
The Board experienced some difficulty procuring the correct
drainage pipe. O'Sullivan's design specifications called for
perforated, corrugated pipe to be installed in the trench.
Perforated pipe has holes in it to allow water to flow freely in
and out of the pipe; corrugated pipe has alternating larger and
smaller diameters to allow for flexibility. One advantage of
corrugated pipe over non-corrugated pipe is that sections of
corrugated pipe can be connected on the surface and then lowered
into a trench. Non-corrugated pipe, on the other hand, is solid
and requires a person to enter the trench to connect two or more
sections.
The first set of pipes ordered by the Board from Aaron & Co.
was neither perforated nor corrugated. That may be due to the
fact that Countywide had supplied the Board with a written order
for materials that omitted any reference to perforated or
corrugated pipe. In any event, Matthew Pfenninger rejected the
pipes, although it is not clear whether he did so because they
were non-perforated, non-corrugated, or both. An employee at
Aaron & Co. recalls that Matthew Pfenninger returned the pipe
because it was not perforated. This corresponds with a
handwritten note on the purchase order indicating that the pipe
was not suitable for installation because it did not have holes.
A second order for pipes, this time placed by the Board with
the Modern Concrete Septic Tank Co., resulted in the delivery of
pipes that were perforated, but not corrugated. Notwithstanding
the fact that the pipes did not comply with the contract
specifications, Matthew Pfenninger proceeded to install the
second set of non-corrugated pipes. Because the pipes were non-
corrugated, Matthew Pfenninger was required to enter the trench
to connect sections of the pipe.
On August 24, 1994, Matthew Pfenninger was working in the
trench when the walls suddenly caved in and killed him. The
walls were not braced or shored at the time of the accident as
required by the contract.
Nearly two years later, Matthew Pfenninger's widow filed
this wrongful death action. After the lawsuit got underway,
plaintiff filed a motion seeking to expand the scope of discovery
to include other construction projects at the school in progress
around the time of the trench collapse. The motion judge denied
that request, concluding that expanding discovery would be unduly
burdensome and was not reasonably calculated to lead to
admissible evidence.
Thereafter, plaintiff moved for summary judgment seeking to
impose a duty of care on the Board and O'Sullivan. The Board and
O'Sullivan filed cross-motions for summary judgment, arguing that
they owed decedent no duty of care. The trial court granted
summary judgment for defendants and dismissed the complaint.
Plaintiff filed an appeal challenging the discovery and
summary judgment rulings. The Appellate Division reversed the
summary judgment ruling, concluding that the Board and O'Sullivan
each owed Matthew Pfenninger a duty of care. The Appellate
Division affirmed, however, the trial judge's order denying
plaintiff's request for expanded discovery, noting: “We have
considered the contentions raised in connection with these orders
and find them to be without merit and find no abuse of discretion
on the part of the motion judge.”
The Board and O'Sullivan filed separate petitions for
certification seeking review of the Appellate Division's ruling
on the duty of care issue. The Court granted both petitions.
165 N.J. 136 (2000);
163 N.J. 78 (2000). Plaintiff did not file
a cross-petition for certification with this Court.
At the outset of its opinion, the majority announces that one of the issues presented on appeal is “whether the trial court abused its discretion in denying plaintiff's request for discovery of other documents involving O'Sullivan's responsibility to the Board on related construction projects.” The majority is mistaken. Neither party has raised the discovery issue before this Court. Plaintiff was entitled to file a cross- petition for certification under Rule 2:2-5(b), but elected not to do so. Presumably, plaintiff was content to proceed to trial on the existing record. Not surprisingly, defendants' petitions for certification are directed only toward the Appellate Division's ruling on the question of whether they owed Pfenninger a duty of care. Consequently, whether the trial judge abused his discretion in denying plaintiff's expanded discovery request is not an issue properly before this Court.
As a general rule, the Court will not rule on issues that were not raised in the petition for certification. Hirsch v. New Jersey State Bd. of Med. Exam'rs, 128 N.J. 160, 161 (1992) (declining to rule on issue raised for first time after petition for certification was granted); Toms River Water Co. v. New Jersey Bd. of Pub. Util. Comm'rs, 82 N.J. 201, 206 n.5 (1980) (same); State v. Davis, 68 N.J. 69, 87 (1975) (Pashman, J., dissenting) (same). Likewise, the Court will not address issues raised by a respondent in the absence of a cross-petition for certification. State v. Oliver, 133 N.J. 141, 160 (1993) (refusing to address issue not raised by respondent in cross- petition for certification); Skulski v. Nolan, 68 N.J. 179, 208 (1975) (restating the Court's reluctance to rule on issues raised by respondents in absence of cross-petition for certification).
I acknowledge that the Court has the power under Rule 2:12- 11 to address issues not raised in a petition for certification, but we have traditionally exercised that authority sparingly. In State Farm Mutual Automobile Insurance Co. v. Zurich American Insurance Co., 62 N.J. 155 (1973), for example, the plaintiff filed an action seeking a declaration of insurance coverage on two separate insurance policies following an auto accident. Id. at 161. The trial judge ruled that the driver of the automobile was not covered under either of the two policies and the Appellate Division affirmed. Id. at 162-64. The defendants then filed a notice of petition for certification seeking review of the “final judgment” of the Appellate Division. Id. at 161. The actual petition, however, focused exclusively on the construction given to one of the policies by the Appellate Division. Ibid.
At oral argument, a dispute arose “as to whether the liability of both insurers was properly before th[e] Court.” Ibid. The Court instructed the parties to argue the merits of assigning liability under either policy, but reserved decision on whether the liability of both insurers was properly before the Court until both parties had an opportunity to submit supplemental briefs on that question. Ibid.
The Court ultimately decided to determine the liability of both insurers, but it gave explicit reasons for doing so. Id. at 165. The Court explained that deciding the liability of the second insurer was warranted because: (1) “the interests of a fair resolution of the entire controversy” militated in favor of deciding the second insurer's liability; (2) “one of the issues in relation to [the first insurer's] liability [was] identical with that involved under the [second insurer's] policy; and (3) the plaintiff was not prejudiced because it had been served with the notice of petition and had “been afforded full opportunity to be heard on the merits.” Ibid.
Applying the State Farm factors to the present case leads to the inescapable conclusion that this Court should refrain from deciding whether plaintiff is entitled to further discovery. Whether the Board and O'Sullivan owed Pfenninger a duty of care is entirely distinct from whether plaintiff is entitled to expanded discovery. In other words, they do not share an “identical issue.” More importantly, the majority's decision to remand for further discovery unfairly prejudices the Board and O'Sullivan. In State Farm, a dispute arose at oral argument whether the liability of the second insurer was properly before the Court. The Court allowed the parties to argue the merits of the issue and directed the parties to submit supplemental briefs addressing whether the Court should rule on the second insurer's liability. Here, the issue of whether plaintiff is entitled to further discovery is raised for the first time before this Court in the majority's opinion. Although raised in and decided by the Appellate Division, the issue was not raised in a cross-petition for certification. Nor did plaintiff contend at oral argument before this Court that she was entitled to further discovery. To the contrary, plaintiff's attorney stated that he was “comfortable with the Appellate Division's decision” on the discovery issue. Furthermore, when all parties moved for summary judgment, each represented to the Court that the parties believed that no further discovery was required before ruling on the legal question of whether a duty was owed by the Board and O'Sullivan.
In conclusion, this is not one of the rare cases in which we are required in the interest of justice to address an issue that the parties did not raise before us. Therefore, I do not agree with the majority that the Court must decide whether the trial judge abused his discretion in denying plaintiff's request for further discovery.
The primary issue raised is whether the Board and O'Sullivan each owed Matthew Pfenninger a duty of care to protect against the hazards of excavating a trench. The Board argues that it was merely the landowner, and as such, had no duty to guard against the ordinary risks of harm associated with the work a contractor was hired to perform. The Board contends that, although it coordinated the various construction projects, it did not exercise control over the performance of the work.
O'Sullivan argues that the Appellate Division failed to properly decide whether a duty existed as a matter of law. That argument is based largely on the court's statement that “there was enough in the summary judgment record to impose a duty of care sufficient to survive summary judgment.” O'Sullivan maintains that a duty could be imposed upon it, absent a contractual obligation for safety, only if it had knowledge of an increased risk of harm beyond that entailed in performing the job.
The determination of whether a duty of care exists is a legal matter to be decided by the court and not the jury. Clohesy v. Food Circus Supermarkets, Inc., 149 N.J. 496, 502 (1997). Whether such a duty exists is a question of public policy and fairness. Kuzmicz v. Ivy Hill Park Apartments, Inc., 147 N.J. 510, 515 (1997). A critical ingredient in the duty analysis is the foreseeability of the risk of injury. Carvalho v. Toll Bros. and Developers, 143 N.J. 565, 572 (1996). The foreseeability component entails the balancing of 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 (1993).
The exception to the general rule, however, is not absolute. A landowner owes a duty to an independent contractor and its employees to protect against the hazards of contracted work in three situations: (a) where the landowner participates in, actively interferes with, or exercises authority over the manner and means in which the contracted work is performed; (b) where the landowner hires an incompetent contractor; and (c) where the contracted work is inherently dangerous. Majestic Realty Assocs. v. Toti Contracting Co., 30 N.J. 425, 431 (1959). In the present case, plaintiff only relies on exception (a), arguing that the Board controlled the means and methods of the excavation project and interfered with Countywide's work by furnishing the incorrect pipe. It is against this jurisprudential backdrop that we consider plaintiff's claim against the Board.
The experts in this case agree that the trench collapsed because the structural integrity of its walls was compromised by a high degree of moisture in the soil. Several days of rain and the field's high water table resulted in standing water in the trench. In light of those facts, we have little difficulty concluding that Matthew Pfenninger's death was precipitated by the precise condition that he was hired to correct, namely, the substandard drainage characteristics of the athletic field. Therefore, the Board did not owe Matthew Pfenninger a duty of care unless it participated in or actively interfered with the excavation project.
It is undisputed that the Board did not retain the contractual authority to dictate the means by which Countywide was to install the drainage system. The design specifications state in the clearest of terms that Countywide was “responsible for the methods and means of construction” and that the “drawings are intended only as an outline for construction.” The unmistakable import of this contractual language is that the Board and Countywide entered into a contractee-independent contractor relationship. As the Board had “'no right of control over the manner in which the work [was] to be done, it is to be regarded as the contractor's own enterprise, and [Countywide], rather than the [Board] is the proper party to be charged with the responsibility for preventing the risk.'” Baldasarre, supra, 132 N.J. at 291 (quoting W. Page Keeton et al., Prosser & Keeton on the Law of Torts § 71 (5th ed. 1984)).
I acknowledge that the Board reserved, under the design specifications, “the right to designate the order in which the Contractor shall proceed with any and all portions of the work.” Under the first Majestic Realty exception urged here, if the landowner-contractee “gives directions for the work, . . . or retains control over any part of it, he is required to exercise reasonable care for the protection of others; and he must likewise interfere to put a stop to any unnecessarily dangerous practices of which he becomes informed.” Mavrikidis v. Petullo, 153 N.J. 117, 134 (1998) (quoting Prosser & Keeton, supra, § 71 (footnotes omitted)). Nonetheless, landowners may retain a limited degree of supervisory control over an independent contractor without exposing themselves to tort liability. Id. at 135; Majestic Realty, supra, 30 N.J. at 431. The Board's ability to direct the order in which the work was to be performed “relate[d] to the result to be accomplished, not to the means of accomplishing it.” Majestic Realty, supra, 30 N.J. at 431.
The absence of contractual authority notwithstanding, it must be determined whether the Board participated in or actively interfered with the excavation project. Plaintiff argues that the Board participated in the project because its agents were physically present at the campus on a daily basis and occasionally conversed with Matthew Pfenninger. I disagree and conclude that such conduct does not exceed the scope of general supervisory powers permitted a landowner-contractee. There is no evidence of the Board's active participation in the excavation project. Just as a family may occasionally visit the lot where its new home is being built and indicate that something is not in accord with the contract without triggering a duty of care to the builders, so may a commercial landowner have its agents present on site without subjecting itself to a duty of care to the independent contractors or their employees. In both instances, the landowner-contractee is inspecting the progress of the work to ensure compliance with design specifications. The fact that the Board's agents were physically present on a daily basis whereas a family might only appear at the construction site once a week is a difference in degree, not in kind. A landowner- contractee's on-site presence, whether continual or seldom, does not equate to participation or interference. To impose liability upon the landowner, there must be evidence of physical control over the work site; mere superintendence to ensure that the contractor is abiding by the agreement does not suffice. “When the evidence is viewed in the light most favorable to plaintiff[] [the Board's] actions arose from a general supervisory power over the result to be accomplished rather than the means of that accomplishment.” Mavrikidis, supra, 153 N.J. at 136.
Relying on Wolczak v. National Electric Products Corp., 66 N.J. Super. 64 (App. Div. 1961), plaintiff further contends that the Board interfered with the project when it delivered the incorrect pipe to Countywide. This argument is not supported by the record. Although O'Sullivan's design specifications called for corrugated/perforated pipe, Countywide submitted a list of materials to the Board that only mentioned “poly” pipe without any reference to corrugation or perforation. Moreover, an employee from Aaron & Co., the plumbing supply company that delivered the first shipment of pipes, testified that Matthew Pfenninger returned the pipes because he needed pipe with “holes in it.” That statement is particularly telling because the first set of pipes was neither corrugated nor perforated, yet Matthew Pfenninger only complained about the lack of perforation. That may also explain why he did not reject the second set of pipes, which was perforated, but not corrugated. Because decedent treated the perforated pipes as an amendment to the specifications, not even he thought there was an interference with the project. He knew immediately that the non-corrugated pipes required entrance into the trench to connect them.
In Wolczak, supra, the plaintiff-subcontractor alleged that the landowner refused his request to erect a scaffold. Id. at 74. The plaintiff was subsequently injured when he fell from a ladder while drilling a hole in a steel beam. Id. at 69. I readily agree that the allegation set forth in Wolczak, if true, is evidence of “active interference” because the subcontractor and landowner in that case disagreed over the means and methods of the project, and the landowner insisted that his method be followed. The same cannot be said of the present case. There is no evidence in the record that Matthew Pfenninger requested, but was refused, corrugated pipe.
Although OSHA imposes a non-delegable duty on an “employer” to provide a safe workplace, the Board is exempt from complying with OSHA regulations governing workplace safety. 29 U.S.C.A. §652(5) (“The term 'employer' . . . does not include . . . [a] political subdivision of a State.”); see also 29 C.F.R. § 1975.5 (e)(1) (listing municipal public school board as example of entity not covered by OSHA regulations). Furthermore, the Court recently held that even when OSHA regulations are applicable and have been violated, such a violation does not establish a per se breach of duty of care. Alloway v. Bradlees, Inc., 157 N.J. 221, 236 (1999).
To summarize, the Board did not owe Matthew Pfenninger a duty of care because the accident occurred as a result of the operational hazards that are inherent to excavating a trench. I also find that the first Majestic Realty exception has not been met because the Board did not participate in, or actively interfere with, the excavation project. Absent a duty of care, the Board is absolved of liability for Matthew Pfenninger's death.
The decedent's widow sued