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E.A. Williams Inc. v. Russo Development Corp.

Decided: February 20, 1980.

E.A. WILLIAMS, INC., A CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
RUSSO DEVELOPMENT CORP., A CORPORATION OF THE STATE OF NEW JERSEY ET AL., DEFENDANTS, AND FRANK W. KOESTNER, SR., DEFENDANT-APPELLANT



On certification to the Superior Court, Appellate Division.

For affirmance -- Chief Justice Wilentz and Justices Sullivan, Pashman, Clifford, Schreiber, Handler and Pollock. For reversal -- None. The opinion of the Court was delivered by Handler, J. Sullivan, J. (concurring in result). Justice Pollock joins in this concurrence. Sullivan and Pollock, JJ., concurring in the result.

Handler

[82 NJ Page 161] The main question presented in this case is whether a surveyor, who has negligently prepared a survey map resulting in the mislocation of a building, is protected from liability under a New Jersey statute, L. 1967, c. 59, ยง 1, N.J.S.A. 2A:14-1.1. That statute provides that no action for damages "for any deficiency in the design, planning, supervision or construction of an improvement to real property" can be brought against "any person performing or furnishing the design, planning, supervision of construction or construction" more than ten years after the "performance or furnishing of such services and construction."

On February 14, 1974, plaintiff E. A. Williams, Inc., a corporation engaged in the foundry business ("Williams"), instituted suit against Frank W. Koestner, Sr. and Frank W. Koestner, Jr., both of whom are state-licensed engineers and surveyors, for damages allegedly caused by the Koestners' negligent preparation of surveys dealing with plaintiff's property on May 5, 1953 and February 4, 1954. Also joined as defendant was Frank W. Koestner Associates, a firm of which Koestner, Jr. is the president. It is undisputed that in 1953, Williams decided to relocate its foundry operations from Jersey City to Carlstadt. The corporation hired Koestner, Sr., who was then doing business as Frank W. Koestner, Sr., to prepare a survey of the premises acquired for the business and to delineate the exact location where a building should be constructed in order that it would be placed in the center of the property.

Koestner's first survey, dated May 5, 1953, specified the building site and indicated that a building constructed on this site would be approximately 75 feet from the northern boundary of plaintiff's property. Ground stakes were then placed according to the survey marking the exact construction site. While construction was in progress, Koestner, Sr. reexamined his earlier calculations and realized that the first survey was inaccurate. He therefore prepared a second survey dated February 4, 1954 which indicated that there existed only 55 feet between the building and the northern property line. This discovery did not require the repositioning of the building and construction proceeded as scheduled. Relying upon the survey which showed a distance of 55 feet between the building and the northern property line, plaintiff proceeded to pave the intervening area and installed mechanical overhead doors on the northern face of the building. These improvements were to provide access for trucks to deliver and unload materials for the foundry.

At the time these improvements were made, the land abutting plaintiff's lot to the north was vacant and undeveloped and it remained so for approximately 18 years during which time

plaintiff conducted its business without difficulty. In 1972, however, the adjoining property was purchased by Russo Development Corporation, which began to construct a warehouse. In August 1972, Larry Russo, the president of Russo Corporation, informed plaintiff that only 35 feet separated plaintiff's building from their common property line and told plaintiff to keep off his land.

Russo proved to be correct. The 1954 Koestner survey was inaccurate. While Koestner had marked the boundaries of plaintiff's land correctly on his survey, he erroneously designated the location of the building. As a result, there were 20 fewer feet or actually only 35 feet, between the building and the northern property line. The 35-foot distance separating plaintiff's building from the Russo property line did not, according to plaintiff's president, provide sufficient area for performing the delivery and unloading process. Plaintiff therefore was forced to construct another roadway at a different location in order to provide ingress and egress for vehicles, to pave another portion of its property, and to relocate the overhead mechanical doors and unloading facilities to another portion of its building. Plaintiff had expended $3,500 to construct the roadway and expected to spend another $3,500 for the overhead doors.

No one who testified knew precisely why Koestner, Sr. had made the error but everyone, including Koestner, Jr., acknowledged that an error had been made. Kenneth Job, a licensed engineer and land surveyor called as an expert witness by plaintiff, stated unequivocally that if Koestner had adhered to the standard generally followed in the surveying profession, the error would not have occurred. At the close of all the evidence, the trial court dismissed the claims asserted against Koestner, Jr. and Koestner Associates, rulings not here called into question, and submitted the case to the jury. The jury returned with a verdict in favor of plaintiff in the amount of $8,000. Koestner then filed a notice of appeal to the Appellate Division. In a brief unpublished per curiam opinion, the Appellate Division

concluded that there was no merit to any of the contentions raised on the appeal. This Court granted Koestner's petition for certification. 81 N.J. 42 (1979).

I

The primary issue on appeal is the applicability of N.J.S.A. 2A:14-1.1 and whether that statute constitutes a complete bar to any claim for damages attributable to the faulty surveys. Defendants' answer did not set up either this statute or the statute of limitations, N.J.S.A. 2A:14-1, as an affirmative defense to plaintiff's action. After the case had been pretried, however, defendants moved for leave to amend their answer to assert N.J.S.A. 2A:14-1.1 as a bar to plaintiff's suit. The trial judge treated defendants' motion as a motion for summary judgment concerning the applicability of N.J.S.A. 2A:14-1.1; he ruled that the statute was inapplicable and denied the motion for summary judgment. In his view, a surveyor merely indicates the boundaries of an individual's property or the place where a building will be constructed on that property; he is not engaged in the "design, planning, supervision of construction or construction" of any structure that is ultimately built on the land. Consequently, the judge concluded that surveyors were "not within the 'special class' of persons which [ N.J.S.A. 2A:14-1.1] was intended to protect."

The New Jersey statute is similar to legislation that has been enacted in some 28 jurisdictions. See Dooley, 2 Modern Tort Law 471 n. 3 (1977). It is designed to limit the time during which suit for particular damages claims may be brought against certain classes of persons, i.e., architects, engineers, and building contractors. See Comment, "Limitation of Action Statutes for Architects and Builders -- Blueprint for Non-action," 18 Catholic U.L.Rev. 361 (1969). Indeed, the precise language of N.J.S.A. 2A:14-1.1 derives in large part from a model ...


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