On appeal from the Superior Court of New Jersey, Law Division, Morris County).
King, Deighan and Bilder. The opinion of the court was delivered by King, P.J.A.D.
This case requires us to interpret N.J.S.A. 2A:14-1.1, adopted in 1967, the ten-year statute of repose in favor of contractors, engineers and architects who have made improvements to real property, in a situation where design and construction are both undertaken by the same entity. The defect alleged here to have caused plaintiff's injury originated during the design stage. There is no claim of defect arising in the construction phase, other than adherence to the allegedly defective design. Both the design and construction were done by the corporate defendant, Engineers, Inc. (EI), through its agents and employees. The design was created more than ten years before the critical date, the filing of the complaint, which commenced this action. The construction of the project was completed less than ten years from the date of filing of the complaint. We must decide if completion of the design stage alone, when the defect originated beyond the ten-year period, is sufficient to immunize the contractor under a "design-build" contract.
This is the factual background. On March 17, 1980 plaintiff, Carolyn Welch, was an employee of the Knoll Pharmaceutical Company. She claims in her complaint, filed on March 8, 1982, that she "was walking on the pedestrian sidewalk area of the truck dock area" when she fell and was injured due to a "defective and dangerous condition." She alleged that defendant, Engineers, Inc., "was in the business of designing and constructing large commercial and industrial projects" and that
it "designed and constructed the truck dock area and pedestrian sidewalk at Knoll Pharmaceutical." She also sued William Godshall, "an architect who designed the truck dock area and pedestrian sidewalk, . . . [a] defective and dangerous condition."
Plaintiff was prepared to prove through an engineering expert that the truck dock was poorly designed because of its proximity to the sidewalk where plaintiff fell. The plaintiff's expert reported that "the layout of the truck door area . . . was defective" because "the space allowed for truck maneuvering . . . did not include sufficient apron maneuvering area." Because there was a pedestrian sidewalk alongside the roadway, trucks "riding up onto the sidewalk due to lack of maneuvering space could be expected to crack and otherwise harm the sidewalk." The plaintiff's expert concluded that a proper layout would have separated the pedestrian sidewalk from the paved access road and maneuvering area or made the maneuvering area larger "to accommodate the type of vehicle used for over-the-road trucking."
Defendant admits that it designed and built the sidewalk and truck dock area. Defendant contends that all design work was completed by March 11, 1971 and all construction work was substantially completed by July 17, 1972. A certificate of occupancy for the facility was issued on November 17, 1972. On the motion for summary judgment, defendant relied on the affidavit of its vice-president who said that "on March 11, 1971, E.I. issued the specifications for the construction of the Knoll Pharmaceutical Facility, Hanover Township, New Jersey. The said specifications included the specifications for the truck dock area and all pedestrian sidewalk areas, more particularly specified in plaintiff's complaint."
Defendant Godshall, an architect employed by defendant EI, designed the truck dock and sidewalk area. The specifications issued on March 11, 1971 were based on his design. Godshall personally obtained a summary judgment on the ground of the ten-year time-bar. There is no appeal from that judgment.
After the specifications were issued on March 11, 1971, defendant EI hired a subcontractor, Morreale Construction Company, to build the sidewalk. Morreale was not sued here because the plaintiff could not prove any construction defect. EI accepted the sidewalk construction and paid its subcontractor for the work. Clearly, EI acted as a developer, general contractor, architect and engineer on the project. EI applied for site-plan approval in June 1970 and thereafter undertook complete design and construction coordination and responsibility until final acceptance and occupancy. This is, in our understanding, a "design-build contract." See Mahony-Troast Constr. v. Supermarkets Gen'l, 189 N.J. Super. 325, 329 (App.Div.1983).
The Law Division judge granted summary judgment in favor of the defendant EI because the design was completed by its employee-engineer on March 11, 1971 -- more than ten years before the filing of the complaint on March 8, 1982. The judge found, and all parties appeared to agree, that EI's work on the project "was completed less than ten years prior to the institution of suit." This is true whether we accept EI's assertion of substantial completion on July 27, 1972 or the date of issuance of the certificate of occupancy on November 27, 1972. Summary judgment was granted to EI because the plaintiff was prepared to prove a design defect only. Plaintiff agreed that she could not prove a construction defect. The judge concluded "I think that pursuant to the statute, various aspects are severable" and granted the motion. All parties, including the judge, appear to have assumed that the sidewalk where plaintiff fell was constructed within the ten years before the complaint was filed. We cannot confirm this fact from the record before us but whether or not this is accurate is not critical ...