On appeal from the Superior Court, Law Division, Mercer County.
Before Judges Havey, Brochin and Cuff.
The opinion of the court was delivered by HAVEY, J.A.D.
Plaintiff's decedent, Francisco F. Carvalho, while working in a trench on a sewer installation site, was crushed to death when the trench collapsed. The central issue raised by this appeal is whether the engineer who supervised the job on behalf of the owner and who had no contract obligation to inspect for safety hazards, nevertheless owed decedent a duty to take some reasonable action to prevent decedent's injury when the engineer has actual knowledge of the dangerous condition of the trench. We conclude that such a duty exists and therefore reverse the summary judgment order entered in favor of the engineer, defendant Bergman Hatton Engineering Associates (Bergman). On defendant Toll Brothers' cross-appeal, we reverse the summary judgment orders requiring it to indemnify Bergman for the wrongful death claim asserted by plaintiff.
Bergman, defendant West Windsor Township's engineer since 1981, prepared design plans on behalf of the Township for the construction of a sewer line as part of the Assunpink Basin Sewerage Facilities. The Township hired Toll Brothers as its general contractor to install the sewer line. A "Facility Agreement" between the Township and Toll Brothers provides that the sewer facilities were to be constructed by Toll Brothers in accordance with the plans prepared by Bergman. Under the agreement
Bergman would have a full-time representative at the site "to ensure that the Work of TOLL is being performed in accordance" with the plans, specifications and contract documents. The agreement defines Bergman's supervisory role at the job site, including its right to demand improvement in "the contractor's work or rate of progress." However, "neither compliance with such order nor failure of [the engineer] to issue such orders shall relieve the Contractor from his obligation to secure the degree of safety . . . required by the contract. The Contractor alone shall be responsible for the safety, adequacy and efficiency of his plant, equipment and methods." The documents also incorporate by reference specifications of the New Jersey Construction Safety Code, N.J.A.C. 12:180, and regulations promulgated under the Occupational Safety and Health Act (OSHA), 29 U.S.C.A. §§ 651 to 678.
Under the agreement, Bergman reserves the right to inspect Toll Brothers' work and has the authority to reject it when it does not comply with the facility documents or plans and specifications. However, the agreement also provides that the engineer "shall not have control" over the construction means, methods, techniques, or "safety precautions" used by Toll Brothers in connection with the work. Further, Toll Brothers assumes sole responsibility for the construction means, methods and techniques, and for the "acts and omissions of its employees." It also agrees to "cause its employees, agents and subcontractors to cease the performance of the work at the direction of the Engineer."
Toll Brothers hired third-party defendant Jude Enterprises to perform the excavation work. Decedent, a Jude employee, was crushed to death when a thirteen-foot deep unshored trench collapsed at the job site. Bruce Stoneback, Bergman's site representative, was present at the site when the accident occurred. He testified at his deposition that he was aware trench boxes were routinely used at the project to protect workers from trench collapses. However, he also acknowledged that trench boxes were not being used on the date of the accident. He assumed that this
was so because such a device may have crushed a gas line and water main in the proximity of the trench. Stoneback had also observed water present in the general location of the trench that collapsed. According to Stoneback, the trench collapsed several times prior to the date of the accident. Approximately one week before the accident, Stoneback noted that the trench was unstable, water had pooled in the bottom of the trench, and the walls caved or slid onto the trench floor. He acknowledged that he knew an unshored trench of thirteen feet in depth could be dangerous and that he himself would not want to be in such a trench when it was in such a condition.
Plaintiff Cidalina Carvalho, decedent's wife, filed this wrongful death and survivorship action against Toll Brothers, Bergman and the Township. The complaint was dismissed against the Township because of plaintiff's noncompliance with the notice requirements under the New Jersey Tort Claims Act, N.J.S.A. 59:8-8. Bergman cross-claimed against Toll Brothers, and Toll Brothers third-partied Jude Enterprises. Plaintiff settled with Jude Enterprises and Toll Brothers.
Bergman moved for summary judgment, arguing that it owed no duty to decedent. The motion Judge agreed, reasoning that although the engineer may have had actual knowledge of the dangerous nature of the thirteen-foot trench, its duty was defined and limited by the contract terms under which Toll Brothers, not Bergman, had the sole responsibility to make safety inspections and to provide the necessary safeguards to protect workmen from dangerous conditions at the job site. Therefore, the Judge concluded, Bergman had no duty to warn plaintiff or the other job-site workmen of the unsafe condition in the trench.
To recover under a negligence theory, the defendant must first owe a duty to the plaintiff. Strachan v. John F. Kennedy Mem. Hosp., 109 N.J. 523, 529, 538 A.2d 346 (1988). "The question of whether a duty exists is a matter of law properly
decided by the court, not the jury . . . ." Wang v. Allstate Ins. Co., 125 N.J. 2, 15, 592 A.2d 527 (1991). The question is one of fairness and policy that "'involves identifying, weighing, and balancing 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.'" Carter Lincoln-Mercury, Inc. v. EMAR Group, Inc., 135 N.J. 182, 194, 638 A.2d 1288 (1994) (quoting Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439, 625 A.2d 1110 (1993)). Although reasonable foreseeability of harm is essential to the creation of a duty, "not all foreseeable risks give rise to duties." Dunphy v. Gregor, 136 N.J. 99, 108, 642 A.2d 372 (1994). The ability to foresee injury to a potential plaintiff "does not in itself establish the existence of a duty"; nevertheless, it is a crucial element in determining whether imposition of a duty is appropriate. Carter Lincoln-Mercury, Inc., 135 N.J. at 194. "Once the foreseeability of an injured party is established, we must decide whether considerations of fairness and policy warrant the imposition of a duty." Carter Lincoln-Mercury, Inc., 135 N.J. at 194-95.
We have found no New Jersey case deciding whether or not an engineer, contractually obligated to supervise a construction site on behalf of the owner, owes a duty to job-site workmen to protect them from injuries resulting from unsafe conditions. We addressed the issue of an engineer's duty in a different setting in Sykes v. Propane Power Corp., 224 N.J. Super. 686, 694, 541 A.2d 271 (App. Div. 1988), where a chemical recovery plant worker was killed when the facility exploded. Id. at 690. The engineer, who prepared plans to upgrade an industrial plant in order to meet State environmental regulations, was sued based on negligence "by placing his seal upon documents reflecting an unsafe and negligently developed chemical processing system." Id. at 692. We held that:
Although all engineers have a professional obligation to see that the work they do is accurate and in conformance with accepted standards of care, the duty to foresee and prevent a particular risk of harm from materializing should be
commensurate with the degree of responsibility which the engineer has ...