On appeal from the Superior Court of New Jersey, Law Division, Ocean County.
Approved for Publication August 10, 1995.
Before Judges Michels, Stern and Keefe. The opinion of the court was delivered by Stern, J.A.D.
The opinion of the court was delivered by: Stern
The opinion of the court was delivered by STERN, J.A.D.
Plaintiffs appeal from a judgment of no cause following a jury verdict and a denial of their post-verdict motions for judgment N.O.V. and new trial. *fn1
Milton E. Bradford and John E. Ware were employees of Agate Construction Company ("Agate"), which contracted with the Tuckerton Borough Municipal Utilities Authority ("TMUA") to replace and rehabilitate its sewer lines. Kupper Associates ("Kupper") was TMUA's engineer for the project.
It was undisputed that TMUA and Kupper knew of the presence of a poisonous gas, hydrogen sulfide, in the sewer system, but failed to disclose that fact to Agate. Under the contract and applicable regulations, Agate was responsible for the safety at the site and for having appropriate safety equipment for use by its employees. During the construction, however, Bradford was killed and Ware was seriously injured when they inhaled the gas during the course of their employment. Bradford's executrix and Ware filed separate complaints against Kupper and TMUA. Agate was made a third-party defendant in light of its contractual indemnification. *fn2
Plaintiffs asserted that Kupper and TMUA breached their duty to warn Agate of the existence of the poisonous gas. The jury found that Kupper had negligently breached its duty to warn, but that its negligence was not a proximate cause of plaintiffs' injuries. The jury also found that TMUA was not liable either because it did not breach a duty which was owed to plaintiffs or because of the absence of proximate cause, or both.
On their appeals, both plaintiffs challenge the trial Judge's jury charge regarding proximate cause. They also seek a reversal because the Judge failed to charge on the non-delegability of a landowner's duty to warn and on adverse inferences to be drawn from defendants' failure to produce certain witnesses at trial. In its cross-appeal, Kupper argues that its motion for summary judgment should have been granted. We consolidate the separate appeals for purposes of this opinion.
We find no basis to reverse the judgment against plaintiffs and no need for a Discussion of some of plaintiffs' contentions. See R. 2:11-3(e)(1)(B),(C),(E).
Kupper and TMUA also appeal the Judge's pre-trial determination that Agate was not required, under the construction contract, to indemnify them for expenses flowing from any negligent acts or omissions. Based on the jury's verdict and our affirmance thereof, the issue now has relevance only with respect to the legal fees of Kupper and TMUA. In that respect, we reverse the determination as to indemnification, and remand for further proceedings on that subject alone.
In 1986, TMUA decided to replace and rehabilitate portions of its sewer lines. The project was "primarily financed" by the Farmers Home Administration ("FmHA"), a federal agency within the Department of Agriculture. The FmHA required that its standard contract forms be used with respect to the projects they financed.
On March 6, 1986, TMUA and Kupper executed a FmHA contract whereby Kupper agreed to provide engineering services for the project. Kupper agreed to "conduct preliminary investigations," issue a preliminary engineering report and provide "construction drawings, specifications and contract documents" in connection with the project. The contract required Kupper to "provide general engineering review of the work of the contractors as construction progresses to ascertain that the contractor is conforming with the design concept."
Kupper was to "interpret the intent of the drawings and specifications to protect the OWNER against defects and deficiencies in construction on the part of the contractors," but, as the contract further provided, "the ENGINEER will not ... guarantee the performance by any contractor." Kupper was also, among other obligations, to provide "resident construction inspection." However, the contract also provided that the engineer's responsibilities:
shall not relieve the contractor of [the] contractor's obligation to perform the work in conformity with the drawings and specifications and in a workmanlike manner; shall not make the ENGINEER an insurer of the contractor's performance; and shall not impose upon the ENGINEER any obligation to see that the work is performed in a safe manner.
The contract was approved by the FmHA.
On September 16, 1986, the Ocean County Utilities Authority ("OCUA") wrote to Kupper indicating that OCUA had endorsed the proposed replacement and rehabilitation work because:
the wastewater being discharged into our system from Tuckerton contains hydrogen sulfide in excess of that permitted by our Sewer Use Rules and Regulations. This gas not only has a detrimental affect on this Authority's sewer lines since it is converted to sulfuric acid in the system by bacteria, but also presents a potential health hazard to our employees when they enter our system for inspection and maintenance purposes.
James Parr was Kupper's "project engineer." Parr's pre-construction examination of the Tuckerton sewers revealed that they "were in a state of disrepair" with broken pipes and other "flow" problems. He was shown "massive corrosion" which he was told resulted from the hydrogen sulfide gas. That gas could also be smelled on the streets.
On August 12, 1987, Parr wrote to TMUA and indicated that "pile support systems" were necessary improvements which "could result in further hydrogen sulfide generation." On September 11, 1987, in a letter to the New Jersey Department of Environmental Protection and Energy ("DEPE"), Parr noted, among other things, that "hydrogen sulfide generation is a problem."
It is clear that Kupper, as project engineer, was on notice of the hazardous condition caused by the hydrogen sulfide gas before the construction contract was executed.
Agate was the successful bidder for the construction contract. In March 1988, a construction contract was executed. Section 11 of the FmHA "general conditions" described Agate's responsibilities regarding the safety of work, property, and persons:
11.1 The CONTRACTOR will be responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the WORK. The CONTRACTOR will take all necessary precautions for the safety of, will provide the necessary precautions for the safety of, and will provide the necessary protection to prevent damage, injury or loss to all employees on the WORK and other persons who may be affected thereby, all the WORK and all materials or equipment to be incorporated therein, whether in storage on or off the site, and other property at the site or adjacent thereto, including trees, shrubs, lawns, walks, pavements, roadways, structures and utilities not designated for removal, relocation or replacement in the course of construction.
11.2 The CONTRACTOR will comply with all applicable laws, ordinances, rules, regulations and orders of any public body having jurisdiction. The CONTRACTOR will erect and maintain, as required by the conditions and progress of the WORK, all necessary safeguards for safety and protection. The CONTRACTOR will notify owners of adjacent utilities when prosecution of the WORK may affect them. The CONTRACTOR will remedy all damage, injury or loss to any property caused, directly or indirectly, in whole or part, by the CONTRACTOR, any SUBCONTRACTOR or anyone directly or indirectly employed by any of them or anyone directly or indirectly employed by any of them or anyone of whose acts any of them be liable, except damage or loss attributable to the fault of the CONTRACT DOCUMENTS or to the acts or omissions of the OWNER, or the ENGINEER or anyone employed by either of them or anyone for whose acts either of them may be liable, and not attributable, directly or indirectly, in whole or in part, to the fault or negligence of the CONTRACTOR.
Agate was further required to "supervise and direct the WORK," and to "be solely responsible for the means, methods, techniques, sequences and procedures of construction."
One of the "general conditions" embodied in the FmHA instructions, which were incorporated into the contract, provided that, in order to "protect the lives and health of its employees under the CONTRACT," the contractor was to comply with all provisions promulgated by the Occupational Safety and Health Administration ("OSHA") and any state agency requirements. *fn3
Specific "supplementary conditions" in the construction contract dealt with poisonous gases. Sections 7.1 and 7.2 provided:
00807 HAZARDOUS AND TOXIC GASES
7.1 IN ADDITION TO THE SAFETY AND PROTECTION RESPONSIBILITIES OF THE GENERAL CONDITIONS, CAUTION SHOULD BE EXERCISED RELATIVE TO OXYGEN DEFICIENCY, AND THE COLLECTION AND ACCUMULATION OF HAZARDOUS AND TOXIC GASES WHICH MAY BE PRESENT AS A RESULT OF EXISTING GROUND CONDITIONS.
7.2 THE CONTRACTOR SHALL TAKE REQUIRED PRECAUTIONS FOR THE DETECTION OF OXYGEN DEFICIENCY AND TOXIC AND HAZARDOUS GASES AND SHALL PROVIDE THE NECESSARY SAFETY APPARATUS IN GOOD WORKING ORDER IF AND WHEN HAZARDOUS AND TOXIC GASES ARE ENCOUNTERED IN THE WORK.
On April 5, 1988, the parties held a pre-construction conference. In the written memo confirming the conference, no reference was made to any Discussion regarding the hydrogen sulfide gas. In fact, Parr's position was that Kupper should not have raised the subject because, under the contracts, that subject was the contractor's responsibility. Nevertheless, in a subsequent letter to Tuckerton Borough's engineer, with a copy to TMUA and others, Parr reported on July 28, 1988, that one of the conditions at the site was that "hydrogen sulfide gases are being generated as a result of the trapped sewage which does not flow."
According to David Vanderslice, one of Agate's heavy equipment operators, on the afternoon of September 6, 1988, Agate employees were getting ready to "clean up" the site as they finished work for the day. Incident thereto, Ware entered a ten-to-twelve-foot-deep manhole in order to remove the construction "plug" from the sewer line for the night. Vanderslice and William Olsen, Ware's foreman, stood near the entrance of the manhole, when Vanderslice heard "some funny noises" below and concluded that "something's wrong with [Ware]." Olsen and Bradford immediately went into the hole to help Ware. The two men tried to lift Ware out as Vanderslice attempted to grab him from above. However, when Bradford and Olsen "just fell down," Vanderslice recognized that there was a "problem," and he directed co-workers to get a rope and oxygen. After a few minutes, they were able to get Ware out with the help of a ladder. Olsen and Bradford were subsequently removed from the manhole. Bradford died from his injuries.
The medical examiner's opinion as to Bradford's cause of death was "acute stagnant air syndrome and pulmonary congestion." The death certificate identified the cause of death as "asphyxia due to exposure to toxic fumes and stagnant air syndrome." Dr. Walter Corrigan, one of Bradford's experts, testified that the cause of death was "asphyxia due to inhalation of hydrogen sulfide, and probably other gases." Dr. Martin Aronson, another of Bradford's experts, concluded that death resulted from "hydrogen sulfide poisoning."
According to hospital records, Ware remained in a coma for several days after the accident. It was uncontested that Ware suffered "toxic metabolic encephalopathy," brain damage, resulting from a "poisonous substance which affected the blood-flow and/or the oxygen-flow to the brain."
After Ware was ultimately discharged from the hospital, he underwent cognitive rehabilitation in an in-patient rehabilitation facility in early 1989. Ware was told he could return to work in October or November 1989.
Nevertheless, according to Dr. Hugh Anthony Simone, Ware suffered permanent brain damage from the inhalation of the gas that made it difficult for Ware both to learn and to remember. Although the doctor felt that Ware could perform "useful work," he believed that Ware's condition could deteriorate and that he would continue indefinitely to have "memory problems." Around December 1988, Ware and his wife separated.
Both Olsen and Vanderslice testified that, throughout construction, there had been a bad odor at the site daily. Nevertheless, no one had warned them about the possible presence of hydrogen sulfide gas in the sewer lines.
In November 1988, OSHA issued a citation to Agate for failing to maintain a safe work site. OSHA alleged that Agate permitted its employees to be "exposed to confined space hazards of oxygen deficiency and ... flammable gases and vapors and/or toxic air contaminants." It also charged that Agate had failed to instruct its employees "as to the nature of the hazards involved" or to instruct them regarding the "necessary precautions to be taken and in the use of protective and emergency equipment required." It issued directions as to how Agate was to insure future employee safety at the site.
In his deposition which was read to the jury, William Barry, Kupper's "resident engineer," testified that the engineer could not control "the contractor's day-by-day operations." However, he also testified that "noxious gases" were not expected to "accumulate" as a result of plugging the line while construction continued. Barry never smelled the "bad odor" at the site, and he had no idea how it was generated. Moreover, Barry indicated that encountering the gas in sewer repair work was "not normal." He never mentioned any potential hazard to Agate employees because he was not aware of such hazards himself, and was not advised of same by his supervisors.
Parr's depositions were also read to the jury. He visited the job site approximately once a month. Parr was not aware that hydrogen sulfide gas could cause human death, although understood that "a person could be overcome in a manhole without proper apparatus." Parr also said that Kupper did not "address safety measures, safety aspects" of the job because, under the contract, those were the contractor's obligation. However, he noted that it was Kupper's responsibility to "watch out for its people," and that he expected the contractor to "watch out" for its employees.
According to Parr, Agate was responsible to provide "continuous[,] uninterrupted sewerage service" to the Borough. Due to prior experience at another job, Parr insisted that that provision be in the contract. According to Parr, Agate maintained that by-pass pumping would not be ...