On certification to the Superior Court, Appellate Division, whose opinion is reported at 278 N.J. Super. 451 (1995).
The opinion of the Court was delivered by Handler, J. Chief Justice Wilentz and Justices Pollock, O'hern, Garibaldi, Stein, and Coleman join in Justice HANDLER's opinion.
The opinion of the court was delivered by: Handler
(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).
Cidalina O. Carvalho, etc. v. Toll Brothers and Developers, et al. (A-35-95)
Argued October 23, 1995 -- Decided May 6, 1996
HANDLER, J., writing for a unanimous Court.
In 1985, West Windsor Township retained Bergman Hatton Engineering Associates (Bergman) to prepare plans for the construction of sewer service for the Assunpink Basin. Toll Brothers and Developers was the general contractor on the project. The Township and Bergman entered into a contract on the project in April 1987. In May 1987, the engineer hired Bruce Stonebeck as an inspector. Stonebeck became the site inspector in October 1987. According to Bergman, Stonebeck was hired to inspect only the material being used and the amount of work being done.
In December 1987, while working in a thirteen-foot-deep trench, Francisco Carvalho, an employee of the subcontractor (Jude Enterprises) that Toll Brothers had hired to do the excavation work, died when an unshored trench collapsed and crushed him. On the date of the accident, the inspector was present, watching Mr. Carvalho work in the trench.
In May 1989, Mr. Carvalho's widow sued the Township, Bergman, and Toll Brothers for wrongful death and survivorship benefits. The trial court dismissed the complaint against the Township because Mrs. Carvalho did not comply with the notice requirements of the Tort Claims Act. Bergman cross-claimed against Toll Brothers for indemnification and Toll, in turn, brought in Jude Enterprises as a third-party defendant for indemnification.
Mrs. Carvalho settled with Jude Enterprises and Toll Brothers. Jude's insurer paid the entire settlement because it indemnified Toll. Bergman then moved for summary judgment, which was granted. The Appellate Division reversed the summary judgment. The Supreme Court granted Bergman's petition for certification.
HELD: An engineer has a legal duty to exercise reasonable care for the safety of workers on a construction site when the engineer has a contractual responsibility for the progress of the work, but not for safety conditions, yet is aware of working conditions on the construction site that create a risk of serious injury to workers.
1. The question of whether to impose a duty to exercise reasonable care to avoid the risk of harm to another is one of fairness and policy that implicates many factors. These include the foreseeability of the harm, the relationship of the parties, the responsibility for the conditions creating the risk of harm, the element of control arising from the relationship of the parties, the opportunity and capacity of the party to have avoided the risk of harm, and an actual awareness or knowledge of the risk of harm. (pp. 7-13)
2. Considerations of fairness and public policy require imposing a duty on the engineer and the inspector to exercise reasonable care to avoid the risk of injury on the construction site. There was a sufficient connection between the engineer's contractual responsibilities and the condition and activities on the work site that created the unreasonable risk of serious injury. The engineer had the opportunity to foresee and discover the risk of harm and to exercise reasonable care to avert any harm. (pp. 13-14)
3. The engineer argues that it should not be financially responsible for Carvalho's death because Toll Brothers was required to name Bergman as an additional insured on its insurance policy, but failed to do so. Bergman also had an exculpatory agreement with the Township. It would be unfair to exonerate Bergman from its liability to Carvalho on the basis of its exculpatory agreements with the Township and Toll Brothers. Their private financial arrangements and understandings do not overcome the public policy that imposes a duty of care and ascribes liability to the engineer in these circumstances. (pp.14-16)
The judgment of the Appellate Division is AFFIRMED and the matter is REMANDED to the Law Division for further proceedings.
CHIEF JUSTICE WILENTZ and JUSTICES POLLOCK, O'HERN, GARIBALDI, STEIN, and COLEMAN join in ...