The opinion of the court was delivered by: Per Curiam
ON CERTIFICATION TO Appellate Division, Superior Court
Chief Justice Poritz PRESIDING
DISSENTING OPINION BY Justice Coleman
Argued September 26, 2000
This wrongful death action was instituted to recover damages resulting from the death of twenty-nine-year-old Matthew Pfenninger who was killed when an eight-to-nine-foot-deep trench collapsed on top of him while he was installing drainage pipe. The appeal presents three primary issues. The first issue is whether the landowner, Hunterdon Central Regional High School District Board of Education (Board) and the architect, A.J. O'Sullivan Architects, P.A. (O'Sullivan), breached a duty of care to Pfenninger arising out of a responsibility to supervise Pfenninger's company in the excavation and piping of the trench. The second issue is whether the trial court abused its discretion in denying plaintiff's requests for discovery of other documents involving O'Sullivan's responsibility to the Board on related construction projects.*fn1 The third issue concerns whether the Board breached its duty to Pfenninger in negligently supplying Pfenninger with nonconforming drainage pipe that required his entry into the trench to connect it.
The material facts concerning the claim that the Board and O'Sullivan breached a duty of care to Pfenninger arising out of their responsibility to supervise Pfenninger's company in the excavation and piping of the trench are set forth in the Appellate Division's opinion reported at _____ N.J. Super. ___, ___-___ (2001)(slip op. at 3-10), as well as in Justice Coleman's dissenting opinion. Post at ___-___ (slip op. at ___-___). We incorporate the relevant facts by reference. A majority of the Court is substantially in agreement with Justice Coleman's conclusion that, based on the present record, plaintiff has not established that either the Board or O'Sullivan breached a duty of care to Pfenninger because of their failure to supervise Pfenninger's company in the excavation and piping of the trench. In that respect we disagree with the Appellate Division's disposition, that court having found a triable issue of fact on the issue of negligent supervision.
Nevertheless, although we modify the Appellate Division's disposition, we affirm its judgment remanding the negligent supervision claim to the Law Division for further proceedings based on our view that the trial court abused its discretion in denying plaintiff's request for further discovery. As we understand the record, plaintiff requested a number of documents from O'Sullivan and the Board. The trial court upheld defendants' refusal to supply those documents on the ground that plaintiff's discovery request was "unduly burdensome, overly broad, and not reasonably calculated to lead to admissible evidence." Among the items plaintiff sought were the following:
Any and all records, notes, correspondence, plans, drawings, sketches, bids, requests for bids, work orders, invoices, or documents of any kind concerning projects involving A.J. O'Sullivan Architects at the Hunterdon Central Regional High School for the period of January 1, 1993 through January 1, 1995, including but not limited to the fountain and scoreboard projects.
According to plaintiff, that information was necessary because the initial discovery did not uncover evidence of a written contract between the Board and O'Sullivan setting forth their respective duties and obligations on the job Pfenninger was hired to complete. Thus, evidence of the supervisory responsibilities of the Board and O'Sullivan on the related projects could lead a jury to infer that they had a greater managerial role in Pfenninger's project than they acknowledged, and a concomitant duty of care.
Further, that evidence would be critical in assessing the verity of the position advanced by O'Sullivan and the Board that neither was responsible for supervising Pfenninger when he dug the trench and that no one, in fact, oversaw that job. That evidence also may provide an important link to plaintiff's expert's opinions that concluded that the Board and O'Sullivan "were engaged in coordination of the work being done" by Pfenninger; that both were acting as "general contractor/project manager;" and that O'Sullivan and the Board "fail[ed] . . . to exercise due care in their joint and separate obligations to jobsite workers."
In our view, both the Law Division and the Appellate Division erred in their disposition of the discovery issue. Plaintiff was entitled to attempt to discover evidence concerning related construction projects involving the Board and O'Sullivan that might have a bearing on O'Sullivan's and the Board's general supervisory responsibilities on construction projects then in progress on the Board's properties. See In re Liquidation of Integrity Ins. Co., 165 N.J. 75, 82 (2000)(noting that parties may obtain discovery regarding any non-privileged matter that is relevant to subject of pending action or is reasonably calculated to lead to discovery of admissible evidence). Accordingly, on remand, the trial court shall permit plaintiff, through appropriate discovery requests, see R. 4:10-1, to attempt to elicit information concerning O'Sullivan's and the Board's responsibilities on those related projects. The trial court may exercise its discretion, consistently with the views expressed in this opinion, concerning the proper scope and extent of such discovery. We intimate no view whatsoever on whether the documents and information produced in the course of such discovery will lead to evidence establishing a claim of negligent supervision on the part of the Board or O'Sullivan that will survive summary judgment. Our remand to the trial court for further discovery is without prejudice to defendants' right to renew their motion for summary judgment when that discovery has been completed.
We address separately and in detail plaintiff's claim that the Board's negligence in providing Pfenninger with nonconforming pipe was a proximate cause of his death.
Pfenninger was the owner of Countywide Excavating Company (Countywide) and he contracted with the Board to install a drainage remediation system for the Hunterdon Central Regional High School's varsity baseball and soccer/lacrosse fields. The installation of the drainage pipe was the last phase of a three- phase construction project to improve the high school's athletic fields.
Under the terms of Pfenninger's agreement with the Board and O'Sullivan, the Board was required to supply Pfenninger with the materials to complete the project. Pursuant to the agreement, Pfenninger wrote to the Board to request the following pipe: "495' of 6" poly pipe . . . 730' of 8" poly pipe . . . (20) 6"-4" T . . . [and] (20) 4" caps." The specifications for the pipe were set forth initially in O'Sullivan's design specifications and drawings of the field drainage project, which called for "perforated 6" or 8" corrugated polyethylene plastic underdrain pipe w/ filter fabric stock." (Emphasis added).
Corrugated polyethylene pipe is a plastic flexible pipe that is available in long lengths. When the pipe is perforated, the holes in the pipe allow water to enter and escape the pipe. Perforated corrugated polyethylene pipe is commonly used as drainage piping because a contractor can install the pipe from the outside of an excavation trench without entering it. Because the pipe is flexible, as one end of the pipe is laid down in the trench the other end can remain out of the trench for connection. At his deposition, Andrew O'Sullivan, president of O'Sullivan, confirmed that the plans and specifications for the project required perforated and corrugated polyethylene pipe. He described the design specifications in the following exchange:
Q: Is any type of pipe specified to be used as the drainage piping?
Q: You are reading from typical trench detail.
A: Perforated six-inch or eight-inch corrugated polyethylene plastic on the drain pipe would fill the fabric sock.
Q: What is "perforated pipe?"
A: It means it has holes in it to allow water to enter or escape, whatever.
Q: What is corrugated pipe?
A: Corrugated pipe is pipe that has alternating larger/smaller diameters so it is flexible.
Q: Okay. That is my next question. Is corrugated perforated pipe flexible?
Q: What is polyethylene pipe?
O'Sullivan was then asked about how that pipe is assembled:
Q: And you understood when you created these plans, if I understand your testimony correctly, that the pipe could have been assembled on ...