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Egg Harbor Township Board of Education v. Schaeffer Nassar Scheidegg Consulting Engineers


December 21, 2011


On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-4259-06.

Per curiam.


Argued October 20, 2010

Before Judges Axelrad, R. B. Coleman and Lihotz.

Third-party defendant/fourth-party plaintiff Tamburro Brothers Construction Company (Tamburro), the general contractor on a project involving the design and construction of a water retention basin (the Basin or the project) at the Dr. Joyanne D. Miller Elementary School (the Miller School), appeals from the order for judgment entered on October 19, 2009 in the civil action brought by plaintiff Egg Harbor Board of Education (plaintiff or the Board) against Tamburro and others. The judgment memorialized a jury verdict returned following a trial conducted between June 22 and July 2, 2009.

The jury found Tamburro and its excavation subcontractor, fourth-party defendant Dom Zanghi & Sons (Zanghi), had breached their respective contracts to construct the Basin in accordance with the applicable plans and specifications; however, it concluded Zanghi's breach did not cause or contribute to the malfunction of the Basin. The jury also found that the designer of the project, defendant/third-party plaintiff Schaeffer Nassar Scheidegg Consulting Engineers (SNS Engineers or Scheidegg), deviated from accepted engineering practices while performing its work on the project, but that deviation, like the breach by Zanghi, was not a proximate cause of the malfunction of the Basin. The jury also found third-party defendant Hanifin Associates, LLC (Hanifin) breached its contract to provide construction management services for the project. That breach, like the breach by Tamburro, was found to have caused or contributed to the malfunction of the Basin. Finally, in response to the question on the jury verdict sheet concerning the amount of money needed "to restore the [B]asin to the retention/detention basin specified in the existing plans and specifications," the jury awarded $250,000.

After the return of the jury's verdict, Tamburro moved for judgment notwithstanding the verdict or, alternatively, for a new trial. Those motions were denied, and on October 9, 2009, the order for judgment was entered. The order provided that Tamburro and Hanifin were both liable for the full amount of the judgment. This appeal ensued.*fn1 We affirm.

It is undisputed that the drainage retention/detention Basin constructed as part of the project at the Miller School was designed to drain a ten year twenty-four hour storm within seventy-two hours, and it did not function properly. Water pooled in the Basin and remained there rather than dissipating as expected. It was constantly retaining large quantities of water and would not dry out unless it was actually pumped out.

In its brief on appeal, Tamburro acknowledges that the Basin does not function properly; however, it insists it was not contractually bound to meet the plaintiff's performance expectations. Rather, it claims its obligation was to provide a basin in conformance with the plans and specifications, which it contends it did. By contrast, plaintiff asserts the various defendants did not construct the Basin in accordance with the plans and specifications nor in accordance with professional standards applicable to such a basin. The designer, SNS Engineers, maintains "the [B]asin does not perform because the [B]asin simply was not constructed as designed."

Prior to the expiration of the warranty period, it was

discovered that the Basin was not in conformity with the plans because topsoil had been placed in its bottom. Upon discovery of that mistake, a remediation effort was undertaken by the contractor defendants, Tamburro and Zanghi; however, even after the remediation effort, the Basin did not effectively drain. Plaintiff asserted the remediation effort itself compromised the bottom of the Basin, which became over-compacted. Additionally, according to plaintiff's proofs, the Basin's bottom was not excavated to a minimum level of two feet above the seasonal high water table, but merely six inches to one foot above it.

As noted, Tamburro concedes that the Basin did not comply with plaintiff's expectations, but it argues its obligation was merely to deliver a project in conformance with the project plans and specifications. It contends it is entitled to a new trial because (a) the trial court should have barred the testimony of plaintiff's expert witness as a net opinion; (b) the court erred in holding Tamburro and Hanifin jointly and severally liable; (c) the court applied incorrect standards on Tamburro's motion for judgment notwithstanding the verdict and for a new trial; (d) plaintiff did not present evidence of damages arising from the independent actions of Tamburro; and (e) Tamburro cannot be liable for damages if Zhangi, the contractor that actually performed the work, is not liable. While we agree that the verdict as to Tamburro and Zanghi appears to be inconsistent with the subcontract provision that the "[s]ubcontractor understands that he is bound by the requirements of the General Contract with the owner to the same extent as the contractor," we do not perceive any of the court's rulings to have misled the jury or to have been such an inappropriate exercise of discretion as to warrant a new trial.

In order to better place the matter in context, we shall first provide a more detailed factual background. Before SNS Engineers finalized the design of the Miller School stormwater management system, its employees dug three test pits at the site where the Basin was to be located in the original plans.*fn2 The plans were then changed to situate the Basin at a different location. SNS Engineers did not dig new test pits at the Basin's new location because its supervising engineers felt the original test pits were adequate as "representative samples of test pits in the area." According to David Scheidegg, one of the owners of SNS Engineers, the Basin's new location was further up the gradient, which meant that the design should have been suitable at the new location as well. When SNS Engineers finalized its design for the stormwater management system, it submitted its plans to the Pinelands Commission for approval, which was granted notwithstanding the fact that the borings had not been made within the footprint of the relocated Basin.

When Tamburro bid on the project, the construction documents made available to bidders specified that the contractor would be "responsible to make his own investigations and evaluations or assumptions of existing subsurface conditions of the site, the nature and character of materials to be encountered in the work, and the types and sizes of equipment required to properly perform the work." The specifications for the stormwater management system also provided that "in areas of excavation where poorly drained soils or clay are encountered, the contractor shall excavate to the limits as directed in the field by the engineer and replace with suitable, well-draining fill material. This additional excavation and backfill, if necessary, shall be included in the contract bid price." The specifications required any sand backfill used to have a permeability greater than eighteen inches per hour.

The Basin was fully excavated by August 30, 2002. It is uncontested that in the initial excavation the bottom of the Basin was lined with topsoil,*fn3 rather than sand, as called for by the plans and specifications. It is also uncontested that two notes in the construction plans stated that the bottom of the Basin should be free of topsoil. Raymond Tamburro, an owner of Tamburro, testified during a deposition that was read into the record that Zanghi "inappropriately or mistakenly put [top]soil in the basin[.]" He also admitted that "we told Zanghi to put topsoil in the basin."

Joseph Zanghi, an owner of Zanghi who was personally involved in constructing the Basin, admitted that he discussed with employees of Tamburro that "we shouldn't have put topsoil on the floor. There was a note on the drawing that me [sic] or Tamburro's superintendent missed." Furthermore, according to Herschel James Garrison, Jr., Tamburro's superintendent on the project, no one working for Tamburro ever checked the bottom depth of the Basin after completion.

Almost immediately after completion, the Basin was collecting permanent standing water rather than drying out. Construction meeting minutes from November 20, 2002, referred to a "permanent water issue" in the Basin, which was otherwise "stabilized and functioning." Eventually, on July 14, 2003, the construction manager sent Tamburro a fax advising that "on behalf of [the Board], [Hanifin Associates] directs Tamburro Brothers to remove all existing topsoil from the bottom of the storm water basin in order to achieve proper drainage."

In response, Tamburro directed Zanghi to fix the Basin. Zanghi returned to the site before the start of the September 2003 school year and pumped the Basin dry, removed the topsoil at the bottom of the Basin, installed a wick and installed a layer of sand. In Mr. Zanghi's deposition testimony, he stated that he removed all the topsoil in the Basin at that time. He claimed that he replaced the missing topsoil with an appropriate amount of highly-permeable "concrete sand" to reach the "designated elevation" and "dug a trench down the middle and put stone in it." The Basin continued to hold water after the attempted remediation.

The Basin was "turned over" to the Board in September 2003. On October 1, 2003, the Board, the design architect, E.I. Associates,*fn4 Hanifin, and Tamburro signed a certificate of substantial completion, which signified that "the work . . . performed under the contract[,] has been reviewed and found to be substantially correct and complete." Tamburro provided a one-year warranty for its work, which included a warranty for the work of its subcontractors.

Towards the end of the warranty period, Brian Dunlevy, then Director of Facilities for Egg Harbor Township, contacted SNS Engineers to seek a permanent resolution of the drainage issue because the Basin was still holding water. In a July 16, 2004 letter, Scheidegg, on behalf of SNS Engineers, informed Dunlevy that he visually examined the Basin and the color of the water made him believe that it was not groundwater. He believed the standing water was stormwater runoff that was unable to percolate and infiltrate into the underlying soils because the bottom of the Basin had been "silted up" during the construction process. Scheidegg's letter requested that the Board provide SNS Engineers with the as-built drawings that should have been completed by Tamburro.*fn5

On September 7, 2004, Sheidegg, Dunlevy, and Mr. Zanghi dug nine test pits in and around the Basin with a backhoe to learn more about the cause of the drainage problem. At the time, the Basin was holding twenty-four inches of standing water. According to Scheidegg, when the backhoe dug underneath the standing water at the bottom of the Basin, it recovered an "extensive" layer of topsoil ten to fourteen inches thick in eight of the test pits. An examination of the samples of topsoil revealed that "[t]his topsoil was heavily compacted and[,] combined with siltation[,] has formed an impenetrable layer." A layer of dry sand was found beneath the areas covered with topsoil, and even in areas where there was no topsoil, there was a dry layer of granular material beneath the sandy soil "due to siltation and possible excess compaction."

After the test pits had been excavated, the water level in the Basin fell by five inches in two hours and another one-half inch in the next three hours. The next day, after some precipitation, the water level was four inches lower than it had been prior to the excavation of the test pits. Scheidegg believed that the remaining sediments in the Basin had clogged the test pits as water drained from the Basin. He recommended that Zanghi remove all the impermeable topsoil from the Basin to allow it to drain completely and then to dig additional test pits.

On September 24, 2004, Scheidegg and Mr. Zanghi examined the Basin after it had been pumped dry. Scheidegg found complete sedimentation of the entire bottom of the basin. Approximately 2"-3" of material are [sic] located on the bottom of the basin[;] this material is impervious in nature and prevents the basin bottom from draining. Additionally, we have noted that topsoil does exist on the bottom of the basin in areas ranging from as little as 2" in depth to areas in excess of 16"-18" in depth, this topsoil is somewhat impervious also as material under this topsoil is granular sand and dry in nature. Dom Zanghi excavated several test pits throughout the bottom of the basin and determined that sandy material exists below the level of the topsoil in all test pits.

On September 28, 2004, Zanghi began a second round of remedial work on the Basin, first constructing a ten-foot-wide crushed-stone, low-flow channel across the Basin and then removing topsoil from the Basin's north side. By October 14, 2004, Zanghi had removed thirty truckloads of soil. Dunlevy testified that the Basin functioned properly for only a short period of time afterwards. Dunlevy was not certain whether all the topsoil was removed.

Because the Basin was still holding water on January 27, 2005, the Board resolved to have the Board Engineer, Vince Polistina, conduct additional soil testing, compare an as-built survey of the Basin to the plans and specifications, and submit a plan of corrective action. On February 3, 2005, the Board received an "as-built" drawing from Tamburro, prepared by Zanghi, which exhibited no "markups" on the original plans, implying the Basin had been built exactly as designed. On March 29, 2005, however, SNS Engineers received "as-built" drawings from Polistina Associates (Polistina). Polistina's as-built drawing, which was dated February 15, 2005, placed the bottom elevation of the Basin at forty-six feet, whereas the design plans called for a bottom elevation of forty-eight feet. Polistina's as-built drawings also showed a groundwater elevation of 44.2 feet. Because of the unexplained differences in elevations, SNS Engineers conducted its own survey investigation and concluded the elevation of the Basin's bottom was two feet deeper than called for by the plans. In his May 7, 2008 deposition, Mr. Zanghi testified that this two-foot difference could be explained by overexcavation that may have occurred during a remediation attempt.

Sometime in early 2008, the French & Parrello firm excavated four test pits or borings in the center of the Basin and two on the bank. These were the only borings taken inside the Basin. The French & Parrello borings showed that the seasonal high water table within the Basin was between 45.9 and 44.3 feet.

At trial, Scheidegg was not presented or qualified as an

expert witness, but he offered his opinion that the excavation of the Basin to an elevation below the design grade is the "primary cause" for its failure. He noted that the bottom of the Basin is below the designed elevation based on Polistina's 2005 as-built survey and the French & Parrello report. When asked why the Basin continues to hold water, Scheidegg answered "its so close to the seasonal high groundwater and probably because there's an impervious surface on the bottom of the basin floor as it exists now. . . ." He added that "the French & Parrello logs indicated that there's a half-inch layer - organic layer that creates an impenetrable barrier, and the water then can't infiltrate and percolate into the underlying soils."

Scheidegg testified that SNS Engineers was aware that there were layers of clay in the vicinity of the Basin, but that it was both unnecessary and cost-prohibitive to attempt to remove all the clay beneath the footprint of a retention/detention basin. In any event, he stated that "it's also up to the contractor . . . to make sure that there's not clay everywhere within the bottom of the basin."

On cross-examination, Scheidegg was questioned about SNS Engineers's failure to take additional soil borings inside the area where the Basin was to be relocated. He acknowledged that taking borings within the Basin itself is the most accurate way to gain information about the soil beneath it, but he did not believe it was a mistake not to take borings beneath the relocated Basin. Scheidegg also admitted that SNS Engineers did not conduct any permeability tests of the soil before the Basin was constructed and did not perform a compaction test of the Basin's bottom.

Charles Walton, a licensed professional engineer, surveyor, and planner who had designed forty to fifty similar stormwater management basins, was permitted to testify as an expert witness for plaintiff.*fn6 He offered possible reasons for the Basin's failure to drain. Though he placed primary fault with the SNS Engineers's design, Walton also criticized Tamburro's construction as flawed.

In Walton's opinion, SNS Engineers failed to adhere to the standard of care for engineers in designing the Basin.*fn7 Within his testimony regarding SNS Engineers's failure to specify on the plans that heavy equipment was not to be used in the bottom of the Basin, Walton elaborated that heavy construction equipment "can have the ill effect of compacting the underlying soils to the extent that they will not percolate effectively." To avoid compaction, Walton opined an excavator should remove the last six to twelve inches of soil with the type of lightweight equipment that a landscaper might use. When asked whether an excavation contractor should have known of the possibility of compaction of soil by heavy equipment, Walton replied: "Possibly, but since the basin is so critical, it should have been specified that they . . . only use heavy equipment to a certain point and undercut it with lighter equipment." According to Walton, "a knowledgeable site-work contractor, when he's charged with achieving proper drainage, would realize that using large, heavy equipment to achieve a purpose could very well defeat that purpose by compacting the soils [in] doing it."

Walton testified that he learned from Mr. Zanghi's deposition testimony that Zanghi used a pan to remove the soil when initially building the Basin. In Walton's opinion, the use of a pan would compact soil; however, he admitted that he had never personally observed a basin that did not drain due to a contractor's use of a pan to excavate it. He also did not know what size pan Zanghi used to excavate the Basin, but stated that pans "tend to be large" and are "pretty much classified as heavy equipment."

On cross-examination, Walton admitted that the French & Parrello borings did not make a particular determination as to whether the Basin had been overly compacted. To Walton's knowledge, no one had ever done compaction tests in the Basin. Nevertheless, Walton perceived "at least some compaction of the material" because he remembered that a small backhoe was "having a dickens of a time" removing the topsoil that had previously been underwater.

Walton's "primary criticism" of Tamburro was that "somewhere along the line they failed to bring things to the correct elevation, and they also didn't get clarity on the issue of the topsoil in the basin bottom." Walton testified that at the time of trial the elevation of the bottom of the Basin was approximately one and a half feet below the design elevation of forty-eight feet and "somewhere between six inches and a foot above the seasonal high water table, and it's supposed to be a minimum of two feet above it." Walton concluded that the separation of the bottom of the Basin by only six inches to a foot above the high water table was "a component of [the Basin's failure to drain], certainly."

Regarding the "issue of the topsoil," Walton admitted that the placement of topsoil in the bottom of the Basin was not an irreparable mistake, as long as it had been properly removed. He also admitted that it appeared to him, based on the French & Parrello borings, that the topsoil had been completely removed and replaced with sandy materials, "generally . . . suitable" for proper infiltration. However, the borings showed a layer of "organic matter" - "unpleasant" and "slimy stuff" - that could be duck feces.

Walton also provided testimony regarding Tamburro's responsibility to supervise Zanghi. He testified that the term "supervision," as used in construction parlance, denotes the highest level of scrutiny in reviewing the work of another. Additionally, he opined that "Hanifin was supposed to coordinate more than supervise[, and] [t]he supervision is basically the general contractor's responsibility."

Walton provided his professional opinion on "what needs to be done to fix the basin" and provided estimates of the cost to do so. Several of Walton's recommendations pertained only to design issues.*fn8 Otherwise, Walton recommended dewatering and cleaning out the pipes of the drainage system at a cost of $20,000, dewatering and excavation of two feet of "unsuitable materials" from the bottom of the Basin at a cost of $85,000, that K5 sand be purchased, placed in the bottom of the Basin, and carefully graded to an elevation of forty-eight feet, without compacting the underlying soil, at a cost of $135,000.

Because Walton believed that actual implementation of those plans could cost twenty percent more or less than the estimated figure, he built in a $69,000 contingency. Thus, Walton's cost estimate for the actions he deemed necessary to remediate construction errors only was $240,000; with a twenty percent contingency, the total would be $288,000.

On appeal, Tamburro argues that Walton's testimony "created an air of liability without an explanation of Tamburro's contractual obligations, a precise determination of whether those contractual obligations were breached and without any evidence connecting the alleged breach with the damages subsequently awarded." Tamburro asserts that Walton's testimony was a "classic net opinion" that caused the jury to reach a finding of liability without a proper factual basis. The Board and SNS Engineers argue that Walton provided more than bare conclusions, so his testimony was properly admitted.

Although Walton opined that the Basin's failure to drain could have been caused by numerous factors, such equivocation goes to the weight, rather than the admissibility, of his opinion. The admissibility of expert testimony is guided by N.J.R.E. 702 and 703. N.J.R.E. 702 provides that "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise." N.J.R.E. 703, which provides that "[t]he facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing[,]" recognizes that an expert's opinion must be founded on "facts or data." Hisenaj v. Kuehner, 194 N.J. 6, 24 (2008). We are satisfied that there was sufficient factual basis to support Walton's opinions regarding the factors attributed to Tamburro's overexcavation, compaction of the soil, and placement of topsoil in the Basin.

In reviewing a trial court's evidentiary ruling, we are limited to examining the decision for abuse of discretion. Hisenaj, supra, 194 N.J. at 12. A trial court's determination on the admissibility and scope of expert testimony therefore will be reversed only upon a showing of "'manifest error or injustice.'" State v. Torres, 183 N.J. 554, 572 (2005) (quoting State v. Ravenell, 43 N.J. 171, 182 (1964), cert. denied, 379 U.S. 982, 85 S. Ct. 690, 13 L. Ed. 2d 572 (1965)). We do not discern manifest error or injustice in this case.

In its brief, without comparing the facts of the present case to those in any of the cases it cites, Tamburro sets forth several arguments in support of its general assertion that Walton's opinion was an inadmissible net opinion, including that: (1) Walton failed to explain the extent of Tamburro's contractual obligations; (2) Walton professed no knowledge of the Basin's elevation at "turnover" in September 2003; and (3) whereas Walton's testimony established only that the Basin failed to perform, Tamburro's contract did not obligate it to deliver a functioning basin.

These three arguments may be dismissed without extensive discussion. First, expert testimony was not necessary to explain the extent of Tamburro's contractual obligations. The jury was provided with a copy of the contract. Moreover, it was generally agreed among the parties that Tamburro was only required to construct a retention/detention basin consistent with the plans and specifications. The judge so instructed the jury and included that limitation in the jury verdict questionnaire. Walton's opinion was therefore not inadmissible because it failed to outline Tamburro's contractual obligations. Those obligations were established or inferable by other means.

Second, Walton's lack of knowledge regarding the Basin's condition at turnover in September 2003 did not warrant exclusion of his opinion since other witnesses testified regarding such conditions. The need to excavate the Basin subsequent to "turnover" in order to correct the improper placement of topsoil in the Basin was not disputed, and Zanghi, at the direction of Tamburro, performed that evacuation. The thrust of Walton's testimony at trial was that the Basin's bottom had been excavated to an elevation lower than that called for in the plans and specifications, and, as a result, was only six inches to a foot above the high water table. In Walton's opinion, the cut below the elevation specified in the plans was a contributing factor in the Basin's failure to drain. Thus, the critical aspect of Walton's expert opinion was that the remedial efforts themselves resulted in a basin that was cut deeper than the design elevation and that the overexcavation of the Basin caused or contributed to its failure to drain.

Third, contrary to Tamburro's characterization of Walton's testimony, Walton's expert opinion did not depend upon Tamburro's contract being one that ensured the Basin's performance. Rather, Walton's opinion assumed that the plans and specifications called for a bottom elevation of the Basin at forty-eight feet above sea level and that the bottom elevation of the Basin at the time of trial was "approximately 1.5 to 2 feet below the design elevation." By implication, the jury found that the Basin would have worked if it were built according to the plans and specifications.*fn9 Thus, one can reasonably infer that the basis of Tamburro's liability was its failure to deliver a Basin that adhered to the plans and specifications, and not its failure to deliver a functioning basin.

We cannot conclude that the trial court misapplied its discretion or committed a manifest error or injustice by admitting Walton's testimony. Torres, supra, 183 N.J. at 572 (quoting Ravenell, supra, 43 N.J. at 182). Walton was vigorously cross-examined and much of his testimony was challenged. Nevertheless, the jury obviously accepted the underlying testimony that the Basin had been overexcavated in breach of the plans and that breach caused or contributed to the Basin's failure to drain. See Polzo v. Cnty. of Essex, 196 N.J. 569, 583-84 (2008).

We are also satisfied that a sufficient factual foundation was established to support Walton's opinion that excess compaction of the soil and the possible leaching of topsoil into the native material at the bottom of the Basin were credible causes of the Basin's tendency to retain water. Walton opined that the use of a pan would compact soil and decrease the Basin's ability to drain. Though he did not observe the soil removal process and never conducted or examined compaction studies of the soil, he was entitled to rely on testimony concerning the repeat remediation attempts. He knew, from Mr. Zanghi's deposition testimony, that a pan had been used in the initial excavation of the Basin, and though Walton admitted that he had never personally observed a basin that did not drain due to a contractor's use of a pan during excavation, we cannot conclude that the trial court exceeded the bounds of sound discretion by allowing the jury to consider Walton's opinions.

Tamburro's next complaint is that the court erred by not allowing the jury to apportion fault among the various parties. We perceive no prejudice to Tamburro as a result of that determination. In anticipation of framing the issues for jury deliberation, the court conducted extensive discussions with counsel regarding the jury verdict sheet. Initially, the parties agreed that the jury should allocate fault among the various parties; however, counsel for Tamburro expressed concern that if fault were allocated without a proper limiting instruction, the jury might allocate to it responsibility for failures that were "greater than the value of what we contracted to do." Counsel elaborated, "I'm arguing that under the contract law, they can't give the plaintiff something that's going to put them in a better position [than their contract]." To address that concern, the trial court directed the attorney to draft an appropriate limiting instruction and present it to the court the following day before the charge was given to the jury.

The next day, the judge stated "Since everybody wants the allocation question submitted to the jury and you're unanimous on that, I'm going to submit it." Counsel for Tamburro objected, again emphasizing that "the scope of the contractors' contract is significantly different than the scope of the engineer" [and] "significantly different than the scope of the contract of the [construction manager]." Counsel argued that while the scope of damages attributable to Tamburro should be the cost of repairing the Basin to conform to the plans and specifications, the damages attributable to SNS Engineers would be the potentially greater cost of constructing a properly functioning Basin. The court agreed and attempted to create a verdict sheet that reflected that distinction. Articulating its agreement, the court stated:

THE COURT: And if the jury determines that this was properly designed, then conceivably what they will have to do is take a look at that damage board and say, "okay, how much is it going to cost to dig out what's ever in there and to restore it to the proper elevation" because I think that's the only allegation against your clients, isn't it -

TAMBURRO'S COUNSEL: That's correct.

THE COURT: - the elevation? Is there any other? . . . [T]hey dug it too deep, correct?



The court also noted that "[i]f the jury determines that [SNS Engineers] was not responsible, [but] that the contractors were responsible, the measure of damages . . . is the cost to restore the basin to conforming with the plans and specifications," and Tamburro's counsel agreed.

Eventually, however, and notwithstanding SNS Engineers's argument that the jury should be allowed to allocate percentages of damages attributable to each party, the court created a verdict sheet that asked the jury to find an amount of damages flowing from the design failures, if applicable, and another amount flowing from failures of other parties to construct the Basin according to the design. Tamburro's counsel acquiesced and agreed with the court's determination that while the engineer's damages might be greater, the damages attributable to the contractor defendants was the cost to comply with the plans and specifications presented. Thus, Hanifin's breach, if any, could be "lumped in with Tamburro and Zanghi[.]"

By that reasoning, the court resolved not to have the jury allocate responsibility among the three construction or contractor defendants, Tamburro, Zanghi and Hanifin. Rather, the court informed the attorneys that if the jury entered a no cause verdict against SNS Engineers and found more than one of the construction defendants liable, it would enter a judgment finding the construction defendants jointly and severally liable:

THE COURT: So I'm going to just let this go to the jury. We'll put the Hanifin question in there because if it doesn't go in there - it's in the case, so I can't unilaterally take it out,*fn10 but in terms of the allocation, if this comes - if the error in this trial is because there should have been an allocation among those three, they can retry the issue of the allocation, and that's okay with me. I'm not even sure there should be an allocation because on the three of them, they're purely contractual claims. Unlike the engineer that there'sreally a tort mix in there, the contractual claims are purely that[.]

On appeal, Tamburro argues that "joint and several liability*fn11 is inappropriate where Tamburro and Hanifin had separate contracts and therefore separate obligations."*fn12

According to Tamburro, that mistake requires a new trial. We disagree. Although the obligations of Hanifin and Tamburro differed, each undertook to provide a Basin in conformance with the plans and specifications, and the liability of each is measured by and limited to the amount required to satisfy that obligation.

While contracts that are not joint will not support an action against all defendants jointly, Board of Education of Newark v. Howard, 65 N.J.L. 75, 78 (Sup. Ct. 1900), we have generally recognized that "'New Jersey law favors apportionment of fault among responsible parties.'" Bolz v. Bolz, 400 N.J. Super. 154, 159 (App. Div. 2008) (quoting Verni ex. rel.

Burstein v. Stevens, 387 N.J. Super. 160, 206 (App. Div. 2006), certif. denied, 189 N.J. 429 (2007)). See also Boryszewski v. Burke, 380 N.J. Super. 361, 374 (App. Div. 2005) (citations omitted), certif. denied, 186 N.J. 242 (2006). Thus, "[o]ur jurisprudence has taken a pragmatic approach when giving effect to the conceptual differences between a breach of contract and a breach of a duty of reasonable care." Dunn v. Praiss, 139 N.J. 564, 577 (1995) (citing Pickett v. Lloyd's, 131 N.J. 457, 470 (1993)), for the proposition that "compensation should not depend on what label we place on an action but rather on the nature of the injury inflicted . . . and the remedies requested.").

Even if the fault of the construction defendants was susceptible to the allocation methodology employed by the Comparative Negligence Act (the Act), N.J.S.A. 2A:15-5.1 to -5.8, they each committed themselves to a contractual obligation to produce a basin compliant with the applicable plans. We note that the attention and effort devoted by the trial court to the preparation of a verdict sheet was commendable. The resulting verdict sheet directed the jury's deliberations and permitted it to determine distinct damage amounts, depending on whether the jury found the Basin was flawed due to design error or due to improper construction or both. Thus, the damages award appropriately took into account the more limited scope of the undertaking of the construction defendants as compared to the design engineer. It did not, however, reflect precisely the comparative fault of the various defendants. As the court described it, the verdict sheet lumped all fault of the construction defendants together. The jury found that the engineering defendant was not at fault, and that only two of the three contractor defendants were at fault for damages totaling $250,000. That sum represents "the amount of money, in a lump sum, that it will cost to restore the basin to the retention/detention basin specified in the existing plans and specifications."

"'Under contract law, a party who breaches a contract is liable for all of the natural and probable consequences of the breach of that contract.'" Totaro, Duffy, Cannova & Co. v. Lane, Middleton & Co., 191 N.J. 1, 13 (2007) (quoting Pickett, supra, 131 N.J. at 474). Thus, "the general rule with respect to building contracts is that the disappointed owner may recover the costs of completing the promised performance or making necessary repairs, unless under the facts it is impossible to do so or the costs of completion or repairs would constitute unreasonable economic waste . . . ." 525 Main St. Corp. v. Eagle Roofing Co., 34 N.J. 251, 255 (1961). Where, as here, a jury finds that a contractor's construction was defective, damages against that contractor are valued by "using the reasonable cost of remedying the defects" as calculated by the finder of fact. St. Louis, L.L.C. v. Final Touch Glass & Mirror, Inc., 386 N.J. Super. 177, 188 (App. Div. 2006).

In this case, the trial court assumed that the damages for Hanifin's breach of contract (to supervise the actions of the contractors and to facilitate communications) and Tamburro's breach of contract (to provide excavation services in the construction of a basin in compliance with plans and specifications) would be co-extensive, if not identical. They would both be responsible for the cost of restoring the Basin to comply with the plans and specifications. This was an appropriate interpretation of the legal principles regarding contract damages as applied to each defendant individually. It was not reversible error for the court to refuse to ask the jury to attempt to allocate percentages or to quantify the extent of damages caused by each breach. Instead, the trial court determined it would allow plaintiff to collect one-hundred percent of the damages from either party, noting that "even if it's not joint and several [liability], I don't believe that you have a right to pay the plaintiff less than the damages you caused to the plaintiff because there's another party that breached a contract and is responsible for those identical damages."

Thus, in imposing joint and several liability for two separate contract breaches, the court obviously was concerned primarily with the fact that the award should not duplicate damages for the same injury. See Murphy v. Implicito, 392 N.J. Super. 245, 269 (App. Div. 2007); DiMaria Constr., Inc. v. Interarch, 351 N.J. Super. 558, 574 (App. Div. 2001), aff'd, 172 N.J. 182 (2002). The court considered the statutory rules governing contributory negligence and joint and several liability for tort claims inapplicable because the only tort-based claims submitted to the jury related to SNS Engineers, whose conduct was found not to have caused or contributed to the malfunction of the Basin. The Board's claims against Tamburro and the other two construction defendants considered by the jury were based solely upon breach of contract theories.

Tamburro argues that joint and several liability was improper because "joint and several liability for two separate contracts runs afoul of basic contract principles." On the other hand, the only significant legal analysis undertaken by Tamburro is a cursory discussion of cases that interpret the Comparative Negligence Act, N.J.S.A. 2A:15-5.1 to -5.8, while Tamburro argues that "the [Comparative Negligence Act] and its concepts do not apply to the instant matter."*fn13

All of the parties acknowledge that the Comparative Negligence Act may extend to actions based on both breach of contract and negligence, see Dunn, supra, 139 N.J. at 577,*fn14 but none of the briefs discuss whether the trial court erred by failing to instruct the jury to apportion percentages of fault.

As we stated in Murphy, supra, 392 N.J. Super. 245 at 267-68, "[w]e have previously indicated that no material difference exists between different types of claims seeking relief for conduct proximately causing personal injuries, irrespective of . . . contract law or breach of a duty defined by tort law." We have also observed that "for purposes of contribution, a breach of a contractual duty proximately causing personal injury may 'be balanced against the negligence of another party so that their percentage responsibilities can be assessed . . . [in terms of] comparative fault.'" Id. at 268 (quoting Dunn, supra, 271 N.J. Super. at 324).

Notably, the verdict sheet asked the jury whether each party's breach caused "the malfunction of the drainage basin" and not whether it simply deprived the Board of what it was entitled to receive under each of its respective contracts. We acknowledge that the verdict rendered by the jury is enigmatic, if not, inconsistent. The perceived inconsistency is obviously the product of the jury's belief that the parties were all in some respect in breach of their respective duties or undertakings and that the breaches of Tamburro and Hanifin were partially responsible for the Basin's failure to drain. If the jury had been asked or allowed to allocate fault on the verdict sheet, the verdict would have been clearer. That it was not asked to provide such clarity is not fatal to the verdict.

In the next issue on appeal, Tamburro argues the trial court committed reversible procedural and substantive errors in denying its motion for judgment notwithstanding the verdict and its motion for a new trial. With regard to the asserted procedural errors, Tamburro presents a conclusory claim that the trial court "failed to engage in the analysis required by the court rules and applicable case law," and failed to "engage in the proper analysis." It does not cite to any particular portion of the trial court's legal analysis that it alleges was defective. In fact, it admits that the "trial court undoubtedly considered the motions seriously, allowed multiple submissions from the parties and entertained at least two separate oral arguments," and "also spent considerable time reviewing testimony."

The court disclosed the basis for its decision on the motion as follows:

I have to construe the evidence in the light most favorable to the parties opposing the motion. I have to give them the benefit of the evidence and all reasonable inference that can be drawn from that evidence.

I have to take into consideration the jurors' ability to assess credibility, and this all boils down . . . to this. . . . I don't have any problem at all with [the jury's no cause verdict against SNS Engineers] because, quite frankly, with the collective presentation against [SNS Engineers], there's a rational basis for the jury's finding . . . . [SNS Engineers] should have taken borings at the second site when it was relocated. That was one of the theories, but the failure to take those borings was not a cause of the basin's failure because of the topsoil issue, but the jury concluded that the topsoil was the cause of the failed basin, and they also concluded that Zanghi did what he was told to do by [Tamburro]; namely, put topsoil in the bottom of the basin.

That's analogous to [Tamburro's] argument that if someone follows the specifications, they're not liable. Zanghi, at [Tamburro's] direction puts the topsoil in there, and the jury concluded, if there was sufficient evidence for the jury to conclude the topsoil was the cause of the problem, this verdict is sustainable in my view. I'm not saying I would have agreed with that. I'm not saying that that's the way I would have resolved this case, but that's not . . . my role. . . .

And I'm probably going to look at this thing one more time over the weekend. . . . If there was evidence from which the jury could have concluded it was wrong to put the topsoil in, it was contrary to the plans and specifications and if they concluded that was the cause of this drainage basin [malfunction] and if they concluded that although Zanghi did it, Zanghi did it at the direction of Tamburro who had all the plans and specs - Zanghi just had this one- or two-page contract - how do I not uphold that verdict?

Before rendering its final decision, the court reiterated that it "want[ed] to look at this trial [transcript] again because I want to be absolutely certain that there was sufficient evidence that the topsoil was the cause of this basin [failing to drain], but if it was, I think this jury verdict is very understandable."

On October 9, 2009, without any additional explanation, the trial court denied Tamburro's motions for judgment notwithstanding the verdict and, in the alternative, for a new trial "for the reasons stated on the record" on October 2, 2009.

Rule 4:49-1(a), which governs motions for a new trial, provides that a court shall grant a motion for a new trial "if, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law." On appeal, the standard of review is substantially the same. R. 2:10-1; Jastram v. Kruse, 197 N.J. 216, 230 (2008). The appellate court "must afford 'due deference' to the trial court's 'feel of the case,' with regard to the assessment of intangibles, such as witness credibility." Ibid. (quoting Feldman v. Lederle Labs., 97 N.J. 429, 463 (1984)).

"The standard for granting a judgment n.o.v. is essentially the same as that applicable to the grant of a new trial motion." Pressler & Verniero, Current N.J. Court Rules, comment 3 on R. 4:40-2 (2012). "The purpose of JNOV is 'to correct clear error or mistake by the jury,' and not for the judge to 'substitute his [or her] judgment for that of the jury merely because he [or she] would have reached the opposite conclusion[.]'" Barber v. ShopRite of Englewood & Assocs., 406 N.J. Super. 32, 52 (App. Div.), (quoting Dolson v. Anastasia, 55 N.J. 2, 6 (1969), certif. denied, 200 N.J. 210 (2009)). "'The trial judge shall grant [a] motion [for JNOV] if, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law.'" Id. at 51 (quoting R. 4:49-1(a)).

Substantively, Tamburro argues that the trial court mistakenly "thought the matter was a 'damages case'" and allowed its mistaken belief to cloud its judgment with regard to both motions. Tamburro further argues that "the court's analysis [kept] returning to the fact that the basin did not meet the plaintiff's performance expectations," whereas it was only contractually bound to deliver a Basin that conformed with the plans and specifications. Tamburro also cited several facts it felt should have caused the trial court to grant both motions. They were: (1) that Walton, the Board's expert, did not know the condition of the Basin at turnover; (2) that Henbest believed that the Basin had been excavated to the correct elevation at turnover (though he did so based on an "eyeball" observation); (3) and that Walton admitted he had no knowledge of who performed the remedial measures to the Basin after turnover.

First, Tamburro does not sufficiently explain what it means by a "damages case" or how the trial court's treatment of the matter as a damages case impacted the verdict. As a result, that argument is incomprehensible and impossible to analyze.

Second, there is no merit to Tamburro's contention that the trial court assumed, in denying the motions, that Tamburro was contractually bound to provide anything other than a basin that conformed with the plans and specifications. During oral arguments, the court reiterated that the theory presented to the jury was that Tamburro's alleged breach of contract related to its failure "to build the drainage basin in accordance with the plans and specs," not, as Tamburro posits, the failure to provide a properly functioning basin. Moreover, both the jury verdict sheet and the discussions between counsel for Tamburro and the trial court concerning the verdict sheet, clearly reveal that the court understood and accepted that the damages attributable to Tamburro, if any, were limited to those necessary to rebuild the Basin according to the plans and specifications and not for design improvements.

Third, the jury was free to accept or reject evidence offered by Tamburro in finding Tamburro liable for a breach of contract. As the court noted, there was ample evidence to support the jury's verdict against Tamburro. For example, it was uncontested that Zanghi, at Tamburro's direction, lined the Basin with topsoil in direct violation of a note on the plans stating that the bottom of the Basin was not to be topsoiled. Walton testified that the placement of topsoil would have caused the Basin to retain water. The jury was therefore free to conclude that the topsoil was the original cause of the Basin's failure to drain, and that the remediation of that original mistake contributed to or was a significant cause of subsequent malfunctions.

Walton testified that Polistina's as-built survey revealed that at the time of trial, the Basin's depth was at least a foot and a half lower than the elevation specified in the plans and, as a result, was only six inches to a foot above the seasonal high water table. Meanwhile, there was evidence that Zanghi removed soil from the Basin. Thus, the jury was free to infer that Zanghi caused an elevation disparity by removing material from the bottom of the Basin without regrading to the proper level or with the appropriate amount of backfill. The jury was therefore entitled to hold Tamburro responsible for any overexcavation by Zanghi, because Tamburro was responsible for supervising Zanghi's actions and was contractually bound to deliver a basin that conformed with the plans and specifications.

Similarly, expert testimony was presented to establish that the Basin's failure was caused by overexcavation. Walton, relying on evidence that the bottom of the Basin was only six inches to a foot above the high water table, opined that was "a component of [the Basin's failure to drain], certainly." Scheidegg testified, without objection from Tamburro or any other party,*fn15 that the Basin's overexcavation was the "primary cause" for its failure to drain.

Thus, ample evidence supported the jury's verdict as to Tamburro, so it cannot be said that "given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law." Barber, supra, 406 N.J. Super. at 51 (quoting R. 4:49-1(a)).

Tamburro next argues that the Board failed by the close of its case-in-chief to present a prima facie case for breach of contract because it did not present evidence of damages arising from Tamburro's "independent actions." In deciding a motion for involuntary dismissal at the close of a plaintiff's case, the trial court's function "is quite a mechanical one. The trial court is not concerned with the worth, nature or extent (beyonda scintilla) of the evidence, but only the existence, viewed in the light most favorable to the party opposing the motion." Dolson, supra, 55 N.J. at 5-6. Thus, "[a] motion for involuntary dismissal only should be granted where no rational juror could conclude that the plaintiff marshaled sufficient evidence to satisfy each prima facie element of a cause of action." Godfrey v. Princeton Theological Seminary, 196 N.J. 178, 197 (2008) (citing Pitts v. Newark Bd. of Educ., 337 N.J. Super. 331, 340 (App. Div. 2001)). "[T]he essential elements of a cause of action for breach of contract [are] a valid contract, defective performance by the defendant, and resulting damages." Coyle v. Englander's, 199 N.J. Super. 212, 223 (App. Div. 1985).

The Board did, in fact, present a prima facie case of breach of contract during its case-in-chief. Garrison testified that Tamburro was bound by its contract to deliver a drainage basin that was built according to the specifications and drawings. Walton, meanwhile, provided testimony that the plans and specifications called for the Basin to have a bottom elevation of forty-eight feet, whereas the elevation as built was forty-six and a half feet, on average. Contrary to what Tamburro argues, it is of no moment that the specifics of Tamburro's contract were not introduced until Scheidegg testified. Garrison's general statement outlining Tamburro's contractual responsibilities, along with Walton's statement that those responsibilities had not been met, constituted more than a scintilla of evidence establishing breach.

There was more than a scintilla of evidence establishing both causation and damages. See Dolson, supra, 55 N.J. at 5-6. Walton opined that overexcavation - the substance of breach by Tamburro and Zanghi - was a cause of the Basin's failure to drain. Scheidegg's deposition was also read into the record during the Board's case-in-chief; he concluded that the Basin did not drain because "it's constructed too deeply." The damages attributable to Tamburro were the costs of reconstructing the Basin to comply with the plans and specifications, plus the costs of remedying damage to the Basin resulting from the breach, i.e., dewatering and removal of poorly draining materials.

Tamburro also argues it was nonsensical for the jury to find that its breach caused the Basin's malfunction, while at the same time finding that Zanghi's breach did not proximately cause the malfunction. In Tamburro's words, "[i]f Zanghi's actions - [such as] the use of the alleged 'heavy equipment' - were not found to be a cause of the malfunction of the basin, then Tamburro cannot possibly be libel [sic] for the supervision of those same actions." In response, both the Board and SNS Engineers argue that Tamburro did more than fail to supervise Zanghi; it also mistakenly directed Zanghi to topsoil the Basin, failed to check the Basin's depth, and chose Zanghi as its contractor.

A new trial on liability will be awarded where a verdict is "'so inconsistent with the evidence as to bespeak confusion or mistake on the part of the jury.'" Neno v. Clinton, 167 N.J. 573, 587 (2001) (quoting Menza v. Diamond Jim's, Inc., 145 N.J. Super. 40, 45 (App. Div. 1976)). For example, in Pappas v. Santiago, 66 N.J. 140, 143 (1974), the Court ordered a new trial where two cars collided and the jury entered a verdict finding that one of the drivers had been negligent but had not proximately caused the accident. The Court stated:

We do not know from the jury verdict just what negligent conduct or default it found Mrs. Palmieri to be guilty of, but in the circumstances of this case we cannot conceive of any act or omission amounting to negligence on the part of Mrs. Palmieri in the operation of her car that would not have contributed causally to the happening of the accident. On this basis the jury verdict as to Mrs. Palmieri, finding negligence but absence of proximate cause, was patently inconsistent. [Ibid.]

The rule applied by the Court in Pappas and in similar cases can be summarized as follows: Where the jury finds a defendant negligent and it is inevitable that such negligence would have contributed to the plaintiff's damages, a jury verdict finding no proximate cause will be reversed as "patently inconsistent." Ibid.; see also Neno, supra, 167 N.J. at 588 ("Assuming that defendant acted negligently, that conduct would have contributed to at least some of plaintiff's damages."); Giantonnio v. Taccard, 291 N.J. Super. 31, 45 (App. Div. 1996); Menza, supra, 145 N.J. Super. at 45-46.

Here, the jury's verdict could be reconciled on the theory that the jury may have concluded that Zanghi was an agent of Tamburro and, as such, it had no direct relationship with the Board or it was alternatively liable. See Tabloid Lithographers, Inc. v. Israel, 87 N.J. Super. 358, 362-65 (Law Div. 1965). See also N.J.S.A. 2A:53A-1, where the Joint Tortfeasor Contribution Law provides that "[a] master and servant or principal and agent are considered a single tortfeasor." The jury may have thought Zanghi was partially liable, but chose to find causation lacking because Zanghi only acted under the direction of Tamburro or because its only perceived alternative was to make Zanghi responsible for one-hundred percent of the damages from the breach. While the apparently inconsistent verdict might have been better understood if the jury had been permitted to allocate fault in a sensible manner, we decline to speculate further about why Tamburro was found liable while Zanghi, the subcontractor, was not.


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