On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-4259-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 . . ...