Pfenninger v. Hunterdon Central Regional High School

770 A.2d 1126, 167 N.J. 230, 2001 N.J. LEXIS 187

• Court: Supreme Court of New Jersey
• Decided: March 13, 2001
• Status: Published

Opinions

PER CURIAM.

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 plaintiffs requests for discovery of other documents involving O’Sullivan’s responsibility to the Board on related construction projects.¹ 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.

I

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 338 N.J.Super. 572, 576-81, 770 A.2d 1173, 1176-79 (2001), as well as in Justice Coleman’s dissenting opinion. Post at 245-48, 770 A.2d at 1134-36. 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 plaintiffs 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 plaintiffs 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 plaintiffs 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, 754 A.2d 1177 (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.

II

We address separately and in detail plaintiffs 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 soecer/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?

A: Perforated.

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?

A: Yes.

Q: By definition?

A: Pretty much, yes.

Q: What is polyethylene pipe?

A: It is a plastic 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 the surface and put into the trench?

This perforated corrugated polyethylene pipe?

A: It could have, sure.

The Board first ordered the pipe from Aaron & Company (Aaron), which erroneously shipped thirteen-foot lengths of six- and eight-inch non-perforated PVC pipe instead of perforated corrugated polyethylene pipe. PVC pipe is a rigid pipe made in shorter lengths, and requires an individual who is installing the pipe to connect the pipes in the trench. Pfenninger discussed the nonconforming shipment with Barry Imbowdin, the high school’s supervisor of grounds and maintenance, and Imbowdin agreed that the pipe was “wrong” and should be exchanged for the correct pipe. Thereafter, Imbowdin called Aaron and told them that Pfenninger received the wrong pipe and needed an exchange. However, Aaron never sent Pfenninger a complete order of conforming pipe.²

On August 9, 1994, the Board ordered the pipe required for the job from a different supplier, Modern Concrete Septic Tank Co. (Modern). Two days later, Modern sent forty-seven ten-foot lengths of six-inch pipe and thirty-seven twenty-foot lengths of eight-inch pipe. The eight-inch pipe conformed to the specifications because it was perforated, corrugated, and flexible. However, the six-inch pipe, although perforated, did not conform because it was not corrugated or flexible. Under pressure from the Board to complete the project before the start of the school year, Pfenninger decided to use the nonconforming pipe and entered the trench to connect the sections of pipe. Robert Shinkle who worked with Pfenninger on the job site stated that the pipe was rigid and had to be connected “every 10-feet or so.” Similarly, Lisa Pfenninger, Pfenninger’s widow, stated that the PVC pipe was not flexible, “difficult to connect,” and required Pfenninger to enter the trench. According to David Brong, Pfenninger’s employee who witnessed the accident, Pfenninger was connecting the non-conforming ten-foot long six-inch pipe in the trench when the trench collapsed.

Ill

“Negligence is conduct which falls below the standard established by law for the protection of others against an unreasonable risk of harm.” Restatement (Second) of Torts § 282 (1965). A person acts negligently when he or she does not take reasonable precautions to prevent causing harm to another. Id. § 284. To determine whether a defendant’s conduct is negligent, we consider what a “prudent man” would have done in the defendant’s circumstances. Weinberg v. Dinger, 106 N.J. 469, 484, 524 A.2d 366 (1987). In addition to showing that a defendant failed to act with reasonable care, a plaintiff must show that a defendant owed the injured party a duty of care. Kelly v. Gwinnell, 96 N.J. 538, 548, 476 A.2d 1219 (1984). Traditionally, courts have determined the circumstances under which a defendant owes a legal duty to another. Carvalho v. Toll Bros. & Developers, 143 N.J. 565, 572, 675 A.2d 209 (1996). Similarly, the scope of the duty owed is a matter of law. Kelly, supra, 96 N.J. at 552, 476 A.2d 1219.

We recognize that a court should not treat questions of duty in a conclusory fashion because “ “whether a duty exists is ultimately a question of fairness. The inquiry involves a weighing of the relationship of the parties, the nature of the risk, and the public interest in the proposed solution.’ ” Id. at 544, 476 A.2d 1219 (quoting Goldberg v. Housing Auth. of Newark, 38 N.J. 578, 583, 186 A.2d 291 (1962)); see Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439, 625 A.2d 1110 (1993); see also Rappaport v. Nichols, 31 N.J. 188, 205, 156 A.2d 1 (1959) (stating that “policy considerations and the balancing of conflicting interests are the truly vital factors in the molding and application of the common law principles of negligence”); Wytupeck v. Camden, 25 N.J. 450, 462, 136 A.2d 887 (1957) (concluding that “duty must of necessity adjust to the changing social relations and exigencies and man’s relation to his fellows”). That weighing process is “fact-specific and principled; it must lead to solutions that properly and fairly resolve the specific case and generate intelligible and sensible rules to govern future conduct.” Hopkins, supra, 132 N.J. at 439, 625 A.2d 1110.

The common law recognizes the differences between civil actions for breach of contract and for tort. “Tort obligations are [ ] obligations that are imposed by law on policy considerations to avoid some kind of loss to others. They are obligations imposed apart from and independent of promises made and therefore apart from any manifested intention of parties to a contract or other bargaining transaction.” W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 92, at 656 (5th ed.1984). Thus, “if a relation exists which would give rise to a legal duty without enforcing the contract promise itself, the tort action will lie, otherwise not.” William L. Prosser, Handbook of the Law of Torts § 33, at 205 (1st ed. 1941).

Thus, in a contractual relationship, an individual may be hable in tort if he or she undertakes “gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things.” Restatement (Second) of Torts § 323 (1965). In this ease, the Board and Pfenninger entered into a contract for the installation of a drainage remediation system for Hunterdon High School’s baseball and soceer/lacrosse fields. As part of that contract, the Board was required to provide Pfenninger with perforated corrugated polyethylene pipe. Although the record is silent on whether the Board knew the purpose for the perforated corrugated polyethylene pipe, the record demonstrates that O’Sullivan, the project’s architect, knew that that specific pipe could be installed above ground and without having someone enter the trench. Therefore, O’Sullivan’s knowledge can be imputed to the Board because the record demonstrates that O’Sullivan was the Board’s agent and presided over the Board’s three-phase project to renovate Hunterdon High School’s athletic fields. See Handleman v. Cox, 39 N.J. 95, 104, 187 A.2d 708 (1963) (stating that “it is well settled that a principal is charged with the knowledge of his agent or servant respecting matters lying within the scope of the duties, activities, and responsibilities entrusted to him by the principal”) (citations omitted).

Acting within its scope of authority, O’Sullivan not only prepared the plans and specifications for the field drainage project, but it solicited bids from prospective contractors and made recommendations to the Board. Accordingly, a reasonable jury could find that the Board’s failure to supply the correct pipe to Pfenninger not only constituted a breach of the Board’s contractual duty, but also a breach of the Board’s duty of care to provide the pipe specified in O’Sullivan’s drawings that would diminish significantly Pfenninger’s risk of harm.

A jury also could find that the Board’s failure to supply Pfenninger with a complete set of perforated corrugated polyethylene pipe was a proximate cause of Pfenninger’s death. In tort cases “[liability depends not only on the breach of a standard of care but also on a proximate causal relationship between the breach of the duty of care and resultant losses.” People Exp. Airlines, Inc. v. Consolidated Rail Corp., 100 N.J. 246, 264, 495 A.2d 107 (1985). Our Court has defined proximate cause as “that combination of ‘logic, common sense, justice, policy and precedent’ that fixes a point in a chain of events, some foreseeable and some unforeseeable, beyond which the law will bar recovery.” Ibid. (quoting Caputzal v. Lindsay Co., 48 N.J. 69, 77-78, 222 A.2d 513 (1966)). Because the Board failed to supply Pfenninger with flexible, perforated corrugated polyethylene pipe that could be assembled out of the trench, Pfenninger was required to enter the trench to install the non-flexible pipe. Accordingly, a reasonable jury could find that the Board’s delivery of rigid, non-flexible pipe created a foreseeable risk of harm to Pfenninger that was not so remote as to bar recovery.

We' acknowledge that the record suggests that Pfenninger may have been negligent in not bracing or shoring the walls of the trench as required by the contract. Therefore, if a jury found that the Board and Pfenninger were both negligent and that each of their respective negligent conduct constituted a proximate cause of the accident, then the jury would evaluate their conduct and apportion fault accordingly.

IV

As modified, the judgment of the Appellate Division is affirmed. The matter is remanded to the Law Division for trial on plaintiffs claim that the Board’s negligence in providing Pfenninger with nonconforming pipe was a proximate cause of his death. The Law Division is also ordered to provide Pfenninger with further discovery, consistent with this opinion, relating to Pfenninger’s claim that the Board and O’Sullivan negligently supervised Pfenninger’s company in the excavation and piping of the trench, such further discovery to be without prejudice to defendants’ right to renew their motion for summary judgment on the issue of negligent supervision after such discovery has been provided.

So ordered.

Chief Justice PORITZ and Justices STEIN, LONG, and ZAZZALI join in this opinion. Justice COLEMAN filed a separate dissenting opinion in which Justices VERNIERO and LaVECCHIA join.

1 As our dissenting colleague observes, post at 249-51, 770 A.2d at 1137-38, the discovery issue is not raised in defendants’ petitions for certification, the Appellate Division having ruled in their favor on that question. Plaintiff, who was the prevailing party in the Appellate Division, did not file a protective cross-petition, see R. 2:12—3(b), to present that issue directly to this Court. Nevertheless, the Court has the benefit of the parties full.briefing of the issue before the Appellate Division. In view of the majority’s determination to remand the matter to the Law Division for trial on the issue of the Board's alleged negligence in supplying Pfenninger with nonconforming drainage pipe, we are persuaded, in the interests of efficient case management, that we also should address and resolve the discovery issue because our disposition will require that the Law Division order that additional discovery be conducted before the trial commences. See R. 2:12-11.

2 The record indicates that Aaron exchanged some of the six-inch piping for six-inch perforated pipe. However, the record is unclear whether the pipe from the second shipment was corrugated polyethylene pipe. The record suggests that Aaron could not fulfill Pfenninger’s request because it did not have conforming pipe in stock.