FRANK CIOPPETTINI, JR. v. GADEGBEKU CONSULTANTS, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4835-04T14835-04T1

FRANK CIOPPETTINI, JR.,

Plaintiff-Appellant,

v.

GADEGBEKU CONSULTANTS,

Defendant-Respondent,

and

BEER & COLEMAN ARCHITECTS AND

ASSOCIATES, LLC; P.J.

CONSTRUCTION INC., JAK MANAGEMENT

CORPORATION, and SELECTIVE

INSURANCE COMPANY OF AMERICA,

Defendants.

________________________________________________________________

 

Argued September 13, 2006 - Decided October 12, 2006

Before Judges Lefelt, Parrillo and

Sapp-Peterson.

On appeal from the Superior Court of New

Jersey, Law Division, Somerset County,

Docket No. L-379-02.

James M. Hirschhorn argued the cause

for appellant (Sills, Cummis, Epstein &

Gross, attorneys; Mr. Hirschhorn, of

counsel and on the brief; Craig B.

Johnson, on the brief).

Daniel J. Cogan argued the cause for

respondent (Hoagland, Longo, Moran,

Dunst & Doukas, attorneys; Mr. Cogan,

of counsel; Joseph C. Liguori, on the

brief).

PER CURIAM

Plaintiff Frank Cioppettini had a custom-built family residence constructed. Beer & Coleman Architects and Associates were responsible for the architectural and design work, and Gadegbeku Consultants (Gadegbeku) was to provide some structural engineering services. The construction manager, JAK Management Corporation, was insured by Selective Insurance Company of America, and the framing contractor was P.J. Construction. After work was completed, plaintiff noticed that the windows in the sunroom were sagging and had spaces where the window frame met the house. Plaintiff sued all entities involved in the project for breach of contract, breach of implied warranties, and negligence. He also sued Selective, seeking insurance coverage for JAK who had defaulted. By the time this matter was orally argued before us, plaintiff had resolved all disputes with all parties except Gadegbeku. Therefore, on appeal, plaintiff only argues that the motion judge erred in granting summary judgment dismissing plaintiff's negligence claim against the engineer. We agree and reverse.

The motion judge, in granting summary judgment, found that Gadegbeku did not "prepare final design documents from which construction of the building in question was actually performed. . . . The final documents utilized in construction were not the product of Gadegbeku's work, but rather that of the defendant Beer and Coleman. . . ." Gadegbeku was not retained "to perform any design work, and, in, fact did not perform any design work." Therefore, relying on Sykes v. Propane Power Co., 224 N.J. Super. 686 (App. Div. 1988), the judge found that because Gadegbeku "never received the final construction documents by the entity who drafted them[,]" he could not be found liable.

Furthermore, according to the judge, Gadegbeku was not retained "to perform supervisory work, [or] make or act as a consultant for final construction documents." The judge, quoting from Sykes, id. at 694, concluded that "the duty to foresee and prevent the particular risk of harm from materializing should be commensurate with the degree of responsibility with which the engineer has agreed to undertake." Ibid.

Additionally, the judge believed that "plaintiff cannot establish a breach of a professional obligation by the reports it has submitted and by the testimony that appears in the record before this Court." The judge believed plaintiff's experts to be in agreement "that the design contained in the construction documents was structurally sound [and that] there [were] no deficiencies in its construction documents. The problems with the construction [were] the result of P.J. construction's failure to conform to the plans."

Finally, the judge found that both of plaintiff's expert reports were insufficient to withstand summary judgment. The judge stated that "plaintiff's reliance on a fact that there was an on-site inspection [by the experts] with a factual basis is insufficient to satisfy the requirement for an expert opinion. An expert's opinion must relate to generally accepted standards and not standards personal to a witness." In short, the judge believed that both experts offered nothing but net opinions.

Thus, the motion judge concluded that Gadegbeku was hired by the architect to perform only a limited function with limited liability and, in any event, the structural problems were caused by the framing contractor's failure to follow what the judge believed were accurate and sound construction documents. Additionally, plaintiff's attempt to establish his case through experts failed because the opinions advanced were net. We disagree with the motion judge on several grounds.

Preliminarily, the judge appears to have prematurely resolved two factual disputes. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). The material factual disputes, present on the record, involved the scope and terms of Gadegbeku's oral contact with the architect, and the soundness of the construction documents.

The judge apparently accepted Gadegbeku's assertion that his responsibility was merely to provide structural capacity calculations for the house, and found that he "did not perform any design work." At deposition, however, when the architect was asked "who was responsible for the structural design involved in carrying the point loads in the sunroom wing to the concrete masonry unit foundation wall," he answered "Gadegbeku." According to the architect, Gadegbeku's structural design responsibility extended "to everything in between the roof [and] the bottom of the foundation wall." Furthermore, the construction drawings, though not sealed and signed by Gadegbeku, utilized his address stamp and identified Gadegbeku as the "Structural Engineer."

The confusion over the scope and terms of the oral contract was caused by the parties' failure to comply with N.J.S.A. 45:4B-10(b), which requires a written contract between an architect and engineer when the architect provides "the design of engineering systems [which include structural systems] in connection with an architectural project. . . ." Ibid.; N.J.S.A. 45:4B-3.

Additionally, although Gadegbeku and the architect claimed the construction documents were adequate, plaintiff's expert structural engineer disagreed. Sullivan, a licensed professional engineer with substantial experience, personally inspected the building and reviewed both the preliminary and final construction drawings that Gadegbeku had examined, and identified specific structural elements that were insufficiently identified on the drawings for building purposes.

For example, in his report, Sullivan charged that the structural inadequacies were caused by the architect's failure "(including Gadegbeku) to clearly show the intent of the load bearing components on the drawings." Sullivan indicated that the architect's "Design Documents did not show squash blocks within their designs to address the load transfer from upper level bearing wall configurations past the TJ1 [truss joist] . . . . Furthermore, Design Document details provided by [the architect] did not show the transfer post located below each bearing wall adjacent to the rim joist." Sullivan specifically noted that "[t]he requirements for proper point load transfer and bearing wall load transfer were not sufficiently shown on the Design Documents." Sullivan explained that "[w]ithout these transfer posts in place, there were no structural components to transfer the point loads from the structure above through the TJ1 space to the foundation." He stated that the lack of transfer posts and deficient transfer posts contributed to the warping of the sunroom.

In his affidavit opposing summary judgment, Sullivan also stated that the "Typical Wall Section Detail Drawing [that was created by Gadegbeku] fails to show sufficient detail for the framing construction above the foundation wall." Sullivan further explained that "[t]he lack of detail in this Typical Wall Section Detail Drawing, in part, prevented the framing contractor from having sufficient knowledge to construct the subject conditions in accordance with the design intent."

Sullivan did state in deposition that if the construction documents had been adhered to, "the building would comply with the documents and I would not anticipate a problem." Later, in his deposition, however, he reaffirmed his report finding among other defects that the document "details didn't show the installation of the transfer posts."

The trial court rejected Sullivan's opinion as net. We disagree. In our view, Sullivan's opinion was grounded in the record and in supporting authority. See Scully v. Fitzgerald, 179 N.J. 114, 129 (2004). He based the defects he observed on his inspection of the building as well as his review of the documents, and provided the "whys and wherefores" underlying his opinion. Beadling v. William Bowman Assocs., 355 N.J. Super. 70, 87 (App. Div. 2002). He related the defects in the framing to the final construction drawings and Gadegbeku's failure to review the final drawings. Finally, in support of his opinion, he also relied upon statutory and regulatory bases.

Plaintiff, therefore, provided the motion judge with sufficient evidence to create factual disputes regarding the scope of Gadegbeku's employment and the insufficiency of the design documents. Brill, supra, 142 N.J. at 540. This is so especially because we must review the evidence in a light most favorable to plaintiff. R. 4:46-2.

There was little direct evidence that Gadegbeku's contributions to the project were deficient. In his report, as one example, Sullivan charged that "Gadegbeku assigned a value of 2.56 kips (2,560 pounds) to the floor joist allowable load . . . [when] Georgia-Pacific [provides that] the value should not exceed 2 kips (2,000 pounds)." The expert does not demonstrate, however, why this claimed mistake would be professional negligence. In addition, Sullivan also charged that the Typical Wall Section Detail Drawing, prepared by Gadegbeku and supplied to the architects, included insufficient detail to properly instruct the framing contractor. Here, also Sullivan did not link these alleged defects to malpractice.

In any event, plaintiff's professional negligence claim against Gadegbeku appears to rely almost exclusively upon the contention that Gadegbeku was obligated to review and correct any structural defects in the final construction documents. The motion judge relied upon Sykes, supra, 224 N.J. Super. at 694, to conclude that Gadegbeku had no duty to supervise development of or review the construction drawing. Sykes is, however, distinguishable from this case.

William Sykes was killed during a chemical explosion. Id. at 690. Sykes was concerned with whether the engineer owed any duty to Mr. Sykes for his wrongful death. Id. at 693. In Sykes, the engineer was hired to prepare a graphical layout of the engineering plant for the Department of Environmental Protection to show how the plant chemicals were carried, stored and discharged. Id. at 694-95. The engineer's work had nothing to do with plant safety. Id. at 695.

Here, Gadegbeku participated in determining the structural adequacy of the very edifice that was claimed to be structurally defective. Under these circumstances, there is little question that Gadegbeku owed the owner of the building a duty of care. Levine v. Wiss & Co., 97 N.J. 242, 246 (1984) ("One who undertakes to render services in the practice of a profession or trade is required to exercise the skill and knowledge normally possessed by members of that profession in good standing in similar communities." (citing Restatement (Second) of Torts 299 (1965))); Goldberg v. Housing Auth. of Newark, 38 N.J. 578, 583 (1962) (to decide whether it is fair to impose a duty, the court weighs "the relationship of the parties, the nature of the risk, and the public interest in the proposed solution.").

Therefore, the question in this case is not whether any duty of care was owed plaintiff, as was the issue in Sykes. Instead, the crucial question is whether the pertinent standard of care requires a structural engineer, such as Gadegbeku, under the circumstances of this case, to supervise or review the final construction drawings.

In professional negligence claims, "[i]t is generally recognized that . . . 'the standard of practice to which [defendant] failed to adhere must be established by expert testimony,' and that a jury generally lacks the 'requisite special knowledge, technical training and background to be able to determine the applicable standard of care without the assistance of an expert.'" See Rosenberg v. Cahill, 99 N.J. 318, 325 (1985) (quoting Sanzari v. Rosenfeld, 34 N.J. 128, 134-35 (1961)).

Sullivan claimed the pertinent standard of care required Gadegbeku to review the drawings to ensure they properly reflected the calculations and any other suggestions he had offered concerning the house's structural integrity. Sullivan cited N.J.A.C. 13:40-9.1 as support for this proposition. See McComish v. DeSoi, 42 N.J. 274, 282 (1964) (dealing with safety codes); Costantino v. Ventriglia, 324 N.J. Super. 437, 444 (App. Div. 1999), certif. denied, 163 N.J. 10 (2000). Sullivan appears to have offered this rule as evidence of practices "generally prevailing in the industry, and as such it provides support for the opinion of the expert concerning the proper standard of care." McComish, supra, 42 N.J. at 282. In addition, plaintiff also contends that Gadegbeku's violation of this rule may be considered by the jury as evidence of negligence. See J.S. v. R.T.H., 155 N.J. 330, 349 (1998); Carrino v. Novotny, 78 N.J. 355, 359 (1979)).

N.J.A.C. 13:40-9.1 was adopted in 1985 and has never been amended. It requires "[a] licensee in responsible charge of an engineering . . . project [to] render regular and effective supervision to those individuals performing services which directly and materially affect the quality and competence of engineering . . . work rendered by the licensee." Ibid.

When proposing this rule, the Board of Professional Engineers and Land Surveyors explained that its purpose was to address "'absentee supervision' of employees by licensed professionals." 16 N.J.R. 2068 (August 6, 1984). The Board was concerned with instances "[w]here the professional fail[ed] to adequately supervise preparation of a project and [was] unavailable to visit the site, if necessary." Ibid. The Board felt that in such instances, "the final product may contain deficiencies not apparent through cursory review before filing." Ibid.

In addition, upon adoption of the rule, the Board explained that the term "responsible charge" was used in the rule "to refer to a level of competence expected of an individual who may be placed in 'the control and direction' of an engineering or land surveying project." 17 N.J.R. 1134 (May 6, 1985). The Board believed that its use of the term was consistent with several legislative enactments. See ibid. (citing N.J.S.A. 45:8-28(g), 35(1)(a), 35(2)(a), 40(3)).

It seems reasonable that an engineer would want to ensure, in some fashion, that his or her structural recommendations were accurately utilized by the architect. We note also that N.J.A.C. 13:27-5.5(b), pertaining to the professional practice and procedures of architects, permits architects to sign or seal professional work prepared by another professional "if the architect has reviewed such portion, has coordinated its preparation, and intends to be responsible for its adequacy." Ibid. In addition, while the N.J.A.C. 13:40-9.1 proposal referred to the Board's concern about absent supervision of "employees," the rule as adopted applies to "individuals," which presumably could include licensed architects. Ibid.

In any event, we choose to defer consideration of whether N.J.A.C. 13:40-9.1 applies to engineers providing services to architects. In our opinion, the factual disputes present on the record, the misapplication of Sykes, and the relevance of Sullivan's opinions require reversal of the summary judgment. We believe that construction of N.J.A.C. 13:40-9.1 would be better addressed after fact finding by the trier of fact on the disputed issues that are present, and after the record is more precisely focused on engineering and architectural practices that may be affected by this rule. Therefore, we reverse the motion judge's grant of summary judgment, restore plaintiff's negligence claim against the engineer, and remand for further proceedings.

 
Reversed and remanded.

(continued)

(continued)

13

A-4835-04T1

 

October 12, 2006