Carvalho v. Toll Bros. & Developers

In Carvalho v. Toll Bros. & Developers, 143 N.J. 565, 573, 675 A.2d 209 (1996), a construction site accident case, the Township of West Windsor retained an engineering firm (the engineer) to prepare plans for and supervise the progress of a sewer service construction project. During the construction, a trench in which an excavation subcontractor's employee was working collapsed and the employee was killed. Carvalho, supra, 143 N.J. at 569, 675 A.2d 209. The employee's widow sued the engineer, among others, alleging that the engineer had breached its duty to maintain safe conditions at the worksite. Id. at 572, 675 A.2d 209. Applying general negligence principles, the Carvalho Court concluded that the engineer owed plaintiff a duty to exercise reasonable care to avoid the risk of harm that resulted in the worker's death. Id. at 577, 675 A.2d 209. The Court recognized and discussed the factors previously noted, observing that the engineer was contractually required to be at the site everyday to monitor the progress of the work. Id. at 577-78, 675 A.2d 209. In addition, the Court pointed out that the contract between the township and the general contractor for the project gave the engineer the authority to stop the work at any time, id. at 576, 675 A.2d 209, remarking that the engineer's supervisory responsibility "necessarily entailed the observation of existing conditions and the actual performance of the work undertaken by the workers at the site." Id. at 574, 675 A.2d 209. The Court further adverted to the fact that the engineer was aware that similar trenches had collapsed in other areas of the construction site several times due to unstable trench conditions. Id. at 576, 675 A.2d 209. The Court determined that the engineer's responsibilities for ensuring compliance with the plans and rate of work progress created an "overlap of work-progress considerations and work-safety concerns" justifying imposition of a duty of care to prevent the risk of harm. Id. at 575, 675 A.2d 209.