Though the Supreme Court remanded the case for further discovery, John King ultimately prevailed by obtaining a dismissal by summary judgment for his client.
John H. King, argued the casue for appellants A.J. O'Sullivan Architects, Andrew J. O'Sullivan, C.J. O'Sullivan, Kenneth R. Quabeck and C.J. Ostergaard. 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 presented three primary issues. The first issue was 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 was whether the trial court abused its discretion in denying plaintiff's requests for discovery of other documents involving O'Sullivan's responsibility to the Board on related construction projects. The third issue concerned 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 cannot join in the majority's opinion, which 'give[s] plaintiff yet another bite of this thoroughly-chewed apple, ... [because] [t]he route to that result converts us from the Court of last resort, to some sort of super rescue-mission.'"
A majority of the Justices ruled that the matter was to be remanded to the Law Division for trial on plaintiff's claim that the Board's negligence in providing Pfenninger with nonconforming pipe was a proximate cause of his death. The Supreme Court also ruled that the Law Division was 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, but that such further discovery would be without prejudice to defendants' right to renew their motion for summary judgment on the issue of negligent supervision after such discovery had been provided.
In a blistering dissent opinion, Justice Coleman wrote, "I cannot join in the majority's opinion, which 'give[s] plaintiff yet another bite of this thoroughly-chewed apple, ... [because] [t]he route to that result converts us from the Court of last resort, to some sort of super rescue-mission.'"
Justice Coleman wrote, "[t]he majority has concluded that the trial judge abused his discretion in denying plaintiff's request for expanded discovery, and therefore remands this case. The Appellate Division rejected that claim. Yet, the majority's opinion reopens the discovery even though neither party has raised that issue before this Court. Ordinarily, this Court refrains from ruling on issues not raised in a petition or cross-petition for certification. In order to reopen the discovery, the majority's opinion has reinstated the dismissed complaint. Because I believe the majority has committed grievous error, I dissent."
Following a remand to the trial court to complete the discovery as instructed in the majority's opinion, a summary judgment motion on behalf of the O'Sullivan defendants was refiled and granted by the trial court. Plaintiff did not appeal.
The entire opinion of the Supreme Court can be found here:
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