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Court Not Required to Charge Comparative Negligence Where No Evidence that Subcontractor’s Employee Acted Unreasonably

By on October 9, 2015 in Blog with 0 Comments

Plaintiff, the employee of a subcontractor, sued the general contractor for negligence after he suffered serious injury while working at the jobsite.  In Fernandes v. DAR Development Corp., 2015 N.J. LEXIS 811 (N.J. 2015), the Supreme Court of New Jersey considered whether the negligence of an employee injured in a workplace accident may be submitted to the jury.

Plaintiff was installing a sewer pipe on a residential construction site when the wall of the trench in which he was working collapsed, burying him up to his chest.  The jury returned a verdict in favor of the Plaintiff after the court rejected the general contractor’s request to instruct the jury on comparative negligence.  The jury’s verdict was later affirmed by the Appellate Division.

Plaintiff presented evidence that the general contractor violated Occupational Health and Safety Act regulations, which required a general contractor to prevent cave-ins by installing a trench protection system known as a trench box.  In response, the general contractor presented evidence that Plaintiff was an experienced trench worker who was well aware of the hazards associated with excavation and the necessary safety precautions.

The general contractor argued that the jury should be permitted to consider Plaintiff’s negligence based on his entry into the trench on the day of the accident, which it reasoned was unreasonable conduct in light of Plaintiff’s extensive excavation experience, his understanding of the hazards associated with trench excavation, and his occasional responsibility for deciding when it was necessary to use trench protection.  Plaintiff countered that, as a matter of public policy, comparative negligence had no place in a trial dealing with injuries sustained by a worker while performing his assigned task.  Plaintiff further argued that the evidence adduced at trial did not suggest that Plaintiff unreasonably proceeded in the face of a known risk.

In 1973, the New Jersey Legislature adopted the Comparative Negligence Act, which allowed a plaintiff to recover so long as his negligence was not greater than the negligence of the person against whom recovery is sought.  If the injured party is permitted to recover, his damages will be diminished by the percentage of negligence attributable to him.  Under the Appellate Division’s decision in Kane v. Hartz Mountain Industries, Inc., 278 N.J. Super. 29 (App. Div. 1994), this rule extends to an employee who is injured in a workplace accident and sues a third person in an ordinary negligence action.  Under Kane, the inquiry is whether the plaintiff failed to use the care of a reasonably prudent person under all of the circumstances either in incurring the known risk or in the manner in which he proceeded in the face of that risk.

The Supreme Court noted that a jury may consider a plaintiff’s negligence only when the evidence adduced at trial suggests that the plaintiff was somehow negligent and that negligence contributed to the plaintiff’s damages.  Whenever a party asserts a plaintiff is negligent, the defendant must prove that the plaintiff’s negligence contributed to the accident or was a substantial contributing factor to the injuries sustained.

Here, the Supreme Court found it abundantly clear that Plaintiff did not proceed unreasonably in the face of a known risk.  There was no evidence that Plaintiff knew that surrounding conditions were such that the risk of collapse was increased.  Plaintiff received no training about workplace safety from the general contractor or his employer.  Furthermore, Plaintiff had no opportunity to independently assess the stability of the trench.

The Supreme Court found that Plaintiff’s boss was the “competent person” on the jobsite, who thus bore the duty of inspecting the excavation work to determine if a cave-in was likely.  Regardless of Plaintiff’s years of experience or actual knowledge of the danger of this particular excavation, the burden of deciding when and where to take protective measures rested squarely with his boss, the “competent person,” and with the general contractor.  Because there was no evidence that Plaintiff failed to act with the care of a reasonably prudent person in choosing to complete his assigned task on the day of the accident, the Supreme Court affirmed the judgment of the Appellate Division.


About the Author

About the Author:

Mr. Tejada focuses his practice in the representation of clients in business disputes arising from breaches of contract, complex financial transactions, investment fraud, real estate acquisition and development, and ownership disputes. Practice includes the defense of commercial entities in matters involving insured claims including commercial torts, tort defense, class actions, and general liability.


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