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New York Court of Appeals Finds that Plaintiffs Moving for Partial Summary Judgment on Liability are not Required to Prove the Absence of their Own Comparative Negligence

Plaintiff Carlos Rodriguez, a garage utility worker for the New York City Department of Sanitation, was standing between a parked car and a rack of tires when a sanitation truck, which was trying to back into a garage, crashed into the front of the parked car, propelling it into plaintiff and pinning him up against the tires.  The plaintiff sued the City of New York for negligence and moved for partial summary judgment on liability.  The Supreme Court denied plaintiff’s motion and the First Department of the Appellate Division affirmed, finding that plaintiff had failed to make a prima facie showing that he was free of comparative negligence.  The question in Rodriguez v. City of New York, 31 N.Y.3d 312 (2018), was whether plaintiffs moving for partial summary judgment in a comparative negligence action must establish the absence of their own comparative negligence.

The Court of Appeals answered this question in the negative: “To be entitled to partial summary judgment[,] a plaintiff does not bear the double burden of establishing a prima facie case of defendant’s liability and the absence of his or her own comparative fault.”  Rodriguez, 31 N.Y.3d at 315, 324-25.  In so holding, the Court of Appeals recognized that under New York’s comparative negligence statute, a plaintiff’s culpable conduct “shall not bar recovery” because it “is not a defense to any element (duty, breach, causation) of plaintiff’s prima facie cause of action for negligence”; rather, such conduct only serves to diminish “the amount of damages otherwise recoverable.”  Id. at 317-19.  The Court also noted that since a plaintiff’s culpable conduct is an affirmative defense to be pleaded and proved by the party asserting it, a rule requiring plaintiffs to disprove their culpability would flip the burden of proof and would thus be inconsistent with the plain language of the comparative negligence statute.  See id. at 318.  The Court found that such an outcome would not be consistent with the legislative history of the comparative negligence statute, which indicated that the law was designed to bring “New York law into conformity with the majority rule and represent[ed] the culmination of the gradual but persistent erosion of the rule that freedom from contributory negligence must be pleaded and proven by the plaintiff.”  Id. at 321.

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A Grocery Store is Not Liable for a Transitory Spill

A court dismissed a plaintiff’s Complaint filed against ShopRite for a fall due to debris in the main walkway of ShopRite’s parking lot in Monroe County, Pennsylvania. Karten v. ShopRite, Inc., No. 4416 CV 2016, (C.P. Dec. 3, 2018). ShopRite’s summary judgment was granted and the case against it was dismissed. The court held that ShopRite had no actual or constructive notice of the condition to find liability as it was a transitory spill.

A possessor of land can be liable for a dangerous condition on its premises if it created the condition, knew of the condition or should have known of the condition by the exercise of reasonable care. Restatement (Second) of Torts §343. A transitory spill is one that was created only moments before causing harm. Therefore, a possessor of land may not be liable for a transitory spill that it did not create, have an opportunity to rectify, or warn invitees of the condition.

In Karten, the plaintiff had just left the ShopRite and was walking on the main walkway of its parking lot when she slipped and fell on what she described as, “dark, slippery and smelled of rotten banana.” The plaintiff was unable to state how the substance got on the ground, or how long it had been there. ShopRite moved for summary judgment arguing the condition was a transitory spill and it had neither actual nor constructive notice to warrant liability.

The plaintiff argued that ShopRite had actual notice of the condition, because it had received prior complaints regarding debris in the parking lot. The court disagreed. The court held that general knowledge of a similar condition is not akin to actual knowledge of a transitory spill.

The plaintiff then attempted to argue that ShopRite had constructive notice of the spill. The plaintiff was also unsuccessful in this argument. The court dismissed any of the plaintiff’s arguments on constructive notice. The court found that the plaintiff had no evidence of constructive notice and the argument was just manufactured in opposition to ShopRite’s motion.

Ultimately, the court granted ShopRite’s motion for summary judgment. The plaintiff was unable to identify sufficient evidence to find that ShopRite had actual or constructive notice of the transitory spill. The plaintiff failed to meet her burden and the Complaint was dismissed.

ShopRite was protected from liability, because the court held that the condition was transitory. The spill could have occurred only seconds before the plaintiff fell. Therefore, it would be unjust for ShopRite to be responsible for something it could not have had control over.

Lack of notice is a powerful defense in a slip and fall case. A possessor of land is not the ultimate insurer of any injury that occurs on its property. The law still requires that a possessor of land be aware of a potential dangerous condition, or should have been aware of it for it to be held liable. Therefore, a possessor of land may not be liable for damage caused by a transitory spill if there is no evidence that could prove how long the condition existed before causing harm. Therefore, proper questioning during discovery is necessary to determine whether a plaintiff is able to prove how long a dangerous condition existed, or if a possessor of land should have been aware of the condition by the exercise of reasonable care.

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Appellate Division Revisits Contract and Insurance Policy Interpretation

The Appellate Division on January 22, 2019 decided an interesting case regarding insurance coverage which has been approved for publication. The matter is Katchen v. GEICO et al., No. A-5685-16T4, 2019 WL 272926 (App. Div. Jan. 22, 2019).

In December 2015, Plaintiff Katchen was injured in a motor vehicle accident. Significantly, at the time of the accident, he was operating a Harley-Davidson motorcycle which he owned. Before settling with the other driver or that driver’s $25,000 policy limit, Katchen submitted a UIM claim under three separate insurance policies he maintained:

1. A motorcycle policy issued by Rider Insurance Company;
2. A commercial automobile policy issued by Farmers Insurance Company of Flemington; and
3. A personal auto policy issued by GEICO.

GEICO “disclaim[ed] coverage” pursuant to an exclusion in Section IV of its policy, which addresses both uninsured motorist, or “UM,” and underinsured motorist, “UIM,” coverages.  That provision stated:

“LOSSES WE PAY.

We will pay damages for bodily injury and property damage caused by an accident which the insured is legally entitled to recover from the owner or operator of an uninsured motor vehicle or underinsured motor vehicle arising out of the ownership, maintenance[,] or use of that vehicle.”

However, Section IV also contained an exclusion of coverage for “bodily injury sustained by an insured while occupying a motor vehicle owned by an insured and not described in the declarations and not covered by the Bodily Injury and Property Damage liability coverages of this policy.”

Because while the motorcycle was owned by Plaintiff Katchen, it was not listed on the policy issued and GEICO determined that it did not constitute an “owned auto,” which the policy defined as a “vehicle described in this policy for which a premium charges shown for these coverages.”  As a result, GEICO denied the claim.

Plaintiff Katchen then filed a declaratory judgment action naming the three carriers, seeking a declaratory judgment that the UIM coverage of all three carriers applied to the subject accident. GEICO responded by filing a motion urging the court to find its “owned motor vehicle exclusion” to be “valid, unambiguous and enforceable.” The Motion Court denied that motion, finding that the language of GEICO’s policy was ambiguous.

The parties subsequently came to an agreement that Rider and Farmers would pay their respective pro rata share of the total of $975,000.00 in UIM coverage owed to Plaintiff Katchen, and GEICO would pursue this appeal. If GEICO did not prevail, it would pay its pro rata share as well. Plaintiff, Rider and Farmers all opposed GEICO’s appeal.

Accordingly, the Appellate Division indicated that “in this appeal, we consider whether an auto insurance form may combine uninsured (UM) and underinsured motorist (UIM) coverage in a single section and include exclusions not listed on the policy’s declaration page. We also consider if an insurer may exclude UIM coverage for an accident involving a vehicle owned by the insured but not covered under the subject policy.”

The Appellate Division accordingly held that “Because we find the exclusion does not violate public policy or result in ambiguity, we reverse.”

On appeal, contract interpretation is de novo.  Manalapan Realty, L.P. v. Twp. Committee of Manalapan, 140 N.J. 366, 378 (1995).  When an insurance contract terms are clear and unambiguous, the Court interprets the policy as written, using the “plain, ordinary meaning” of the words used.  Zacarias v. Allstate Insurance Co., 168 N.J. 590, 595 (2001).  But where an ambiguity arises, the policy is interpreted in favor of the insured and against the insurer. President v. Jenkins, 180 N.J. 550, 562-63 (2004).

An ambiguity exists when “the phrasing of the policy is so confusing that the average policyholder cannot make out the boundaries of coverage.”  Weedo v. Stone-E-Brick, Inc., 81 N.J. 233, 247 (1979).

Insurance policies are to be interpreted narrowly, but the provisions within are presumed valid and effective if “specific, plain, clear, prominent and not contrary to public policy.”  Princeton Ins. Co. v. Chunmuang, 151 N.J. 80, 95 (1997).

The Respondents argued that GEICO’s policy, which addressed both UM and UIM coverage in the same section, violated various statutory mandates. GEICO responded that the exclusion unambiguously bars UIM coverage for loss sustained by Plaintiff while operating a motor vehicle he owned but did not insure under GEICO’s policy.

The Appellate Division agreed with GEICO, finding that the policy was not ambiguous.  For example, the Court observed that any ordinary reasonable person understands that a motorcycle is a type of motor vehicle.

While acknowledging that the exclusions did not appear on GEICO’s declaration page, the Appellate Division noted that requiring such would result in even more “fine print” and run the risk of making insurance policies more difficult for the average insured to understand, and would also “eviscerate the rule that a clause should be read in the context of the entire policy.”

Thus, the Appellate Division stated that “The failure to list the exclusion at issue on the declaration page does not automatically render the contract ambiguous. Reading the GEICO policy in its totality, we conclude the exclusion is clear and unambiguous. The fact that the exclusion is not mentioned on the declaration sheet does not bar its enforcement.”

Accordingly, the Katchen opinion is a very instructive recent summary by the Appellate Division of the procedure that will be utilized in analyzing contracts and insurance policies.

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Court Dismisses Pothole Case against County

Plaintiff Luz Cruz (“Cruz”) tripped and fell in a pothole when crossing River Avenue in Camden, New Jersey. She broke her fifth metatarsal of her left foot and sued the County of Camden for her injuries. In Cruz v. Camden County, 2019 N.J. Super. Unpub. LEXIS 385 (App. Div. Feb. 19, 2019), one of the issues was whether the County had prior notice of the pothole.

Cruz and her friend drove a U-Haul truck to pick up a couch in an apartment on River Avenue, a County owned road. They parked the truck across the street from the apartment. They did not see a pothole while walking to the apartment. As they were carrying the couch to the truck, Cruz stepped into the pothole in the middle of the road and fell. About two months after the accident, plaintiff’s expert measured the pothole as about 18 inches in length, 6 inches wide, and 3 inches deep.

The County had no prior notice of this pothole’s existence. The County’s Department of Public Works (“DPW”) employees are tasked with looking for potholes and repair them upon their discovery. In addition, the County has a dedicated phone line and email address for complaints as to potholes or other road problems. Also, police, fire, and public safety personnel will report road problems. However, no complaints had been called in as to this particular pothole or on this block of River Avenue in the 10 years before the accident.

As for constructive notice, plaintiff was unable to establish how long the pothole had been present. Cruz had been there the year before at the same address and did not notice the pothole. Plaintiff retained an expert who did not determine or estimate when the pothole had formed.

The County filed a motion for summary judgment, arguing that the plaintiff had failed to show that the County had actual or constructive notice of the pothole, as required under the Tort Claims Act to prove a claim against a public entity for a dangerous condition. The trial court agreed and granted the motion, finding that the plaintiff was unable to prove any time frame for the pothole or that the pothole was “of such an obvious nature that the public entity, in exercise of due care, should have discovered the condition and its dangerous character.”

The plaintiff appealed to the Appellate Division, arguing that the County had actual or constructive notice of the pothole and failed to repair it and that the County’s failure to maintain a major County road was palpably unreasonable. The Appellate Division rejected these arguments and upheld the trial court’s decision.

The Appellate Division noted that public entity liability is restricted under the Tort Claims Act. For liability to attach for an injury caused by a dangerous condition, a plaintiff must establish that a public entity “had actual or constructive notice of the dangerous condition” in “a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.”

The Court agreed with the trial court that there was no actual notice. The question was whether the plaintiff had proven that the County had constructive notice of the pothole. To prove constructive notice, the plaintiff must establish “that the condition existed for such time that the [County], in exercising due care, should have discovered the condition and its dangerous condition.” The Appellate Division found that was no evidence of how long the pothole existed before the accident. Hence, the plaintiff could not prove constructive notice either. Without such notice, the Court found that the plaintiff’s claim fails.

The Appellate Division also found that the County’s inaction in repairing River Avenue was not palpably unreasonable. The plaintiff failed to show that it was not palpably unreasonable for the County to fail to fix a pothole that was harmless for a vehicle to pass over to prevent a pedestrian to trip over in a portion of the road that was not a designated crosswalk.

This case is illustrative of the difficulty that plaintiffs face in pursuing pothole claims against public entities. Because potholes can pop up in a day, depending on weather conditions, unless the public entity has actual notice of the pothole, it can be very difficult for a plaintiff to prove constructive notice.

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Betsy G. Ramos, Esq. is a member of the firm’s Executive Committee and Co-Chair of the Litigation Group. She is an experienced litigator with over 25 years’ experience handling diverse matters. Her practice areas include tort defense, insurance coverage, Tort Claims Act and civil rights defense, business litigation, employment litigation, construction litigation, estate litigation and general litigation.

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New Jersey Governor Signs New Minimum Wage Law

One of Governor Murphy’s key electoral platforms during his gubernatorial campaign was his goal to increase New Jersey’s minimum wage.  That electoral promise became a reality just a few short weeks ago. On February 4, 2019, Governor Murphy officially signed into law the New Jersey Minimum Wage Bill. The law will ultimately increase the minimum wage rate in New Jersey from $8.85 (currently) to at least $15.00 by 2024. The wage increase progression will be as follows:

  • At least $10/hour by July 1st, 2019
  • At least $11/hour by January 1st, 2020
  • At least $12/hour by January 1st, 2021
  • At least $13/hour by January 1st, 2022
  • At least $14/hour by January 1st, 2023
  • At least $15/hour by January 1st, 2024

Most notably, the above progression and schedule does not apply to very small businesses, defined as employers with five or fewer employees. Such employers will not have to pay $15.00 an hour to their employees until 2026. Further, the law includes a provision allowing employers to take a “tip credit” against their minimum wage obligations up to a certain level but ultimately the hourly rate earned by the employee must still reach whatever the then mandated minimum wage level is at that time. Obviously, the first compliance date of which employers must be immediately aware is July 1. Prior to that time, employers must take the necessary internal steps of ensuring that all employees are receiving this upgraded minimum wage by that required date.  Thereafter, employers will then need to ready themselves for the next increase happening approximately six (6) months later raising the minimum wage again. With all the graduated changes under the law, employers would be wise to calendar these important dates and proactively ensure that your workplace complies with these new evolving minimum wage requirements.

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Ralph R. Smith, 3rd is Co-Chair of the Employment and Labor Practice Group. He practices in employment litigation and preventative employment practices, including counseling employers on the creation of employment policies, non-compete and trade secret agreements, and training employers to avoid employment-related litigation. He represents both companies and individuals in related complex commercial litigation before federal states courts and administrative agencies in labor and employment cases including race, gender, age, national origin, disability and workplace harassment and discrimination matters, wage-and-hour disputes, restrictive covenants, grievances, arbitration, drug testing, and employment related contract issues.

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Under Narrow Circumstances, NJ Supreme Court Permits Filing of Late Notice of Claim When Claimant Identifies Correct Public Entity in Notice of Claim but Serves Wrong Entity

This case involves two fatalities following a multi-vehicle accident. Both Timothy O’Donnell and his 5 year old daughter B.O. were killed. Pamela O’Donnell, Timothy’s widow, retained an attorney who prepared a Tort Claims Act notice and identified the correct public entity in the Tort Claims Act notice but then served it upon the wrong entity. As it turned out, a separate claimant involved in the same accident did file and serve a timely tort claims act notice upon the correct entity. The New Jersey Supreme Court was asked to decide whether these circumstances constituted extraordinary circumstances so as to permit the filing of a late notice of claim.

Timothy O’Donnell was driving westbound on the New Jersey Turnpike with his daughter B.O. in the back seat. As they approached a tollbooth at Interchange 14C, Timothy’s vehicle was rear-ended by a vehicle travelling at a high rate of speed, propelling his vehicle onto the opposite side of the Turnpike and into oncoming traffic. Timothy was struck head on by an ambulance driven by Eliasar Morales, who was injured in the accident. Both Timothy and his daughter were killed.

Timothy’s widow, Pamela O’Donnell, hired counsel who served a notice of tort claim upon the Bureau of Risk Management of the State of New Jersey. The notice identified the New Jersey Turnpike Authority (“NJTA”) as a responsible party and alleged that its actions caused the deaths of Timothy and their daughter. The notice claimed that Timothy’s vehicle would not have been propelled to the other side if the Turnpike had installed safety barriers to separate opposing lanes of traffic. That notice was timely served upon the State but not the NJTA.

Thereafter, O’Donnell’s widow obtained new counsel, who served an amended notice of claim on the NJTA 197 days after the accident. Two days later, she filed suit against the NJTA. The NJTA filed a motion to dismiss the claim based upon the failure to timely file a notice of claim in 90 days, as required pursuant to N.J.S.A. 59:8-8. O’Donnell opposed the motion and filed a cross-motion seeking permission to file a late notice of tort claim, alleging that the NJTA would not suffer substantial prejudice and extraordinary circumstances justified the untimely filing. (N.J.S.A. 59:8-9 permits, upon the discretion of the trial judge, a notice of claim to be filed within one year after the accrual of the claim, if the public entity “has not been substantially prejudiced” and if the claimant can show upon affidavit “sufficient reasons constituting extraordinary circumstances for his failure to file notice of claim” within the 90 day time period.)

The trial judge found that O’Donnell had demonstrated extraordinary circumstances and allowed her to file a late notice of claim. This decision was appealed to the Appellate Division, which reversed. It found that the attorney’s failure to serve the proper entity did not constitute extraordinary circumstances and the State had no obligation to forward the wrongly filed notice to the NJTA.

O’Donnell filed a petition for certification, which the Supreme Court granted. It also permitted O’Donnell to expand the record to include the Morale’s notice of tort claim, which had been timely served upon the NJTA. Morale’s notice provided the details of the accident, as well as the allegation that the NJTA failed to install roadway safety barriers. It also attached the police report as to the incident.

The Supreme Court found that, in considering the totality of circumstances, that O’Donnell had demonstrated extraordinary circumstances. The Court noted that O’Donnell did not sit on her rights. She did retain counsel who, within the 90 day time period, prepared a proper notice of tort claim. The notice listed the NJTA as the responsible party and alleged that it was NJTA’s failure to install safety barriers to prevent vehicles from crossing into oncoming traffic that caused the deaths of her husband and daughter.

Further, the Court noted that the NJTA did receive a timely notice of claim from Morales, which notice of claim was nearly identical. It provided all of the details of the accident and the same theory of liability. His notice attached the police report, which explicitly listed Timothy and B.O. and indicated they died in the accident.

The Supreme Court analyzed the two tort claims notices together, in combination with the circumstances surrounding this terrible accident, and found that the NJTA was notified of its potential liability within the 90 days of the accident. Utilizing the Morales’ notice, the NJTA was able “to investigate potential claims from the accident, prepare a defense, and formulate a plan to remedy promptly any Turnpike defect.” The Court found that when O’Donnell finally served her amended notice of claim, the NJTA was already aware of its potential liability and was not prejudiced by the untimely filing.

It seemed clear that the Supreme Court was limiting its holding to the “unique facts” presented in this case: that O’Donnell quickly pursued her claims against the NJTA, identifying the NJTA as the correct responsible party but improperly serving the State as opposed to the NJTA; that another claimant from the same accident, Morales, served a timely notice of claim on the NJTA, describing the exact circumstances of the accident and the same theory of liability against the NJTA; and that O’Donnell filed for leave within one year following the accident to file a late notice of claim.

The Supreme Court refers to this matter as a “rare” case, in which the claimant had presented adequate proofs indicating that the totality of facts and circumstances are extraordinary and, hence, the Court found it “consistent with the Tort Claims Act, its legislative history, our precedent, and the interests of justice to allow the claimant to pursue his or her claims against the public entity.” Thus, the Supreme Court reversed the Appellate Davison’s decision and reinstated the O’Donnell’s complaint.

This case can be found at O’Donnell v. New Jersey Turnpike Authority, 2019 N.J. LEXIS 42 (Jan. 14, 2019). Its holding will be of limited application. This was a narrow holding and cannot be construed to carte blanche excuse a plaintiff who names the correct public entity in a tort claims act notice, but serves the wrong entity. It seems that the tipping factor for the Court was that another claimant in the same accident had timely filed a Tort Claims Act notice, giving the NJTA notice of the O’Donnell fatalities. Hence, there was no prejudice to the NJTA in permitting the late notice to be filed.

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Betsy G. Ramos, Esq. is a member of the firm’s Executive Committee and Co-Chair of the Litigation Group. She is an experienced litigator with over 25 years’ experience handling diverse matters. Her practice areas include tort defense, insurance coverage, Tort Claims Act and civil rights defense, business litigation, employment litigation, construction litigation, estate litigation and general litigation.

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Third Party Harassment and the Law

Whenever I conduct anti-harassment training for employers, one of the concepts I address is the employer’s obligation to protect employees from sexual and other forms of harassment by third parties who are neither employed by, nor affiliated with, the employer but who are in regular contact with the employer’s employees. Recently, in Hewitt v. BS Transportation of Illinois, No. 18-712, 2019 U.S. Dist. LEXIS 6407 (E.D. Pa. January 10, 2019), a federal judge was unwilling to dismiss a claim filed by an employee against his employer alleging that his employer failed to take effective corrective action to address harassing conduct happening to the employee at the hands of an employee of one of Defendant’s customers.

As I explain during my trainings, even though third parties such as the customer in Hewitt are not technically under the control of the employer, the employer’s duty to provide a workplace free of harassing conduct extends to making sure that visitors, vendors, or other third parties do not engage in harassing conduct against company employees.

In Hewitt, Plaintiff claimed that while loading fuel at a customer’s site during the course of his employment transporting fuel for his employer, a customer’s employee made sexual advances towards him, including grabbing Plaintiff’s buttocks, shoving him into the trailer of his freight car, and asking him if he “liked that?” According to Plaintiff, he demanded that his employer address the issue, but it did not do so adequately because, though advising the customer to address the issue, the harassment nevertheless continued.

The employer sought to dismiss the harassment allegations lodged against the company by arguing that, because the harassment happened by a non-company employee, there was no liability under the federal Title VII law. The court rejected this argument. While recognizing that the issue was one of first impression in this federal appeal circuit, the district judge nevertheless refused to dismiss the harassment charge because appeal courts in other circuits have in the past allowed such third party complaints, reasoning that where the employer has knowledge of the harassment against the employee, it must do something to investigate and stop it consistent with the requirements of Title VII.

In the current “Me Too” age, employers are wise to understand the full scope of their obligations to prevent harassing conduct towards its employees, and this duty includes addressing employee complaints about harassing conduct of third parties where the conduct detrimentally impacts the working environment for the company employee. Accordingly, with the new year just beginning, it is a prime opportunity for employers to reeducate its workforce through trainings about both the evils of harassment, and on the legal duties imposed upon employers to provide workplaces free of such illegal conduct.

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Ralph R. Smith, 3rd is Co-Chair of the Employment and Labor Practice Group. He practices in employment litigation and preventative employment practices, including counseling employers on the creation of employment policies, non-compete and trade secret agreements, and training employers to avoid employment-related litigation. He represents both companies and individuals in related complex commercial litigation before federal states courts and administrative agencies in labor and employment cases including race, gender, age, national origin, disability and workplace harassment and discrimination matters, wage-and-hour disputes, restrictive covenants, grievances, arbitration, drug testing, and employment related contract issues.

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Municipality Held Not Liable for Fall over Bench at its Baseball Field

The plaintiff Anthony Victor filed suit against the Borough of Red Bank and its Board of Education after he tripped over the dugout bench that had been moved behind the bleachers of the municipality’s baseball field. The plaintiff had been at the Red Bank Count Basie Field to watch his grandson’s baseball game. The issue in Victor v. Borough of Red Bank, A-1393-17T2 (App. Div. Sept. 27, 2018) was whether the placement of the bench behind the bleachers constituted a dangerous condition of public property so as to impose liability on the defendants.

The bench had been moved between fields to provide players a place to sit during games and practices. The bench was about 21 feet long and was held up by 4 vertical supports which ended in a perpendicular metal bar 2 inches in diameter. Each of the bars extended 15 inches beyond the back of the bench. The bench had been placed behind some metal bleachers on a concrete pad next to one of the fields. While it was not placed in an actual walkway, the defendants did concede that some spectators cut across the pad to reach the batting cages.

The plaintiff was walking behind the bleachers across the pad to reach the batting cages and another field when his right foot tripped on the last support. He did not see the bench’s metal supports as he walked because he was not looking down.

The defendants filed for a summary judgment, contending that the plaintiff did not demonstrate that the property was in a dangerous condition and the placement of the bench was not palpably reasonable. The trial judge concluded that the bench was not a dangerous condition to those who made proper observations and granted the motion to dismiss the case.

Pursuant to the Tort Claims Act, N.J.S.A. 59:4-2, for a public entity to be held liable for a dangerous condition of its property, the plaintiff must establish that the property “was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred.” Further, the plaintiff must prove that the dangerous condition was created by an employee of the public entity or that the public entity had actual or constructive notice of the dangerous condition.

Even if a plaintiff is able to prove that there existed a dangerous condition of public property that caused the injury, the statute further provides that no liability would be imposed “upon a public entity for a dangerous condition of its public property if the action the entity took to protect against the condition or the failure to take such action was not palpably unreasonable.”

The defendants did not dispute that the plaintiff was injured by tripping over the bench. However, they focused on whether the concrete pad, where spectators were known to walk, was in a dangerous condition and, if so, whether the failure to correct it was palpably reasonable. The Appellate Division noted that the statute defined “dangerous condition” as “a condition of property that creates a substantial risk of injury when such property is used with due care in a manner in which it is reasonably foreseeable that it will be used.”        

The Court found that the trial court was correct that the plaintiff failed to establish that the Borough’s placement of the bench behind the bleachers rendered the concrete pad in a dangerous condition to a person who foreseeably would walk behind the bleachers to access the batting cages or one of the other fields. Plaintiff had admitted that there was nothing obscuring his view of either the bench or the bleachers. He tripped over one of the bench supports after walking almost the entire length of the bench.            

Because it found that the plaintiff did not use “due care” in the foreseeable use of the property, the Appellate Division agreed that the property was not in a dangerous condition. Further, it found that the plaintiff had presented no proof that the placement of the bench or the failure to move it was “palpably unreasonable,” which term is defined as “manifest and obvious that no prudent person would approve of its course of action or inaction.” The Court also noted that if this case had been brought against a private owner without statutory immunities, the obvious nature of the bench and its supports would make it difficult for the plaintiff to recover against an owner. Hence, the Appellate Division affirmed the trial court decision, dismissing the case against the defendants.

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Dress Codes and Docking of Pay

When I examine employee handbooks as part of my legal review of such documents, a frequently seen policy involves dress codes and the inclusion of possible employee sanctions for not following such a policy.  Most policies I review inform employees that if they fail to follow the dress code they will be sent home and not be paid for the time it takes them to return to work.  Are such policies legal?  The answer may surprise you.

As such policies apply to non-exempt hourly employees, not paying for the time spent away from work while bringing their attire in line with company policies is indeed a legally appropriate sanction.  Why? Because by their very status, hourly non-exempt employees get paid for only actual time worked.  Thus, if a Company wants to dock the offending employee wages as a sanction for violating a dress code policy, there is no violation of wage and hour laws: the employee simply clocks out and clocks back in when returning in the proper work attire and does not get paid for the time he/she is not working.

On the other hand, for exempt employees, these same rules do not apply.  Exempt employees get paid a weekly or bi-weekly salary, and so long as the employee performs services at any juncture of the work day the employee is entitled to be paid the daily portion of his salary for that day.  So, if the exempt employee is found to have violated a dress code policy after already performing work on a particular day, the employee must be paid that entire day’s salary even if sent home and told to return in suitable clothing.

Moreover, be aware that there are very strict rules for deducting any monies from the salary of an exempt employee, and the allowable grounds for making such deductions typically involve the violation of serious workplace rules.  Now, here is another legal catch-even if the employer has grounds for sanctioning an exempt employee by withholding a portion of his/her salary as punishment, any deduction that is for less than a full day’s pay is illegal.  Thus, in our hypothetical, not only would a deduction from pay  not be warranted because dress code violations are usually not serious enough to meet wage and hour requirements, but deducting pay for only the brief time out of work to correct the problem also does not satisfy the full day deduction rule.  Thus, while even exempt employees can be sanctioned for violating dress codes, docking pay is not going to be one of those options in most situations.

As this example shows, sometimes wage and hour rules can create unexpected traps that an employer can easily fall into, and not realize there has been a legal violation.  Thus, anytime your business is thinking about making disciplinary deductions from pay, make sure you consult with an experienced employment lawyer first to avoid such unexpected wage and hour pitfalls.

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Is Forty Years A Long Enough Wait to Strengthen the Intoxication Defense?

One of the many defenses employers can raise in a workers’ compensation case is that of employee intoxication.  N.J.S.A. 34:15-7 states that when an injury or death is intentionally self-inflicted, or when it is a matter of intoxication, the employee is not entitled to compensation.  However, the intoxication defense is rarely successful in New Jersey in part because of how the statute is currently written.

New Jersey Senate Bill 1420 proposes changes to N.J.S.A. 34:15-7.  While some of the changes are cosmetic in nature, and largely address grammar or structure, the specific purpose of the bill is to address the role of the intoxication defense in workers’ compensation claims.  If passed, intoxication would be the presumed cause of an accident in which an employee was proven intoxicated. This is a drastic change from the current practice, which requires intoxication to be the sole cause of the accident to be a successful defense.

Tlumac v. High Bridge Stone and the Intoxication Defense

At present, New Jersey Courts follow the interpretation set forth in Tlumac v. High Bridge Stone.  In Tlumac, the petitioner was in a tractor-trailer accident and sought to recover benefits.  The employer asserted the intoxication defense as blood tests indicated the petitioner was likely still intoxicated from the prior evening at the time of the accident.  The Supreme Court of New Jersey held that “the statutory defense of intoxication requires that intoxication be the sole cause of the accident to bar recovery for workers’ compensation benefits.”  Tlumac v. High Bridge Stone, 298 N.J. 567 (2006).  As such, the petitioner in Tlumac was awarded benefits despite his intoxication, as other factors such as the early morning hour or his long work shifts could have contributed to the accident.

In practice, this interpretation of the statute makes it more difficult for employers to claim an intoxication defense and bar an intoxicated employee from recovery.  Currently, if an employee can present other potential contributing factors to the injury he or she will likely be awarded compensation, regardless of their blood alcohol content.

New Jersey Senate Bill 1420

Partially in response to Tlumac, as well as the case law since that time, New Jersey Senate Bill 1420 was sponsored in February 2018 by Senator Christopher J. Connors and was referred to the Senate Labor Committee.  Among other edits, the bill proposes adding a ‘Part B’ to the present statute, which would state “[i]f the employee was intoxicated when the injury or death occurred, it shall be presumed that the injury or death was caused by the intoxication and the employee shall be barred from receiving workers’ compensation.”

A Shifting of Burdens

The Court in Tlumac concluded that the New Jersey Legislature intended for benefits to be “readily and broadly available” to injured employees, and thus placed the burden on the employers to show by a preponderance of the evidence that intoxication was the sole cause of the work related injury.  This interpretation makes it nearly impossible for an employer to deny claims based on employee intoxication, because it is not the blood alcohol level which will bar compensation, but the complete lack of any other potential contributing factor.

Were New Jersey Senate Bill 1420 to be made law, the employer would no longer need to prove that intoxication was the sole cause of the accident because the statute would plainly state a presumption that the injury was caused by the intoxication.  In effect, the burden of proof would shift from the employer back to the employee.  The employer would still bear the burden of showing that the employee was intoxicated at the time of the injury.  However, once intoxication was established, the employee would now need to overcome a statutory presumption that the intoxication was the cause of the accident, instead of simply providing possible alternatives.  While this bill still leaves some room for interpretation with the court, especially as to the extent of the burden of proof and what type of evidence or situation would be required to overcome the new statutory presumption, that shift would give a greater weight to this defense.

Application of New Jersey Senate Bill 1420

As an example, a petitioner has filed a claim petition against a respondent, claiming that the employee was in a motor vehicle accident and struck a pothole, causing the vehicle to flip.  The employee petitioned the courts for workers’ compensation benefits as this accident occurred while working.  The respondent denies the matter, asserting the intoxication defense, as the employee’s blood alcohol content was .13 at the time of the accident.

Under the Tlumac test, the respondent would need to prove that the sole cause of the accident was the petitioner’s intoxication.  If the petitioner showed that the pothole was a contributing factor and was a reason for the accident, the employee would still be awarded benefits under current case law.

If New Jersey Senate Bill 1420 is enacted, the outcome of that case would shift in favor of the respondent.  As soon as the respondent established the blood alcohol content was above the legal limit, it would be presumed that the accident was a result of the petitioner’s intoxication.  The petitioner would now need to prove that their intoxication was not the cause of the accident or be barred from recovery under statute.

How Likely Is This Bill to Become a Law?

Legislative intervention has been a long time coming in regard to this provision of the workers’ compensation statute.  This specific bill, however, is extremely ambitious and, given the nature of the proposed changes, this version of the bill is unlikely to make it out of committee.  In fact, this is the second time it has been proposed in recent history, with the first attempt being in February 2016.  It did not pass then, and it is still unlikely to pass now, as labor unions strongly oppose it.

A change of this magnitude will likely be viewed as too restrictive for a system with the goal of compensating injured employees.

Middle Ground and Compromise

Given that N.J.S.A. 34:15-7 has not been updated since January of 1980, it is definitely time for a change.  However, change comes in small stages, not radical shifts.  While workers’ compensation is based on the law, a lot of this practice is about compromise.

While the statute was created to protect workers’ rights, these laws are also meant to be fair for both parties.  We are more likely to see a law pass that focuses on changing the burden, or the recovery, in small yet impactful ways.  For example, a bill proposing a bar to recovery if intoxication is a substantial cause of the accident, or a bill proposing a decrease in award if the employee was intoxicated, would be far more likely to pass than what is currently proposed.  In either case, the intoxication defense would become something far more reasonable again, instead of a pipe dream for employers to pursue.

Conclusion

New Jersey Senate Bill 1420 would create a powerful shift in how the intoxication defense is litigated in workers’ compensation, but that type of change is unlikely to be approved.  A “substantial cause” bill might be a better alternative.

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