Delivery Person Owes No Duty to Business Owners and Employees When Placing Items in a Designated Delivery Area

July 11, 2012

A delivery person has no duty to warn business owners and employees when making a delivery and placing items in the general area designated for such deliveries, according to an unpublished decision by the Appellate Division in Fry v. Pepsi Bottling Group, et als., A-5775-10T3. The Court found the hazards at issue, sixteen canisters of soda and C02 delivered to a tavern and placed near the kitchen, were both expected and obvious, and therefore, no duty to warn existed.

The plaintiff, who was employed as a cook, struck her leg on one of the canisters placed in a narrow passage near the tavern’s kitchen. However, she had walked through the area about twenty minutes before the incident without a problem. According to the tavern owner, the delivery company was instructed to the put the canisters in that location to keep them “out of the way.”

The Court rejected the argument that the placement of the canisters was similar to the five-foot wide puddle on which an employee slipped at issue in LaRussa v. Four Points at Sheraton Hotel, 360 N.J. Super. 156 (App. Div. 2003) which was caused by a significant amount of melting snow tracked into a hotel kitchen by a delivery person. In LaRussa, the Court determined that in analyzing the totality of the circumstances, the delivery person did owe a duty to notify hotel personnel of the hazard created by the melting snow. The large puddle created a risk of harm that was obvious and easily foreseeable to the delivery person, whose actions created the dangerous condition. Yet the water was both unexpected and difficult for an employee walking through the hotel kitchen to see. Therefore, the Court in Fry concluded that since the general placement of the canisters was expected and posed no hidden danger, no duty may be imposed on the delivery person to notify the tavern owner or employees that such a delivery had been made.

— Allison Krilla, Esq.

Willful OSHA Violation Not Sufficient to Overcome Workers’ Compensation Bar

July 2, 2012

The New Jersey Supreme Court has ruled in Van Dunk v. Reckson Associates Realty, A-69-10, that a willful violation of OSHA regulations is not enough to permit an injured worker to overcome the workers’ compensation bar and pursue a tort action against his employer. The Court held that the workers’ compensation bar on civil tort suits prohibits an injured employee from filing a direct claim against his employer without a showing that a workplace safety violation was substantially certain to cause injury or death.

In Van Dunk, the plaintiff was a construction worker injured in a trench collapse as a result of what OSHA deemed a “willful violation” of its excavation safety regulations by his employer.  Based in part on this OSHA finding, the plaintiff filed suit against his employer.  In dismissing plaintiff’s claim against his employer, the Court held that the finding of a willful violation of OSHA regulations was not conclusive in analyzing whether the employer committed an intentional wrong, which would allow the plaintiff to overcome the workers’ compensation bar. Further, the Court maintained that the conduct prong of the two-part substantial-certainty test requires more than a mere likelihood or probability that the violation of a safety protocol would result in injury or death. Instead, the plaintiff must show that an objectively reasonable basis exists for the conclusion that a violation was almost certain to cause injury or death.

Should you have any questions concerning the impact of this ruling on liability claims or any other questions, please do not hesitate to contact our firm.