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employees when making a delivery and placing items in the general area designated for such deliveries, according to an unpublished decision by the Appellate Division in Fry v. Pepsi Bottling Group, et als., A-5775-10T3.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.