By: Philip A. Garubo, Jr. and Mark E. Zabel, Jr.
In Fernandes v. DAR Development Corp., (A-37-13) (073001), the Supreme Court of New Jersey held that, in negligence claims by injured workers against third parties, there is no sound reason to depart from settled precedent that an employee’s negligence may be submitted to the jury when evidence has been adduced that the injured employee unreasonably confronted a known risk and had no meaningful choice in the manner in which he completed the task. However, this charge is not automatically given.
Plaintiff was an employee of a plumbing and heating company hired by a general contracting firm to complete work for a residential construction project. The sub-contracted project was to dig a 700-foot long trench from the street to the house under construction. At the time of the accident, the trench was approximately five feet in depth, which required a makeshift stairwell. On the day of the accident, Plaintiff was walking up the stairwell when the trench caved in, subsequently burying him chest-deep in loose soil. As a result, Plaintiff filed a complaint seeking compensatory damages for the injuries he sustained.
During the course of the Trial, all parties agreed that the accident could have been avoided if appropriate safety measures had been taken. However, the parties disagreed as to who bore the responsibility for ensuring the safety measure were in place. Plaintiff presented evidence that the Defendants violated known safety regulations by the Occupational Safety and Health Administration. In turn, Defendants presented evidence that Plaintiff was an experienced trench-digger and had knowledge of the necessary safety precautions.
At the time of the Charge Conference, the Defendants requested a jury charge of comparative negligence based upon Plaintiff’s knowledge of safety precautions. They argued that the Appellate Division already concluded comparative negligence on the part of the injured employee of a subcontractor can be properly submitted to the jury. See, Kane v. Hartz Mountain Indus., Inc., 278 N.J.Super. 129, 150-51 (App.Div. 1994), aff’d o.b., 143 N.J. 141 (1996). However, the Trial Judge rejected the Defendants argument and subsequently denied Defendants’ request to charge the jury with Plaintiff’s comparative negligence.
Instead, the Trial Judge stated, “there has been absolutely no evidence that the plaintiff did or didn’t do anything that he should or shouldn’t have done.” The Trial Judge further stated that Plaintiff “got into a trench where his boss told him to go. Yes. He knew there [were] risks, but he didn’t necessarily know specifically what the risk was or why there was a risk and whether or not actions were taken to protect him or not protect or whether they were sufficient or not.” A Comparative Negligence charge was not offered to the jury, causing Defendants to Appeal.
On Appeal, the Appellate Division affirmed the trial court’s decision, stating that the Trial Court did not err when it declined to charge the jury on comparative negligence. The Appellate Court held that Defendants “failed to present competent evidence that at the time of the accident, plaintiff voluntarily and unreasonably proceeded in the face of a known danger.” In reaching this decision, the Appellate Court cited Kane v. Hartz Mountain Industries, Inc., and Suter v. San Angelo Foundry & Machine Co., 81 N.J. 150 (1979).
Subsequently, the Supreme Court held 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 damage.” The Court found that Defendants only presented evidence of Plaintiff’s general work experience and knowledge of safety risks with trenches, not of the risk associated with this particular trench. Plaintiff’s general knowledge of the danger of trenches was not evidence that he acted negligently. Therefore, an employee’s negligence may be submitted to the jury when that evidence shows the employee confronted a particularly known danger and acted unreasonably, and no such evidence was presented to the jury.
Indeed, the Fernandes decision reaffirms the previous proposition that an employee’s comparative negligence can be submitted to the jury. However, to receive this charge the evidence must show that the plaintiff was aware of the particular risk associated with the task and proceeded to act unreasonably in light of such knowledge. As a result, the Fernandes decision stresses the importance of establishing plaintiff’s knowledge of the risks associated with the specific condition that allegedly caused his or her accident. Without establishing knowledge of the specific condition, it is possible that the defense will not be entitled to a comparative negligence charge, thus eliminating a critical defense theory, placing defendants at a distinct disadvantage at the time of Trial.
 Philip A. Garubo, Jr. is a Shareholder at Golden, Rothschild, Spagnola, Lundell, Boylan & Garubo, P.C. He has represented a wide variety of clients in the construction industry in matters arising from construction related claims, including matters arising from construction site accidents. He can be reached at firstname.lastname@example.org.
 Mark E. Zabel, Jr. is an Associate at Golden, Rothschild, Spagnola, Lundell Boylan & Garubo, P.C., and represents a diverse set of clients in civil litigation matters. Mark can be reached at email@example.com.