Fatalities caused by falls continue to be a leading cause of death for construction employees. Lack of proper fall protection remains the most frequently cited violation by OSHA. In response to the number of fall related injuries and fatalities, OSHA launched its National Safety Stand-Down Campaign to Prevent Falls in Construction. The annual event strives to raise fall hazard awareness. The 4th annual National Fall Prevention Stand-Down will take place May 8-12, 2017.
A recent database study conducted at Brigham and Women’s Hospital found that the rate of medical malpractice claims paid on behalf of physicians in the United States declined substantially from 1992 to 2014. The study analyzed data from the National Practitioner Data Bank (NPDB), a centralized database of paid malpractice claims that was created by Congress in 1986. Researchers found an overall drop in the amount of paid claims across all specialties, but the extent of the decline was markedly different by specialty, according to Adam Schaffer, MD, lead author of the paper. The findings are published in the March 27, 2017 issue of the JAMA Internal Medicine journal.
The Senate recently voted to nullify an Obama-era OSHA safety regulation – the so-called “Volks rule” – which extends the time period for OSHA to cite employers for failing to report workplace injuries and illnesses.
If you think you think you can drink heavily all night and be okay to drive in the morning you may end up seriously injuring someone on your way to work. And if you are the bar or restaurant that served that drunk driver, you remain open to liability lawsuits. Worse than either of these is the result for innocent drivers who are caught in the ensuing accidents from “morning-after” drunk drivers.
This blog was co-authored with my colleague, Michael Donahue.
In Fernandes v. DAR, the New Jersey Supreme Court was recently asked to consider whether the issue of an employee’s comparative negligence in a workplace construction injury case should be submitted to the jury. We at Stark & Stark had the pleasure of serving as amicus curaie counsel on behalf of the New Jersey Association for Justice.
It was our position that the comparative negligence defense was not applicable to an employee injured on a construction worksite where the injured worker had no “meaningful choice” but to work under hazardous conditions. New Jersey law does not allow the comparative negligence in workplace product liability claims pursuant to Suter v. San Angelo Foundry Co. On behalf of NJAJ, we argued that a construction worker, like those workers injured due to defective products, had no meaningful choice and therefore could not, as a matter of law, be held comparatively negligent.
Unfortunately, the New Jersey Supreme Court rejected this bright line test. However, the New Jersey Supreme Court did reaffirm that a violation of OSHA by a general contractor and its subcontractors is evidence of negligence. The Supreme Court further observed as follows:
The relevant inquiry in gauging the level of an employee’s responsibility for his or her injuries is whether he or she failed to use the care of a reasonably prudent person under all of the circumstances, either in continuing to work in the face of a known risk or in the manner in which he or she proceeded in the face of that known risk. The issue of a plaintiff’s negligence may only be submitted to the jury when the evidence adduced at trial suggests that a worker acted unreasonably in the face of a known risk and that conduct somehow contributed to his or her injuries. The fact that plaintiff was a member of the workforce, with all the compulsions attendant to that status, is a factor which is subsumed in the jury’s analysis of whether he acted prudently. The jury should also consider the effect of the plaintiff’s expertise and training on his or her determination of whether to proceed with the assigned task and the manner in which to do so. Notwithstanding the rule permitting an employee’s negligence to be considered in a negligence action against a third party arising from a workplace accident, the trial judge here properly rejected defendant’s request for a comparative negligence charge because there is 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. (Source)
Just as important, this opinion may be read to implicitly overrule the New Jersey Appellate decision in Tarabokia v. Structure Tone, 429 N.J. Super. 103 (App. Div. 2012). There, the Appellate court suggested that a general contractor did not have a non-delegable duty to protect employees of its subcontractors.
At Stark & Stark, we have extensive experience handling the complex and difficult issues surrounding construction injuries. If you or someone you know has been injured on a construction site, our legal team is ready to use our experience, talent and resources to answer your questions and fight to protect your interests.
The Federal Motor Carrier Safety Administration (FMCSA) announced that it is considering a rule making that will increase the minimum levels of financial responsibility for motor carriers, including liability coverage for bodily injury and property damage, establishing financial responsibility requirements with passenger carrier brokers and to implement financial responsibility requirements for brokers and freight forwarders, as well as revising existing rules concerning self-insurance and trip insurance. The FMCSA is seeking public comments on these topics.
The Federal Government has long required motor carriers, brokers and freight forwarders to maintain certain levels of financial responsibility. Presently, for-hire interstate general freight carriers are required to carry a minimum of $750,000. This minimum level of financial responsibility was established in 1980 with the passage of the Motor Carrier Act of 1980. That minimum level has not been increased over the past 34 years.
It is certainly time that companies that engage in interstate transportation be required to be insured for at least $10 million as was recommended by the Pacific Institute for Research and Evaluation and that the minimum level be indexed for inflation and productivity growth in the same manner that DOT indexes its value of statistical life for regulatory purposes. There is no reason why companies that put tractor trailers on our highways should not be sufficiently insured to pay claims for damages they cause.
Click here for a link to the FMSCA notice.
Construction workers on a job site have no meaningful choice when told by their employers to perform an assigned task. When a construction worker is injured, while performing his assigned task, should the defense of comparative negligence be a defense in a lawsuit filed by the injured employee against the general contractor? That is the issue that was argued before the New Jersey Supreme Court last month.
I had the honor and privilege of arguing the case on behalf of the New Jersey Association for Justice as amicus counsel (friend of the court).
Fernandes v. Dar is a personal injury case in which the plaintiff, a plumber, was injured when the sanitary sewer line trench he was excavating collapsed around him. The trial court refused to submit the issue of the plaintiff’s own comparative negligence to the jury, finding that the defendant failed to introduce any evidence of culpable conduct on behalf of the plaintiff. The jury returned a verdict on behalf of the plaintiff.
Defendant took an appeal asserting that the trial court committed error when it refused to charge the jury on plaintiff’s comparative negligence and determined, as a matter of law that the plaintiff was not at all at fault. On appeal, the Appellate Division affirmed, finding that plaintiff did not voluntarily an unreasonably encounter a known risk, a standard which is higher than ordinary negligence.
The New Jersey Supreme Court granted certification to determine the issue as to what standard should apply in evaluating an injured construction worker’s conduct. I was asked, on behalf of the New Jersey Association for Justice, to file a brief and argue on behalf of its members and future New Jersey construction workers who might be injured on the work site. It was NJAJ’s position that a construction worker, injured on the job while performing his assigned tasks, had no meaningful choice, i.e., an employee either had to do what he was told to do or faced being fired. It was NJAJ’s position that in such circumstances, as a matter of law, a construction worker injured on his job, performing his assigned tasks, could not be comparatively negligent.
We all look forward to the Supreme Court’s ultimate decision in the case.
Ten years ago, Candace Anderson, a 21 year old young woman, was convicted of criminal negligent homicide as a result of a one car motor vehicle crash. Ms. Anderson lost control of her 2004 GM Saturn Ion. Her fiancé, a front seat passenger, was killed in the crash when his passenger side air bag failed to deploy. Since that time, Candace Anderson, who was sentenced to a $10,000 fine, 260 hours of community service, counseling and five years of probation, has been racked with guilt over the death of her fiancé
This week, Ms. Anderson, was cleared of any criminal responsibility for the crash following the admission by General Motors that her fiancé’s death was due to a defective ignition switch in the Saturn Ion.
Most distressing, is that five months before Ms. Anderson plead guilty, General Motors conducted its internal review of the crash and determined that the crash was due not to the fault of Ms. Anderson, but due to the defective ignition switch. General Motors never advised Ms. Anderson, her fiancé‘s estate or the Court of its finding. In 2007, GM wrote to the National Highway Safety Administration, falsely stating that it had not accessed the cause of the crash.
GM is not alone. Toyota spent years wrongly blaming sudden acceleration events on drivers. See also the recent stories about Takata and Honda. This is why they want less regulation and more tort reform. Sort of like terrorists arguing for less security at airports. Bad corporations should and need to be held accountable for their bad corporate choices.
In September, the New Jersey Supreme Court heard argument in two cases, which address the issue of bad faith conduct by an automobile insurer in failing to fairly investigate and resolve uninsured/underinsured (UM/UIM) claims brought by two of its policyholders.
In New Jersey, when a person is injured as a result of the negligence of an automobile driver who is uninsured or is injured, but the person causing the collision has insufficient insurance, a driver or passenger may bring a claim against his/her own automobile insurance carrier for uninsured (UM) or underinsured (UIM) motorist coverage. Unfortunately, in many instances, automobile insurers treat their own policyholders (insureds) as adversaries and not as insureds to whom they owe a fiduciary duty of good faith and fair dealing.
The two cases, both involving New Jersey Manufacturers Insurance Company, were brought by NJM policyholders who asserted that NJM treated them unfairly and in bad faith.
Unfortunately, under New Jersey law, there is no remedy when an automobile insurance company fails to treat its insureds unfairly when appraising UM and UIM claims. A successful claimant is not entitled to obtain attorney fees as a result of the conduct of its own insurance company. Furthermore, because a claimant is only entitled to recovery the amount of its own policy limits, a claimant can never received more than the amount of the coverage which the insured bought. Thus, insurance companies have no incentive to pay the full amount of the claim even when the claimant’s injuries far exceed the policy limits. Knowing that claimants will have to expend money to pursue a claim, the insurance companies know that a claimant will be forced to take less than his/her own policy limits. The two cases before the New Jersey Supreme Court seek to hold insurance companies responsible when they fail to timely investigate and resolve meritorious claims.
Attorneys for the insureds rightly argued that such bad faith conduct by insurance carriers is epidemic and that without a remedy to the problem that insurance carriers will continue to mistreat their insureds. What was most astounding, but what plaintiff trial lawyers in New Jersey have long known, was the statement of New Jersey Manufacturers’ (NJM) own attorney, who publicly acknowledged during argument that NJM does not believe that it owes a fiduciary duty to its own policyholders and that its policyholders who make claims under its policies are treated as adversaries. This was an astounding admission as it is counter to the law in the State of New Jersey.
Hopefully the New Jersey Supreme Court will provide New Jersey consumers with a real remedy when their insurance carriers act in bad faith.