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.