The New Jersey courts, like the court in South Dakota, tend to focus on whether horseplay constitutes a major deviation from work when assessing compensability of injuries. In Trotter v. City of Monmouth, 144 N.J. Super. 430 (App. Div.), certif. denied, 73 N.J. 42 (1976) the Appellate Division addressed the issue of major deviation.

In Trotter, the petitioner was a county road department worker. During a break from cutting grass in the summer heat, the petitioner and several co-workers began throwing water at one another to cool off. The petitioner interrupted this water fight by driving a co-workers motorcycle that had been parked nearby on and off county property. The petitioner eventually drove the motorcycle up a hill, lost control of it and crashed suffering various injuries. The employee’s petition was denied by the Appellate Division because:

  1. The motorcycle was not supplied by the employer;
  2. The motorcycle was not equipment used in the course of the employer’s business; and,
  3. The petitioner’s conduct was so far a deviation as to constitute an abandonment of his employment.

When discussing the Trotter case, the Appellate Division turned to Professor Larson’s Workmen’s Compensation Law guidebook, which assesses the gravity of a deviation from employment based upon the following factors:

  • The extent and seriousness of the deviation;
  • The completeness of the deviation (whether it related to petitioner’s performance of duty or involved an abandonment of duty);
  • The extent to which the practice of horseplay had become an accepted part of the employment; and
  • The extent to which the nature of the employment may be expected to include some such horseplay.

Unfortunately, the application of the major/minor deviation test is inherently subjective and doesn’t add much order to the chaos. Regardless of the occupation or working conditions, a certain amount of horseplay is always to be expected in any workplace. If the horseplay rises to the level of a major deviation, like it did in Trotter, you can expect workers’ compensation benefits to be denied.

If you have been injured at work, regardless of the cause, and have questions about your rights or what benefits you may be entitled to, please speak with an attorney right away. At Stark & Stark, our experienced attorneys and legal staff can help you understand your rights.

Fast food restaurants are an American staple. Drive down any major highway in the US and you’re bound to see a sign or advertisement for some fast food chain’s restaurant. Although these restaurants can provide tasty meals at an affordable price, they have also been the subject of many personal injury lawsuits over the years. The McDonald’s “hot coffee” lawsuit is one case that many people think of when the topic of fast food restaurant lawsuits comes up. What many don’t realize, though, is that fast food restaurants have been the subject of personal injury lawsuits for other reasons. For example, these restaurants’ floors are often made of tile, which can create dangerous slip hazards to customers.

In one recent case, a woman and her family went to eat at a local hamburger restaurant. As she was walking back from the bathroom, she slipped and fell on grease that was on the floor. She was diagnosed with a back sprain and a contusion to her left elbow. Unfortunately, despite physical therapy, she developed severe, persistent elbow pain. She was later diagnosed with complex regional pain syndrome, a chronic permanent condition that caused her to suffer electric-shock-like pain, swelling, and burning to her arm. Her past medical expenses totaled about $36,000, and her future medical expenses are estimated to be about $359,400.

She attempted to return to her job, but was unable to remain on a reduced schedule and instead went on temporary disability. Her past lost earnings totaled about $94,600, and her future economic loss is estimated around $1.71 million.

Continue Reading Pedestrian Pitfalls and Other Dangers for the Unwary

The Supreme Court of South Dakota recently found a case involving an employee who was injured while engaging in “horseplay” with a coworker, while at work, to be a compensable. Petrik v. JJ Concrete, Inc., 2015 S.D. 39 (June 3, 2015), involved concrete laborers who had idle time during their work day while they waited for concrete trucks to arrive or for other work to be completed before they could continue their own. Petrik testified at trial that during these lulls in work, he and others often played jokes and tricks on each other.

On this particular day, Petrik and others had completed their work and were waiting for a concrete truck to arrive. It was a hot day and some of them sat in one of the employer’s air-conditioned trucks. Petrik wanted to sit in the truck to cool off, so he told a co-worker that one of the workers on the far side of the work site needed to talk to him. When the co-worker left the truck, Petrik took his seat inside the cool cabin. After a while, he got out and saw his co-worker coming back. Petrik started to run and the co-worker pursued him. During the short chase, Petrik attempted to jump a five-foot wide trench and landed awkwardly and broke his ankle.

Petrik filed a workers’ compensation claim, but this was promptly denied by his employer and insurer, on the basis that his injury did not arise out of and in the course of his employment.  Additionally, his employer prohibited horseplay by employees during work hours. The Department of Labor found that Petrik’s injury arose out of the course of employment, but did not occur in the course of that employment. The circuit court affirmed.

Continue Reading Horseplay during a Lull in the Workday Found Compensable

Effective September 1, 2015, new child passenger safety laws will go into effect in New Jersey.  These new laws were designed with enhanced safety in mind – specifically on improving protections for young children riding in cars.  So what are these new rules?

  1. Every child under 2 years old and weighing less than 30 lbs. must be secured in the back seat of a vehicle in a rear-facing car seat with a five-point harness.
  2. Every child under 4 years old and weighing under 40 lbs. must be secured in the back seat of a vehicle in a rear-facing car seat with a five-point harness until the child grows larger than the height and weight standards set by the manufacturer.
  3. After a child outgrows the manufacturer’s height and weight standards, the child may begin sitting in a front facing child seat with a five-point harness.
  4. Every child under 8 years old and less than 57 inches in height must be secured in a rear-facing or forward-facing child seat with a five-point harness or a belt-positioning booster seat.
  5. Any child older than 8 years old or taller than 57 inches in height must be properly secured by a regular adult seat belt.

Continue Reading New Jersey’s New Child Passenger Safety Laws: What Parents Need to Know

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.

Truck accidents often can result in serious or even fatal injuries. An example of such an accident is one that many people read about last summer: the accident where a Wal-Mart truck and a limo van collided. The accident severely injured comedian Tracy Morgan and two other occupants and killed fellow comedian James McNair.

Another example of a serious truck accident occurred recently involving a grain truck and a car. In that accident, a 32-year old woman was driving her car through an intersection when a farm truck driver, who was hauling grain for his employer, pulled out from a stop sign and into the woman’s path. Her car struck the side of the truck, resulting in serious orthopedic injuries. The woman suffered fractures to her right ankle and her femur at the knee. She underwent multiple ankle surgeries, including a fusion and surgery to repair the fracture to the femur. Her past medical expenses totaled $276,000. Her lost earnings totaled about $69,000. Since the accident, the fused ankle has made it difficult for her to participate in activities requiring prolonged standing or walking.

The injured woman sued the truck driver and the small farm that employed the truck driver. The plaintiff alleged that the truck driver failed to yield the right-of-way. She alleged that the farm was liable for the truck driver’s negligence. The truck driver argued that the plaintiff had failed to keep a proper lookout.

After depositions were conducted in the case, the parties settled the lawsuit for $900,000, which was paid by the farm’s insurance company.

These two accidents illustrate just how seriously someone can be injured or harmed when a truck collides with another vehicle. Accidents happen, and so you must always be careful when you are on the road, whether as a pedestrian, bicyclist, or driver. Truckers have important jobs and the vast majority of them are safe, conscientious drivers. However, sometimes they cause collisions, and when that happens, the consequences are serious.

At Stark & Stark, we have represented many people who have been injured in truck accidents. We have the skills, resources, and experience to understand and address the unique challenges that injured people face when going up against a trucking company in a personal injury claim. If you or someone you know has been injured in a truck accident, car accident or some other type of accident as a result of some else’s negligence, it is recommended that you consult with experienced legal counsel immediately.

Grocery stores and other large retailers generally have plans, policies and procedures designed to keep their customers safe. Unfortunately, far too often store employees either do not know or do not follow corporate safety policies. This is why thousands and thousands of people are injured in grocery stores here in New Jersey every year.

Many people feel an intense loyalty to “their” grocery store and spend large portions of the family budget on groceries. Stores like ShopRite expect to earn hundreds of thousands of dollars from each of their customers over the course of a lifetime. Is it too much to ask for customers to actually be kept safe while they shop? Sadly, for many grocery stores and other large retailers, the answer is yes. In my experience, corporate profit is frequently more important than customer safety.

Grocery store owners know there are “problem areas” in every grocery store. These include the produce department, floral department, frozen food aisles, checkout areas, entrances and exits, to name a few. These are high traffic areas where there is often water or slippery produce on the floor.

Grocery store owners and operators have a legal obligation to exercise reasonable care for the safety of their customers. Store owners must take steps to correct or give warning of dangerous conditions (like water on the ground), so long as the owner knew or should have known of the dangerous condition. Furthermore, the grocery store owner must make inspections of the store to try to find dangerous conditions. Store employees are typically required to conduct “floor sweeps” to check for dangerous conditions, like spills or tripping hazards. This is where most grocery stores fail their customers because employees do not perform regular “floor sweeps” or follow any inspection schedule. This means that dangerous conditions frequently go unnoticed, and that is why thousands of people are injured in grocery stores each year. Of course, this is not the only area where grocery stores fail to keep their customers safe from harm. Other causes of customer injuries will be explored in some of my upcoming posts.

Continue Reading What Should You Do If You’ve Been Injured At a Grocery Store?

With the summer in full swing, many people will see their social calendars filling up with fun events such as parties, gatherings, events, and the like. While summer is a time for fun, we need to remember that regardless of whether we are hosts or guests, safety is always an important factor that all of us need to consider. Always be aware of your surroundings, especially if you are in a new or unfamiliar place. In a recent case, a college student was attending an event at an off-campus house. While on the fourth floor of the house, she sat on a piece of flex board covering a raised skylight opening. The board gave way, and the student fell nearly 20 feet through the house before eventually sliding down the stairs and landing on her head. She suffered a T12-L1 spinal dislocation with transaction of the cord and a C4-5 disk herniation, resulting in paraplegia. She underwent spinal surgery and incurred $1.2 million. She now uses a wheelchair and requires assistance with many activities of daily living. Her projected future medical expenses and life-care costs are estimated at about $6.2 million. She sued the property owners, alleging they were negligent and reckless in allowing the skylight opening to be covered with a thin piece of flex board. She also alleged that they were negligent in failing to repair the condition or warn visitors of the hazard and prevent visitors from accessing that area.

The plaintiff also sued the tenants of the property, alleging that, under the terms of the lease, they were required to notify the landlords of any conditions that were dangerous or in need of repair. The tenants acknowledged this was a dangerous condition, that it existed for a full year before the incident, and that they never told the landlords about it. The owners of the home argued that the skylight opening was nailed shut with a 3/4-inch plywood board during building renovations in the 1980 and they were unaware that the original plywood board had been removed. They also maintained that the tenants failed to warn them of the hazardous condition and argued that the lease specified that the tenants had a duty to warn them if an issue existed. The homeowners also argued that the tenants were in exclusive control and possession of the building and were therefore solely responsible. They alleged that the plaintiff was intoxicated at the time of the fall, with a blood-alcohol content of 0.26%, and that she had marijuana in her system. The parties settled the case during pretrial mediation for $11.6 million, paid by various insurers for the homeowners and the tenants.

This case is a clear example of the dangers that lurk for the unwary social guest. Hidden defects, sunken living rooms, broken exterior concrete steps, and doors that conceal basement steps are all common examples of hazards for guests. If you are a homeowner, make sure your house and property are in good condition and do not pose any safety hazards for people coming onto your property. If you are a guest at someone’s home or property, always look before you sit in an area or walk into an area. If you have been injured on someone else’s property as a result of their negligence, you should contact legal counsel right away to discuss your situation.

Veterans service-connected disability benefits are often denied or awarded at the incorrect rating or date of disability. If you find yourself in this position, you have the right to an appeal and you increase your chances of winning if you are represented by an attorney.

You can find a list of VA accredited attorneys here. An accredited attorney has been screened by the VA for character and fitness, has been trained to represent disabled veterans, and is required to engage in additional training to maintain accreditation every two years. Because appeals can take 3 ½ to 4 ½ years to process, attorneys fees are based upon benefits they obtain on your behalf and paid out of your past due benefits.

Continue Reading How Do I Appeal the Denial of Military Service Connected Disability Benefits and Do I Need an Attorney?

Now that summer is almost here, it is time to remind everyone of an important topic: trampoline accidents. Although they can be fun, trampolines also can be very dangerous, especially if multiple people are using one at the same time. Trampoline accidents have resulted in life-changing injuries to adults and children alike. Such accidents can cause spinal cord injuries, fractures, and in some cases even death.

In one recent case, a 10-year old child sustained serious injuries while playing on a backyard trampoline with a friend. The girls were playing a game called “popcorn” in which the victim sat on the trampoline and her friend jumped on it, propelling the victim into the air. During the game, the victim landed awkwardly on her left leg, fracturing it. She was diagnosed with a fracture to the growth plate of the left distal femur and underwent surgical external fixation with a pin. Approximately three years later, when she experienced a growth spurt, the growth plate in the left leg failed to grow. This resulted in the knee being bowed and the left leg being about two inches shorter than the right leg. Unfortunately, additional surgeries to lengthen her left leg and stop the growth in her right leg did not resolve the issue. Her medical expenses were approximately $60,000, and she may undergo a second procedure to lengthen her leg, at a cost of about $90,300. Future costs for pain management, counseling, and physical and occupational therapy are estimated at nearly $225,000.

The injured girl’s mother sued the homeowner who owned the trampoline, alleging that he was negligent in failing to supervise the girls. The plaintiffs claimed that the defendant homeowner lost track of the girls after they entered his home and that he later saw them on the trampoline but failed to tell them to stop using it. The girls testified that the defendant saw them on the trampoline but said nothing. The defendant argued that he did not know the girls were on the trampoline. He failed a cross-complaint against the girls’ mothers, alleging that they were negligent for failing to supervise them. The parties settled before trial for $750,000, which was paid by the defendant homeowner’s insurance policy.

At Stark & Stark, we have represented people who have been injured in accidents on trampolines, amusement parks, roller skating rinks, and in other recreational activities. If you or someone you know has been hurt as a result of someone else’s negligence in one of these types of activities, contact legal counsel immediately to determine your rights.