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Carolyn Kelly Bogart

Co-Chair, Hospitality & Liquor Liability

Co-Chair, Premises & Retail Liability

Portrait of Carolyn Kelly Bogart

Carolyn, a shareholder in our Casualty Department, has been a practicing attorney since 1996. She focuses her practice on premises liability, defense of liquor liability, construction injury, significant exposure excess insurance claims, contract and general casualty matters, and sports and entertainment litigation. Carolyn’s practice also focuses on the area of retail liability, representing national and local retail clients defending general casualty matters, risk transfer claims, and negligent security matters. As a seasoned litigator Carolyn represents many clients in construction-based litigation involving contractual disputes and subrogation matters. 

Carolyn has extensive experience defending fraternal organizations, schools and universities in matters involving contractual disputes, indemnity, vicarious liability, dram shop and general negligence. She is well versed in NJ immunity laws for schools and fraternal entities. Additionally, Carolyn has experience defending organizations and hotel chains in high-exposure cases involving human trafficking and sexual assault allegations, including matters brought under the federal Trafficking Victims Protection Reauthorization Act (TVPRA).

Much of Carolyn’s caseload requires interpretation of contractual disputes involving insurance status and coverage disputes. She has extensive experience litigating complex contract and insurance coverage issues arising in construction, landlord and tenant, and other casualty matters. Carolyn has litigated numerous matters to verdict in the state of New Jersey and practices in all counties and federal court venues in the state.

In addition to her law practice, Carolyn provides annual legal updates to various clients ranging from issues dealing with auto liability, premises liability and risk management. She often provides consult to clients regarding liability matters, preparing for future issues to avoid litigation and developing policies and procedures for risk assessment.   

Carolyn is a graduate of The Catholic University of America, Washington, D. C. While residing in Washington, D.C., she worked on Capitol Hill as a legislative intern for Congressman James Saxton (Rep. 13th District of New Jersey). After receiving a Bachelor of Arts degree in Political Science, Carolyn continued her education at Catholic University's Columbus School of Law where she was actively involved in the Families and Law Clinic, Moot Court, and was also employed as a judicial intern for the Honorable Brook Hedge, D.C. Superior Court, Criminal Division.

Upon completion of her juris doctor in 1995, she accepted a position with the New Jersey State Judiciary and became law clerk to the Honorable George L. Seltzer, New Jersey Superior Court, Law Division.

    • The Catholic University of America Columbus School of Law (J.D., 1995)
    • Catholic University of America (B.A., 1992)
    • New Jersey, 1996
    • U.S. District Court District of New Jersey, 1996
    • Supreme Court of the United States, 2002
    • AV® Preeminent™ by Martindale-Hubbell®
      The Martindale-Hubbell rated attorney list is issued by Internet Brands, Inc. A description of the selection methodology can be found here. No aspect of this advertisement has been approved by the Supreme Court of New Jersey.
    • Camden County Bar Association
    • Commercial Defense Practice in New Jersey and Pennsylvania, Nationwide Insurance Company, Co-Presenter, December 2013
    • “Let It Snow,” Defense Digest, Vol. 27, No. 5, December 2021
    • “Sidewalk Liability - What You and Your Condo Association Have In Common,” Defense Digest, Vol. 18 No. 4, December 2012
    • Summary Judgment Secured in New Jersey Wrongful Death Case Obtained a summary judgment in a wrongful death case, based on a lack of duty owed by a groom to his wedding guest, and dismissal of cross claims for lack of a viable contract owing indemnity under Azurak. The decedent was a plus-one guest at our client’s wedding, which was held at a multi-building facility in Moorestown, NJ. Specifically, the venue consisted, in part, of a 131-year-old home with a castle-like outward appearance. The home’s design includes an elevated terrace (raised approximately five feet and accessible by stairs) with an unguarded, flat ledge. The plaintiff alleges the decedent was sitting and/or leaning against the ledge when he fell over, sustaining injuries that allegedly resulted in his death a few months after the event. Our client was an employee at the facility. The corporate owners of the property permitted him to use the home for his wedding, at no cost, provided he obtain an event insurance policy. The co-defendants sought indemnification, arguing that the policy evidenced an agreement that our client would provide indemnification to them. It was our position, and the court agreed, that our client owed no duty to warn the decedent as this was an open and obvious condition that the decedent was aware of or by a reasonable use of his faculties would observe. Further, our client and the decedent were both invitees to the property, and it is the co-defendant landowners who had a non-delegable duty to use reasonable care to protect against dangerous conditions. Therefore, the claims raised in the complaint and cross-claims for contribution were dismissed. Further, the court found no breach of contract or enforceable agreement to indemnify; the negligence in this case was on the co-defendant commercial property owners.
    • Summary Judgment Obtained in an Indemnity and Common Law Contribution Case Successfully argued and secured summary judgment in favor of a masonic organization, dismissing third-party claims for indemnity and common law contribution. At issue was a third-party complaint for contractual indemnity and common law contribution over an alleged trip and fall due to a structural condition with a rented property. The masonic organization rented the property for a single use event in support of the organization. The plaintiff claimed to be a guest and initiated suit against the commercial property owner, the third-party plaintiff. In support of the third-party complaint, a rental agreement was produced, which was not for the alleged date of loss. The third-party plaintiff argued the rental agreement disclaimed liability on the part of the property owner and turned the property over to the renter’s charge; therefore, the renter was required to inspect the property and warn its guests of dangerous conditions. The court granted summary judgment for the following reasons. First, the rental agreement could not support contractual indemnity because it was not Azurak compliant as there was no explicit language requiring indemnity. Second, the masonic organization’s duty as a short-term lessee did not require inspection prior to the event, nor was there sufficient factual evidence to overcome the masonic organization’s charitable immunity. 
    • Summary Judgment Secured in a Dram Shop Liability Case Obtained a summary judgment in a challenging dram shop liability case against a large restaurant chain where the demand was $1 million. The plaintiff alleged our client was responsible for overserving the co-defendant driver prior to the subject motor vehicle accident. The court agreed with our arguments that the plaintiff failed to establish a violation of the The New Jersey Dram Shop Act. The plaintiff failed to present an expert report until opposing our motion for summary judgment. The expert report, which was submitted as an exhibit to the plaintiff’s opposition brief, did not extrapolate the defendant’s BAC at the time he left the defendant’s establishment. There was also no eyewitness testimony on the issue. The court rejected the plaintiff’s arguments that there was sufficient circumstantial evidence to support a jury’s conclusion that the co-defendant driver was visibly intoxicated at the time of service based on police observations at the scene of the accident and a (.17) BAC reading, which was administered approximately one hour and 30 minutes after leaving the restaurant. Distinguishing between prior case law and the subject circumstances, summary judgment was awarded based on the lack of either direct testimony or expert opinion as to the co-defendant’s state of intoxication at the time of service. 
    • Appellate Court Pivots; Motion To Dismiss Granted Obtained a published decision in the New Jersey Appellate Division reversing the denial of a motion to dismiss because of a lack of duty. The plaintiff’s ex-husband drove through the gate at a large, high-rise apartment complex, waited for plaintiff to arrive, and then shot her in the face. Our client was the former management company which ceased its management obligations 17 days before the shooting, when a successor management company took over. The plaintiff argued that our client was negligent based on procedures for securing the lot it put in place when it managed the property. We sought summary judgment, arguing a lack of duty due to the expiration of a management contract. The Law Division judge denied that motion, asserting there were genuine issues of fact and that the jury had to decide whether a duty existed. We persuaded the Appellate Division to grant interlocutory appeal, and then we successfully argued for a reversal. First, the Appellate Division agreed with us that the trial judge erred by holding that the existence of a duty was a jury question and not a question for the court to decide as a matter of law. Second, the Appellate Division held that, since our client no longer had any rights or responsibilities over the security of the premises when the shooting happened, and because there was no indication that the successor management company or the owner of the property could not have changed the procedures which our client had put in place, the former management company owed no duty to the plaintiff and that summary judgment was therefore appropriate.
    • Social Host Act Does Not Apply to Gross Negligence Claims Carolyn was successful in opposing a plaintiff’s appeal against our client, a former fraternity member and social guest. In 2014, the plaintiff was a 20-year-old college student and fraternity member attending a university in New Jersey. After consuming his own alcohol, he fell asleep in a dorm room that was the location of an on-campus party. In the early morning hours, he left the dorm room and proceeded to drive his vehicle, which was unknown to anyone in attendance, as all of the party attendees had either left the party or were asleep when he left. He injured himself in a one-car accident, resulting in a traumatic brain injury and disfigurement claim. In 2016, he filed a lawsuit naming all party attendees and fellow brothers in his fraternity, as well as the university and its employees. Following over 30 depositions, summary judgment was granted to all defendants. The appeal was filed in 2019, and a reported decision issued on March 25, 2021, affirming the underlying Superior Court decision as to our client. The appeal raised questions concerning the scope of the duty owed to an adult not old enough to drink legally, but who nonetheless drank to excess. The appellate panel ruled that the Social Host Liability Act did not apply because it governs liability for third party injuries resulting from the service of alcohol to an of-age adult.
    • Dismissal of Complaint Under New Jersey’s Charitable Immunity Act Marshall Dennehey was successful in the New Jersey Appellate Division, which affirmed the dismissal of the plaintiff’s complaint under New Jersey’s Charitable Immunity Act. The defendant operated a shelter for battered women, their dependent children and the homeless. The plaintiff and her child were residents at the shelter and beneficiaries of its charitable goals when the plaintiff slipped and fell on ice on the shelter’s property. She argued that she was not a beneficiary of the charity because she did administrative tasks and volunteered in the charity’s thrift store. However, the trial court and Appellate Division rejected those arguments, holding that the plaintiff’s presence on the defendant’s property was due to her being a resident beneficiary of the charity, not as a result of any volunteer work she may have performed for the defendant. Thus, because her volunteer activities were incidental to her residency at the shelter, the Charitable Immunity Act applied and the dismissal of the complaint was affirmed.  

Results

Summary Judgment Secured in New Jersey Wrongful Death Case

We won summary judgment in a wrongful death case, based on a lack of duty owed by a groom to his wedding guest, and dismissal of cross claims for lack of a viable contract owing indemnity under Azurak. The decedent was a plus-one guest at our client’s wedding, which was held at a multi-building facility in Moorestown, NJ. Specifically, the venue consisted, in part, of a 131-year-old home with a castle-like outward appearance. The home’s design includes an elevated terrace (raised approximately five feet and accessible by stairs) with an unguarded, flat ledge. The plaintiff alleges the decedent was sitting and/or leaning against the ledge when he fell over, sustaining injuries that allegedly resulted in his death a few months after the event. Our client was an employee at the facility. The corporate owners of the property permitted him to use the home for his wedding, at no cost, provided he obtain an event insurance policy. The co-defendants sought indemnification, arguing that the policy evidenced an agreement that our client would provide indemnification to them. It was our position, and the court agreed, that our client owed no duty to warn the decedent as this was an open and obvious condition that the decedent was aware of or by a reasonable use of his faculties would observe. Further, our client and the decedent were both invitees to the property, and it is the co-defendant landowners who had a non-delegable duty to use reasonable care to protect against dangerous conditions. Therefore, the claims raised in the complaint and cross-claims for contribution were dismissed. Further, the court found no breach of contract or enforceable agreement to indemnify; the negligence in this case was on the co-defendant commercial property owners.

Summary Judgment Obtained in an Indemnity and Common Law Contribution Case

We successfully argued and secured summary judgment in favor of a masonic organization, dismissing third-party claims for indemnity and common law contribution. At issue was a third-party complaint for contractual indemnity and common law contribution over an alleged trip and fall due to a structural condition with a rented property. The masonic organization rented the property for a single use event in support of the organization. The plaintiff claimed to be a guest and initiated suit against the commercial property owner, the third-party plaintiff. In support of the third-party complaint, a rental agreement was produced, which was not for the alleged date of loss. The third-party plaintiff argued the rental agreement disclaimed liability on the part of the property owner and turned the property over to the renter’s charge; therefore, the renter was required to inspect the property and warn its guests of dangerous conditions. The court granted summary judgment for the following reasons. First, the rental agreement could not support contractual indemnity because it was not Azurak compliant as there was no explicit language requiring indemnity. Second, the masonic organization’s duty as a short-term lessee did not require inspection prior to the event, nor was there sufficient factual evidence to overcome the masonic organization’s charitable immunity.   

Thought Leadership

Defense Digest

On the Pulse…Navigating the New Era of Dram Shop Liability: Marshall Dennehey’s Hospitality & Liquor Liability Practice Group Steps Forward

September 1, 2025

Dram shop liability, or liquor liability, is civil liability—typically for bars and restaurants—for personal injuries arising out of service of alcohol to either a minor or a visibly-intoxicated patron. And it is quite the hot topic these days. An article about “dram shop” cases recently graced the front page of The Philadelphia Inquirer; quite a far stretch from what has long been a somewhat overlooked and largely ignored area of personal injury litigation.  Marshall Dennehey has been handling liquor liability claims since the days when the most common question we fielded was, “What is dram shop?” These cases have always had the potential to inflame juries due to the volatile nature of the fact patterns and circumstances surrounding alcohol-related incidents. But now, in the era of the “nuclear verdict,” juries are rendering astronomical verdicts in these cases.  Philadelphia attorney, M. Scott Gemberling, and King of Prussia attorney, Tony Michetti, have been at the forefront of this litigation for the past 40 years. With Tony’s recent retirement, and Scott’s transition to senior counsel at the firm, we have been appointed co-chairs of the firm’s longstanding Hospitality & Liquor Liability Practice Group. While it may seem like a “new era” here we have been learning from and working with Scott and Tony for the past two decades. And while Scott and Tony have tried plenty of liquor liability cases to verdict, their true legacy is a forward-thinking strategy focused on smart, fixed, and speedy investigation of claims, along with an evaluation of early mediation. The hope is to avoid, where possible, the nuclear verdicts that are increasingly splashed across the front pages of newspapers. This is the legacy we intend to carry forward. Drawing on our many years of experience, our team is here to handle any type of accident that accompanies or is related to the service of alcohol. While the classic “dram shop” scenario involves the patron who leaves a bar or restaurant and gets into a motor vehicle accident while intoxicated, that is just one scenario. We have handled cases against bars and restaurants arising out of numerous types of injuries that can occur, including cases involving:  •    Alcohol poisoning •    Bar fights •    Car accidents •    Motorcycle accidents •    Shootings •    Stabbings •    Suicide •    University fraternity/sorority events Additionally, the members of our group routinely present on the topics of safe service of alcohol, as well as risk management best practices, to help avoid and protect against claims and litigation. Whether you are faced with a lawsuit involving alcohol, or whether you are a business looking to avoid such a situation, our Hospitality & Liquor Liability Practice Group is here to help.  Patrick and Carolyn co-chair our Hospitality & Liquor Liability Practice Group. Patrick works in our Pittsburgh, PA office, and Carolyn works in our Mount Laurel, NJ office.   Defense Digest, Vol. 31, No. 3, September 2025, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2025 Marshall Dennehey. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.

Defense Digest

Let It Snow

December 1, 2021

Key Points:  Supreme Court of New Jersey applies ongoing storm doctrine. Court held that a commercial landowner does not have the absolute duty to keep sidewalks of his property free from snow or ice during an ongoing storm. In the September 2019 edition of Defense Digest, my colleague, Josie Scanlon, Esq., addressed the Storm in Progress Doctrine in her article “Emerging Liability Theory Provides New Defense for Premises Cases – The Ongoing Storm Doctrine.” The article discussed whether a commercial property owner could be held liable as a matter of law for failing to remove accumulated snow or ice until a reasonable time after the storm ends. This New Jersey premises liability law, while well established, did not provide an absolute elimination of liability for commercial property owners. Instead, it focused on whether or not reasonableness was the standard as it applied in the context of a commercial property owner’s removal of snow and ice from an abutting public sidewalk.  However, in June of 2021, in Pareja v. Princeton International Properties, et al., 252 A.3d 1984 (N.J. 2021), the Supreme Court of New Jersey addressed a case that had been pending since 2015. The court held that a commercial landowner did not have the absolute duty to keep sidewalks of his property free from snow or ice during an ongoing storm. In Pareja, a pedestrian had brought a personal injury action against a commercial landowner after slipping and falling on an icy sidewalk during an ongoing storm. The matter had been heard in Mercer County, New Jersey, which is half-way between Philadelphia and New York, and known as the “I-95 Corridor.” It is an area often subject to various freeze, thaw and re-freeze cycles during the winter months.  The Superior Court in Mercer County granted summary judgment to the landowner. The pedestrian appealed, and the Appellate Division reversed the findings of the trial court. The landowner petitioned for certification to the Supreme Court, which was granted. The judgment of the Appellate Division was reversed, although a dissenting opinion was filed. The central issue for the court was the duty of the commercial landowner to clear snow and ice from its property during a storm. For the first time, the court considered adoption of the “ongoing storm” rule rather than the preexisting “reasonableness standard.” The Supreme Court affirmed the standard that a “landowner does not have a duty to remove snow or ice from public walkways until a reasonable time after the cessation of precipitation.”  The plaintiff in Pareja was walking to work in the early morning hours, and he slipped and fell on a commercial-abutting sidewalk. The trial court, although granting summary judgment to the landowner, found that the ongoing storm rule applied and that there was no duty to maintain the sidewalks during an ongoing snow. The Appellate Division reversed this finding, concluding that the landowner had a duty to maintain the sidewalk even when snow was falling. The New Jersey Supreme Court held that the standard established in the legal precedent supports the adoption of the ongoing storm rule. In addition to adopting the rule, the Supreme Court also recognized two exceptions that can create a duty: (1) if the owner’s conduct increases the risk; or (2) if the danger is pre-existing. The court recognized in Pareja that the storm was ongoing and held that commercial landowners did not have the absolute duty and impossible burden to keep sidewalks on their property free from snow or ice during an ongoing storm. Based upon the active storm condition, the court ruled that, absent unusual circumstances, commercial landowners’ duty to remove snow and ice hazards arises not during a storm but, rather, within a reasonable time after a storm.  As in many cases, the court clarified that there are some exceptions to the rule. Those unusual circumstances are set forth in the Pareja holding and state that commercial landowners may be liable if their actions “increase” the risk to pedestrians. For instance, engaging in snow and ice removal while the storm is ongoing, thus allowing a thaw and re-freeze situation, could increase the severity of the risk and change the nature of the accumulation on outside surfaces. Additionally, a commercial landowner may be liable when there is a pre-existing risk on the premises before a storm. For instance, pre-existing snow from a previous storm that had never been removed may create an icy base. In conclusion, the Supreme Court has highlighted the nature of the ongoing storm doctrine. Indeed, New Jersey has not received significant snow fall in the past several years but, rather, has received mixtures of snow and ice, creating the I-95 Corridor effect seen on the Weather Channel. The ongoing storm doctrine permits a commercial property owner to wait until the storm has ended, whether it be ice or snow.      *Carolyn is a shareholder in our Mount Laurel, New Jersey, office. She can be reached at 856.414.6006 or ckbogart@mdwcg.com.   Defense Digest, Vol. 27, No. 5, December 2021 is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2021 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.

Firm Highlights

Thought Leadership

New Jersey Workers’ Compensation Legislation Updates

Since June 1, 2026, there have been no new New Jersey workers’ compensation related cases from the Appellate or Supreme Courts. As such, below will highlight any new legislative updates since February. A1023 | S3984 - Medical Use of Cannabis Under Certain Circumstances This requires workers’ compensation, PIP, and health insurance coverage for the medical use of cannabis under certain circumstances. It was introduced on January 13, 2026 and referred to the Assembly Financial Institutions and Insurance Committee. It was also introduced on March 19, 2026 and referred to the Senate Commerce Committee. A1045  - Certain Injuries to Volunteer and Professional Public Safety and Law Enforcement Personnel This revises workers’ compensation coverage for certain injuries to volunteer and professional public safety and law enforcement personnel. It was introduced on January 13, 2026 and referred to the Assembly Labor Committee. A1384 | S2757 - Reduce Statute of Limitations in Medical Fee Disputes This reduces statute of limitations from six years to two years in medical fee disputes in workers’ compensation matters. It was introduced on January 13, 2026 and referred to the Senate Labor Committee. It was also introduced on the same day and referred to the Assembly Labor Committee. A1870 | S1379 - Workers' Compensation Benefits For Certain Workers Due to September 11, 2001 Terrorist Attacks This provides workers’ compensation benefits for certain public safety workers who developed illness or injury as result of responding to September 11, 2001 terrorist attacks. It was introduced on January 13, 2026 and referred to the Assembly Labor Committee. It was also introduced on the same day and referred to the Senate Labor Committee. On February 5, 2026, it was reported from the Senate Committee, 2nd Reading, and referred to the Senate Budget and Appropriations Committee. A2779 | S1521 - Excludes Certain Illegal Aliens This excludes certain illegal aliens from workers’ compensation and temporary disability benefits. It was introduced on January 13, 2026 and referred to the Senate Labor Committee. It was also introduced on the same day and referred to the Assembly Labor Committee. A2792 | S1555 -  Prevent Intoxicated Employees from Workers’ Compensation This prevents intoxicated employees from receiving workers’ compensation. It was introduced on January 13, 2026 and referred to the Senate Labor Committee. It was also introduced on the same day and referred to the Assembly Labor Committee. A3167 | S2372 - Workers’ Compensation Insurance Requirements for Certain Corporations and Partnerships This concerns workers’ compensation insurance requirements for certain corporations and partnerships. It was introduced on January 13, 2026 and referred to the Senate Labor Committee. It was also introduced on the same day and referred to the Assembly Labor Committee. A3548 | S3571 – Maximum Benefits for Certain Volunteers This provides certain volunteer and other workers with maximum compensation benefit for workers' compensation claim regardless of outside employment. It was introduced on January 13, 2026 and referred to the Senate Labor Committee. On March 2, 2026, it was reported from the Senate Committee, 2nd Reading, and referred to the Senate Budget and Appropriations Committee. It was also introduced on the same day and referred to the Assembly Labor Committee. On May 7, 2026, it was reported and referred to Assembly State and Local Government Committee. A3724 - Personal Liability to Employer Officers for Failure to Pay for Coverage This provides personal liability for owner, executive officer, or executive director of employer for failure to pay for workers' compensation coverage. It was introduced on January 13, 2026 and referred to the Assembly Labor Committee. On May 7, 2026, it was reported and referred to Assembly Judiciary Committee. A4617  - Certain Workers' Compensation Supplemental Benefits and Funding Method This concerns certain workers' compensation supplemental benefits and funding method. For a permanently and totally disabled worker or surviving dependents after December 31, 1979, with some exceptions, this bill provides for an annual cost of living adjustment in the weekly workers’ compensation benefit rate. It was introduced on March 10, 2026 and referred to the Assembly Labor Committee. S241 - Inclusion in Database of Appointed Officials This requires that workers’ compensation judges and administrative law judges be included in database of appointed officials. It was introduced on January 13, 2026 to the Senate, Referred to Senate State Government, Wagering, Tourism & Historic Preservation Committee. S2290 -  Mandatory Retirement Age This increases statutory mandatory retirement age for Supreme Court Justices, Superior Court Judges, Tax Court Judges, Administrative Law Judges, and Workers’ Compensation Judges from 70 to 72. It was introduced on January 13, 2026 and referred to the Senate Judiciary Committee. S3144 - Testimony in Workers’ Compensation This concerns submission of testimony in workers’ compensation claims. It was introduced on January 13, 2026 and referred to the Senate Labor Committee. S3342  - Increase Mandatory Retirement Age This increases statutory mandatory retirement age for Supreme Court Justices, Superior Court Judges, Tax Court Judges, Administrative Law Judges, and Workers’ Compensation Judges from 70 to 75. It was introduced on February 5, 2026 and referred to the Senate Judiciary Committee.

Thought Leadership

Commonwealth Court Holds That a Claimant Who Was Struck By a Car While Crossing the Street During an Unpaid Break Was In the Course and Scope of Employment

This case involved a claim petition filed by a claimant who sustained injuries after being struck by a vehicle while crossing the street in front of the employer’s premises. The employer denied the claim based on course and scope, as the accident occurred during one of two mandatory fifteen (15) minute breaks provided to the claimant. The claimant would punch out at the beginning of a break and punch back in when the break was over.  On the date of the incident, the claimant punched out and left the building to get lunch at a restaurant, which required her to cross the employer’s parking lot, and then a public street, where the injury occurred. The Workers Compensation Judge (WCJ) dismissed the petition, noting that that during the two mandatory fifteen-minute breaks per shift allowed by the employer, the claimant was free to leave the employer’s premises, and during breaks, permitted to engage in whatever activity she desired. The WCJ found that at the time of the accident, the claimant was on her own time, in the middle of the street, and going to get lunch.   The claimant filed an appeal with the Worker’s Compensation Appeal Board (Board), and the Board reversed.  According to the Board, the claimant’s location was still on the employer’s premises, as the claimant was taking her customary route while using a reasonable ingress/egress from the employer.  Further, the Board found that the “Personal Comfort Doctrine” applied, as the claimant was on a momentary departure to take care of her personal comfort, within the window of time she was allotted for her break.  The Board remanded the case, and a WCJ granted the claim petition.  The Board affirmed, and the employer appealed to the Commonwealth Court. Before the Court, the employer argued that the claimant was not in the course and scope of her employment, because the injury did not occur on its premises, and the claimant was outside the bounds of the Personal Comfort Doctrine. The Court, however, rejected these arguments, and dismissed the employer’s appeal.  The Court noted that the break given to the claimant was so cursory, when she set out to relieve her hunger for her own personal comfort,  she remained in the course of her employment when she sustained her injuries.  A Petition for Allowance of Appeal in the Supreme Court has been filed by the Employer, Giant Eagle.

Thought Leadership

Appellate Court Rejects Horizontal Immunity Defense to Company Not Acting as Statutory Subcontractor

The First District Court of Appeal held that a property management company was not entitled to horizontal immunity under section 440.10(1)(e), Florida Statutes, in a negligence action brought by an employee of another company working on the property. The claimant was injured while servicing a swimming pool at an apartment complex. His employer had contracted with the property owner to maintain the pool. Following the accident, the claimant received workers' compensation benefits through his employer’s carrier. The claimant subsequently filed a negligence action against the property management company, alleging that it failed to maintain the premises in a reasonably safe condition and failed to warn him of a dangerous condition that caused his injuries. The property management company had been retained by the property owner to maintain the complex in good operating condition and to perform routine maintenance and repair work. The property management company argued that it was immune from suit under section 440.10(1)(e) of Florida’s Workers’ Compensation Law. That provision grants immunity to a subcontractor providing services in conjunction with a contractor on the same project or contract work from civil actions brought by employees of another subcontractor, subject to limited exceptions. According to the property management company, it qualified as a subcontractor working on the same project as the claimant’s employer and was therefore entitled to horizontal immunity. The trial court agreed and entered summary judgment in its favor. On appeal, however, the claimant argued, and the appellate court agreed, that horizontal immunity applies only when a contractor has sublet work arising from a contractual obligation owed to a third party. The court noted that prior decisions consistently held that an entity acting solely on its own behalf as the owner of property, rather than pursuant to a contract with a third party, is not a “contractor” under section 440.10(1), even when it hires other companies to perform work on the property. In Teed, the property management company could not establish that the property owner had a primary contractual obligation to a third party to maintain either the apartment complex or the swimming pool, which it then delegated to the claimant’s employer or the property management company. As a result, the property owner did not qualify as a statutory contractor, and the property management company was not a subcontractor entitled to horizontal immunity under section 440.10(1)(e). The First District therefore reversed the lower court’s ruling and remanded the case for further proceedings on the claimant’s negligence claim.