.

Jonathon E. Cross

Co-Chair, Amusements, Sports & Recreation Liability Practice

Portrait of Jonathon E. Cross

Jon focuses his practice on a wide range of casualty matters, with particular emphasis on amusements, sports and recreation liability claims. As a former athlete, Division-I college baseball coach, and camp owner, Jon brings a unique and comprehensive perspective to representing and defending sports, amusement, and recreation facility owners, coaches, instructors, youth athletic organizations, professional athletes, educational institutions, and college fraternities against various claims. His extensive background enables him to effectively navigate the complexities of defending against claims within these educational institutions and organizations, including those involving specific sports such as football, soccer, basketball, ice hockey, baseball, lacrosse, and track and field. He also has extensive experience defending a wide range of recreational and entertainment facilities, including trampoline parks, water parks, roller skating centers, amusement parks, zip line adventure courses, rock climbing wall centers, go-kart tracks, bowling alleys, indoor sports centers, golf courses, aquatic clubs, camps, martial arts studios, white water rafting companies, concert venues, sports stadiums, resorts, liquor establishments, and more.

With the emergence of sports related concussion claims, Jon advises and represents school districts, colleges, youth leagues, trainers, referees and recreational parks in claims that arise from failure to recognize a concussion and the failure to follow return-to-play protocol.  Further, Jon handles the catastrophic injury related sports and recreation claims sustained by concussions, the second impact syndrome, drownings, and other serious bodily injuries.

Jon also serves as Marshall Dennehey’s representative on the Insurance Law Global Sports and Recreation committee, where he presents and authors articles on emerging sports litigation topics.

On the professional liability side, Jon provides legal counsel and representation to contractors, architects and engineers, accountants, attorneys, insurance brokers, real estate brokers and financial advisors in a wide range of matters including legal malpractice, accounting malpractice, wrongful use of civil process, abuse of process, negligence and breach of contract claims.

Outside of his law practice, Jon serves on the Executive Board of the Richie Ashburn Foundation, which raises funds to provide over 19 free baseball camps and clinics yearly to children throughout the Philadelphia and suburban area.  He works with the Foundation to raise funds to support blind and visually impaired children to play "beep" baseball. 

Jon coached four seasons of Division-I baseball at the University of Pennsylvania. Previously, he coached for nine years at Germantown Academy, where he also was a member of the Board of Trustees (eight years) and served as chair of the sports/athletic committee.  Jon additionally was a head baseball coach at the William Penn Charter School in Philadelphia, and he formerly operated his own winter and summer baseball camps.  

    • Villanova University Charles Widger School of Law (J.D., 1996)
    • Lafayette College (B.A., 1993)
    • Pennsylvania, 1996
    • Pennsylvania Super Lawyers Rising Star (2006-2008, 2010-2011)
    • Germantown Academy, Fort Washington, PA, Board of Trustees (1999-2007)
    • Germantown Academy, Fort Washington, PA, Sports Committee Chair (1999-2007)
    • Pennsylvania Bar Association
    • Philadelphia Bar Association
    • Richie Ashburn-Harry Kalas Foundation, Executive Board Member (1998 - present)
    • Insurance Law Global - Sports and Recreation Committee, 2020- Present
    • International Amusement and Leisure Defense Association, Inc. (IALDA), Member
    • Sports and Entertainment Risk Management Alliance, (SERMA), Member
    • Information Gathering for New Claims and Prevention of Spoliation, 5th Annual ideal3 Summit, Minneapolis, MN, June 2026
    • Legal Roundtable, Amusement Industry Manufacturers and Suppliers (AIMS) Conference, Orlando, FL, January 15, 2026
    • Defensibility Strategies – Reduce Liability: Supervision & Documentation, International Adventure & Trampoline Park Association’s (IATP) Annual Conference, September 10, 2025
    • Litigation Basics - The Complaint, Marshall Dennehey Client Webinar, April 17, 2025
    • Legal Roundtable, Amusement Industry Manufacturers and Suppliers (AIMS) Conference, Orlando, FL, January 16, 2025
    • Health Club Claims, Marshall Dennehey Client Webinar, February 5, 2025
    • Florida Tort Reform, Marshall Dennehey Client Presentation, October 1, 2024
    • Concussion: Is the Long Ball Game Finally Finished? ILG 360º London Annual Conference 2023, March 15, 2023
    • Negligent Security Claims, Marshall Dennehey Client Presentation, January 25, 2023
    • Concussion in Sport - Causation and Risk Management in the Spotlight, Insurance Law Global Webinar, October 6, 2022
    • Concussion Litigation - It's Heading Your Way, Insurance Law Global Virtual Conference, March 26, 2021
    • From the NFL to Friday Night Lights...Tackling Concussion Litigation, Philadelphia Insurance Companies, October 4, 2017
    • The Present and Future of Concussion Litigation, Philadelphia Insurance Companies' Continuing Education Program, May 2017
    • Sports Tort Liability and Risk Management, University of Delaware, Sports & Facility Management Department, November 2016
    • What Insurance Professionals Should Know About Emerging Sports Liability Issues, A.M. Best Webinar, October 13, 2016
    • From the NFL to Friday Night Lights...Emerging Youth Sports Concussion Claims and Risk Management, Insurance Casualty Actuaries of New England, April 7, 2016
    • Athletic Risk Management and Concussion Litigation, University of Delaware, Sports & Facility Management Department, October 2015
    • Youth Sports Risk Management, New Jersey Recreation & Park Association's 2015 Annual Conference, Atlantic City, NJ, March 2015
    • Tackling Concussion Litigation, New Jersey Recreation & Park Association's 2015 Annual Conference, Atlantic City, NJ, March 2015
    • Youth Sports Risk Management, University of Delaware, Sports & Facility Management Department, March 2015
    • Tackling Concussion Litigation, University of Delaware, Sports & Facility Management Department, March 2015
    • Emerging Claims -- Youth Sports Concussion Litigation, Casualty Actuarial Society's Centennial Conference, New York, NY, December 2014
    • “‘No-duty’ Rule is Key to the Successful Defense of Sports Injury Lawsuits in Pennsylvania, U.S.A.”, The Sports Bulletin 3rd Edition, Insurance Law Global, August 2024
    • "Parents Are Precluded From Waiving Child's Rights to Jury Trial in Pennsylvania," The Sports Bulletin, 2nd Edition, January 2024, Insurance Law Global 
    • "Appellate decision in the Pennsylvania zipline case may permit general pleadings for recklessness and gross negligence, which may nullify the early effectiveness of the defense of waiver and release," The Sports Bulletin, 1st Edition 2023, Insurance Law Global, March 2023.
    • "Heads Up and Watch Out! Potential Liability for Traumatic Brain Injury Pursuant to the Safety in Youth Sports Act," Defense Digest, Vol. 23, No. 4, December 2017
    • "Boom! Lightning Liability at University Athletic Events," URMIA Journal, September 2015
    • “Fair Game? Legal Exposures Alter the Playing Field for Youth Sports,” Defense Digest, Vol. 21, No. 1, March 2015
    • "Cover All The Bases," Avoiding Youth Sports Injury Lawsuits, Camp Business Magazine, August 2014
    • "Fair Game? Legal Exposures Alter the Playing Field for Youth Sports," PropertyCasualty360.com, May 2014
    • "Court Recognizes Misconduct When Jurors Seek Out Their Own Expert Opinion," Defense Digest, Vol. 11, No. 2, June, 2005
    • "The Witness Immunity Doctrine Does Not Preclude Experts From Being Sued for Professional Malpractice," Professional Liability Underwriting Society, PLUS Journal, May 2000
    • "Obtaining Records With Fewer Headaches," (Co-Author), Defense Digest, Vol. 4, No. 6, 1998
    • "New Procedures Complicate Production of Documents By A Non-Party," Defense Digest, Vol. 3, No. 6, 1997
    • "Pennsylvania Superior Court Rules On Statute of Limitations For Defendants Who Leave The Commonwealth," Defense Digest, Vol. 3, No. 5, 1997
    • "Procedural Difficulties with New Discovery Rule",  MDWCG Legal Malpractice Handbook, October 1998
    • "Effect of Fiorantino on Legal Malpractice Claims for Breach of Contract", MDWCG Legal Malpractice Handbook, October 1998
    • "Legal Malpractice Defense that a Claim is Premature", MDWCG Legal Malpractice Handbook, 1999
    • "Continuous Representation Rule Still Not the Law in Pennsylvania", MDWCG Legal Malpractice Handbook, 1999
    • Success in defending trampoline parks in large loss lawsuits.
    • Success in defending indoor water parks. 
    • Success in defending indoor athletic recreation facility. 
    • Success in defending indoor rock-climbing facilities. 
    • Success in defending amusement parks.
    • Success in obtaining an defense verdict for major league baseball team and a former professional player.
    • Success in obtaining an order to dismiss a multi-million dollar gas station fire lawsuit.
    • Success in defending construction contractor for alleged OSHA violations. 
    • Success in defending a multi-million dollar lawsuit relating to defective fireworks.
    • Success in obtaining a dismissal of a lawsuit against a security guard company.
    • Success in handling multi-million dollar claims and obtaining favorable outcomes.
    • Success in obtaining a dismissal of a legal malpractice case pursuant to plaintiff's failure to comply with the Pennsylvania Rules of Civil Procedure.
    • Success in defending a golf club at trial for premises liability.
    • Success in litigating numerous cases involving school districts and universities involving claims for negligence, discrimination and athletic field liability.
    • Success in obtaining a jury verdict in favor of a major check cashing company.
    • Success in obtaining defense verdict in a wrongful use of civil proceedings claim.

Results

Summary Judgment Secured in a Case Involving a Trampoline Park Injury

We obtained summary judgment in a lawsuit arising from an injury suffered at an indoor trampoline park. During the deposition, the plaintiff admitted that there are inherent risks of engaging in trampoline activities, including the risk of being injured. Under the no-duty rule, a defendant owes no duty of care to warn, protect, or insure against risks which are common, frequent, expected and inherent in an activity. In the motion for summary judgment, it was argued that a trampoline park has no duty to protect patrons from the inherent risks of injury when jumping from a trampoline. The court opined that the no-duty rule was implicated and granted summary judgment in favor of all defendants.

Company Under Fire in Product Liability Suit Had No Duty to Install or Advise to Install New Valves

We were successful on a motion for summary judgment that was granted dismissing all claims against our client, an environmental compliance services and tank testing company, in a case where the plaintiff made an $8.75 million settlement demand. ​The plaintiffs, a minor mother and child, were at a gas station in Philadelphia when a vehicle inadvertently struck a fuel dispenser, knocking it over and causing a fire and explosion. The claims and cross-claims asserted against our client alleged it should have installed or advised the gas station owners to install a valve that would have prevented the fuel leakage that exacerbated the fire. We filed a summary judgment motion arguing that the claims and cross-claims asserted against our client went beyond the scope of the environmental compliance services it was hired to perform such that our client had no duty to either install or advise of installing different valves. The court granted our motion dismissing all claims and cross-claims against our client.

Thought Leadership

Firm Highlights

News

106 Marshall Dennehey Attorneys Recognized in the 2027 Editions of The Best Lawyers in America® and the Best Lawyers: Ones to Watch® in America

Marshall Dennehey is proud to highlight the firm’s 106 attorneys who have been recognized in the 2027 editions of The Best Lawyers in America® and the Best Lawyers: Ones to Watch® in America. Less than 6% of all practicing lawyers in the U.S. were selected by their peers for this recognition. Additionally, four of the firm’s attorneys received the Best Lawyers® 2027 “Lawyer of the Year” awards in their respective practice areas and demographic regions. Since it was first published in 1983, Best Lawyers® has become universally regarded as the definitive guide to legal excellence. Best Lawyers lists are compiled based on an exhaustive peer-review evaluation. For more information, please visit https://www.bestlawyers.com/. OUR 2027 LAWYERS OF THE YEAR Harrisburg, PA Christopher Reeser, Personal Injury Litigation - Defendants Kacey Wiedt, Workers Compensation Law - Employers Roseland, NJ Justin F. Johnson, Medical Malpractice Law - Defendants Leonard Leicht, Personal Injury Litigation - Defendants   OUR 2026 BEST LAWYERS IN AMERICA Philadelphia, PA Nicholas D. Bowers, Personal Injury Litigation - Defendants Josh J. T. Byrne, Professional Malpractice Law - Defendants Jefferey J. Chomko, Insurance Law James H. Cole, Insurance Law John J. Delany III, Personal Injury Litigation - Defendants Laurianne Falcone, Personal Injury Litigation - Defendants John P. Gonzales, Employment Law - Management John Hare, Appellate Practice Daniel D. Krebbs, Personal Injury Litigation - Defendants Michele Punturi, Workers' Compensation Law - Employers Bradley D. Remick, Product Liability Litigation - Defendants Andrea Cicero Rock, Workers' Compensation Law - Employers Robin M. Romano, Workers' Compensation Law - Employers Daniel J. Ryan, Jr., Personal Injury Litigation - Defendants Gary M. Samms, Professional Malpractice Law - Defendants Christopher N. Santoro, Personal Injury Litigation – Defendants; Product Liability Litigation -Defendants Josh D. Scheets, Personal Injury Litigation - Defendants Robert P. Schenk, Workers' Compensation Law - Employers Robert E. Smith, Insurance Law Robin Snyder, Litigation - Health Care Michael L. Turner, Commercial Litigation; Criminal Defense: White-Collar; Mass Tort Litigation / Class Actions - Defendants Claire Breaux Ventola, Product Liability Litigation - Defendants Pittsburgh, PA Melissa Devich Cochran, Commercial Litigation; Mass Tort Litigation / Class Actions – Defendants; Product Liability Litigation - Defendants  John F. Deasy, Personal Injury Litigation – Defendants; Product Liability Litigation - Defendants Daniel W. Deitrick, Workers' Compensation Law - Employers Douglas C. LaSota, Litigation - Construction; Mass Tort Litigation / Class Actions - Defendants Joseph V. Lesinski, Product Liability Litigation – Defendants   Christian D. Marquis, Personal Injury Litigation - Defendants Patricia A. Monahan, Insurance Law; Litigation - Insurance Patrick T. Reilly, Commercial Litigation; Mass Tort Litigation / Class Actions – Defendants; Product Liability Litigation - Defendants Brett C. Shear, Medical Malpractice Law - Defendants Teresa O. Sirianni, Education Law; Employment Law – Management; Litigation - Labor and Employment Stuart Sostmann, Product Liability Litigation – Defendants Danielle M. Vugrinovich, Mass Tort Litigation / Class Actions - Defendants Scranton, PA Sarah E. Argo, Litigation - Insurance Michael J. Connolly, Personal Injury Litigation – Defendants; Professional Malpractice Law - Defendants Matthew Keris, Litigation - Health Care; Medical Malpractice Law - Defendants John T. McGrath, Jr., Insurance Law; Medical Malpractice Law – Defendants; Product Liability Litigation - Defendants William J. McPartland, Insurance Law John R. Nealon, Product Liability Litigation - Defendants Victoria Scanlon, Health Care Law; Litigation - Health Care; Medical Malpractice Law - Defendants Michael A. Sebastian, Workers' Compensation Law - Employers Thomas A. Specht, Insurance Law; Litigation - Insurance Suzanne Tighe, Litigation Insurance Harrisburg , PA Casey Alan Coyle, Administrative/Regulatory Law; Appellate Practice; Commercial Litigation Brittany E. Bakshi, Personal Injury Litigation - Defendants Shannon P. Fellin, Workers' Compensation Law - Employers Allison Krupp, Insurance Law John R. Ninosky, Litigation – Insurance; Personal Injury Litigation - Defendants Christopher Reeser, Personal Injury Litigation - Defendants Kacey Wiedt, Workers' Compensation Law – Employers King of Prussia, PA  Michael L. Detweiler, Construction Law Joseph L. Hoynoski III, Medical Malpractice Law - Defendants Gregory J. Kelley, Construction Law, Litigation - Construction Anthony Natale III, Workers' Compensation Law - Employers Francis X. Wickersham, Workers' Compensation Law - Employers A. Judd Woytek, Workers' Compensation Law – Employers Erie, PA Patrick M. Carey, Personal Injury Litigation - Defendants Joel M. Snavely, Health Care Law; Insurance Law New Haven, CT Michael Wrona, Commercial Litigation, Litigation - Bankruptcy  Mount Laurel, NJ David D. Blake, Litigation - Insurance Barbara Davis, Personal Injury Litigation - Defendants Lynne Nahmani, Litigation - Health Care John H. Osorio, Personal Injury Litigation - Defendants John L. Slimm, Legal Malpractice Law – Defendants; Professional Malpractice Law – Defendants Roseland, NJ Robert T. Evers, Medical Malpractice Law - Defendants Justin F. Johnson, Medical Malpractice Law - Defendants Julia Klubenspies, Medical Malpractice Law - Defendants Leonard C. Leicht, Personal Injury Litigation - Defendants Patricia M. McDonagh, Appellate Practice Sunny Sparano, Litigation - Construction Randall S. Watts, Health Care Law New York, NY Tonya M. Lindsey, Medical Malpractice Law - Defendants Tampa, FL Michael Archibald, Personal Injury Litigation - Defendants Lindsay G. McCormick, Litigation – Construction Orlando, FL Thomas F. Brown, Personal Injury Litigation - Defendants Dante C. Rohr, Commercial Litigation Fort Lauderdale, FL Kimberly Kanoff Berman, Appellate Practice Patrick M. Delong, Personal Injury Litigation – Defendants Jacksonville, FL  Heather Byrer Carbone, Workers' Compensation Law - Employers Linda Wagner Farrell, Workers' Compensation Law - Employers Elizabeth B. Ferguson, Litigation - Construction James P. Hanratty, Personal Injury Litigation – Defendants Wilmington, DE Sarah B. Cole, Litigation - Insurance Benjamin K. Durstein, Workers' Compensation Law - Employers Maria R. Granaudo, Medical Malpractice Law - Defendants  Keri L. Morris-Johnston, Workers' Compensation Law - Employers Cincinnati, OH Timothy B. Schenkel, Personal Injury Litigation - Defendants David E. Williamson, Personal Injury Litigation - Defendants Cleveland, OH Vincent E. Cononico, Litigation – Insurance, Personal Injury Litigation - Defendants Jillian L. Dinehart, Personal Injury Litigation - Defendants David J. Fagnilli, Insurance Law Jason P. Ferrante, Health Care Law, Litigation - Health Care Andrew H. Isakoff, Transportation Law Leslie M. Jenny, Litigation - Health Care; Medical Malpractice Law – Defendant OUR 2026 BEST LAWYERS: ONES TO WATCH Jacksonville, FL Sean J. Reeves, Personal Injury Litigation – Defendants; Product Liability Litigation - Defendants Orlando, FL Carolin A. Pacheco, Insurance Law Mount Laurel Stacey Gorin, Insurance Law Melville, NY Kimberly Gitlin, Personal Injury Litigation – Defendants Matthew A. Gray, Insurance Law; Personal Injury Litigation - Defendants Philadelphia, PA Holli K. Archer, Health Care Law; Medical Malpractice Law – Defendants; Professional Malpractice Law Emily Pritchyk, Commercial Litigation; Product Liability Litigation – Defendants Pittsburgh, PA Taylor E. Kosko, Mass Tort Litigation / Class Actions – Defendants; Personal Injury Litigation - Defendants Alana Staniszewski, Workers' Compensation Law - Employers Michael D. Winsko, Product Liability Litigation – Defendants; Transportation Law King of Prussia, PA Richard Lechette, Commercial Litigation; Insurance Law, Personal Injury Litigation – Defendants

Thought Leadership

Commonwealth Court Deemed Worker an Employee Despite Independent Contractor Agreement; Insurer Estopped from Denying Coverage

In this case, the claimant filed a Claim Petition for injuries sustained on October 28, 2019, naming J&S as his Employer, and alleging that the injuries occurred when he fell from a ladder while installing a satellite dish for Dish Network. Dish Network contracted with J&S to install satellite dishes. Subsequently J&S filed a Petition to Join Brickstreet Insurance Company and the claimant filed a Claim Petition against the Uninsured Employer Guaranty Fund. The Fund then joined Dish Network as another employer.  Before the Workers’ Compensation Judge (WCJ), the claimant testified that he was hired in 2015 by J&S and at the time signed an Independent Contractor Agreement (IC Agreement). J&S defended the case on the basis that the claimant was not an employee, but was an independent contractor, even after the IC Agreement expired. Additional evidence showed that, at the time of the October 28, 2019, work injury, J&S’ workers’ compensation insurance with Brickstreet had lapsed, even though a Brickstreet agent had been working to renew J&S’ policy and had a Certificate for coverage from September 25, 2019 to September 25, 2020 issued, with Dish Network listed as the Certificate Holder. A renewal policy was not in effect at the time the Certificate was issued and the agent learned on October 25, 2019 that Brickstreet was not going to renew their policy with J&S, due to an unpaid premium.    Ultimately, the WCJ found that the claimant was an employee of J&S at the time of the work injury and that J&S did not have a workers’ compensation policy in place at the time, due to their failure to pay the renewal premium to Brickstreet. The WCJ also found Dish Network was a Statutory Employer under Section 302(a) of the Act. The Claim Petition and the Guaranty Fund Claim Petition were both granted, as was the Guaranty Fund’s Petition to Join Dish Network. The WCJ also denied J&S’ Petition to Join Brickstreet, finding that neither J&S or Dish Network showed that Brickstreet was estopped from denying coverage. J&S and Dish Network appealed to the Workers’ Compensation Appeal Board (Board) and the Board affirmed. J&S and Dish Network appealed to the Commonwealth Court. The Commonwealth Court rejected J&S' argument that the claimant was an independent contractor. In doing so, the court noted that the claimant credibly testified that he worked for J&S full time, could not work for another company, and that J&S, scheduled his jobs, tracked him, and scheduled additional installations, if he finished early. Additionally, the court noted the claimant lacked discretion in the manner he performed his job, because all questions had to be referred to J&S.  As for Dish Network’s appeal, the court held that the WCJ erred in holding that Brickstreet was not estopped from denying coverage as to Dish Network. According to the court, the insurance agent was an authorized representative of Brickstreet and, at the direction of J&S, issued the Certificate of Insurance that he knew was not accurate at the time, and was aware would be presented as proof of coverage for J&S. Dish Network relied upon that information and continued to use J&S, ultimately leading to Dish Network being named as the Statutory Employer liable for payment of benefits because of J&S’ uninsured status. The court held that the Board erred in affirming the WCJ ’s conclusion that Dish Network did not establish that Brickstreet was equitably estopped from denying coverage, reversed the decision below, and remanded the case to the WCJ. 

Thought Leadership

Florida Supreme Court Adopts Traditionally More Expansive Concept of Occupational Causation

The Florida Supreme Court issued a significant decision rebuking the First District Court of Appeal (1st DCA) in the high-profile case of Bouayad v. Normandy Insurance Co., a case addressing the compensability of workplace injuries resulting from assaults by third-party tortfeasors. The Judge of Compensation Claims (JCC) found the claimant was entitled to workers' compensation benefits, relying in part on the Florida Supreme Court's earlier decision in Strother v. Morrison Cafeteria from 1980. In Strother, the Court upheld an award of benefits to a cashier who was assaulted and robbed by individuals who followed her home from work under the mistaken belief that she was carrying restaurant cash deposits. In Bouayad, the 1st DCA concluded that the claimant's injuries were not compensable because they did not arise out of his employment. The Florida Supreme Court disagreed, holding that the 1st DCA applied too narrow an interpretation of the "arising out of employment" requirement. In doing so, the Court reaffirmed a broader and more traditional view of occupational causation than that recently adopted by the 1st DCA. The claimant in Bouayad was the general manager of a car rental business operating from a hotel near an airport. Around midnight, while walking along a covered outdoor walkway from the hotel's atrium, where the rental kiosk was located, to an office near the pool, he was shot multiple times by an unidentified assailant. As part of his regular duties, the claimant carried rental agreements and cash receipts from the kiosk to the office at the end of each shift. After the shooting, the claimant managed to return to the hotel atrium, where he stated that he believed "Robert" had shot him, referring to an individual who had threatened the claimant's son the previous day. The assailant, however, was never identified. Consequently, the Supreme Court analyzed the case as involving an unknown third party while the claimant was acting within the course and scope of his employment. The central issue therefore was whether the injury "arose out of" the claimant’s employment. At the final hearing, the claimant presented evidence regarding the risks and hazards associated with his employment, including the nature of his duties, his late-night work schedule, and the location of the business in a high-turnover hotel near a major airport. His expert opined that these factors exposed him to an increased risk of becoming the victim of a crime while at work. In contrast, the employer/carrier's expert characterized the shooting as a targeted attack rather than a robbery and asserted that the risk of violent crime was actually higher near the claimant's residence than at the hotel. Based on that analysis, the expert concluded that the claimant was not exposed to an increased workplace risk. The 1st DCA focused narrowly on the specific activity the claimant was performing at the moment of injury. According to the court, the claimant's “work performed” at the time of the shooting was simply "walking" between two employer-operated locations, and that act of walking did not itself cause the injury. The Florida Supreme Court found this analysis far too myopic and inconsistent with decades of workers' compensation precedent. Reaffirming longstanding principles of workplace causation, the Court explained that the proper inquiry is not whether the precise physical task being performed at the moment of injury directly caused the harm. Rather, the relevant question is whether the employment, viewed as a whole, exposed the worker to risks and hazards that contributed to the injury. The decision is significant because it reinforces a broader conception of work-relatedness in the “arising out of” compensability analysis. Instead of limiting the causation analysis to the employee's discrete physical activity at the time of injury, courts must consider the totality of the employment circumstances, including the employee's duties, work environment, hours, and occupational risks. Under that framework, an injury may arise out of employment when the employment places the employee in a position of increased hazard, even if the specific task being performed at the moment of injury is not itself the direct cause of the harm.

Thought Leadership

Appellate Division Affirmed Trial Judge’s Orders Granting Summary Judgement for Defendants on COVID-19 Case

In Dunne v. Advanced Subacute Rehab Servs. at Sewell, LLC, et al., the plaintiffs appealed from two Law Division orders. By way of background, Louis Doto, Sr. (Doto) worked for BP & SC Services, Inc. (BP). BP leased Doto to Advanced Subacute Rehabilitation Center at Sewell, LLC (Advanced Subacute) and it had control of his work, paid wages, and had the power to hire or fire him. A BP employee was assigned to the facility to train and supervise him and BP was responsible for securing workers’ compensation coverage. Doto worked as an aide in the laundry department. Linen from COVID-19 residents were delivered in clearly marked bags and he had no direct contact with residents. A co-worker, Sheila Smith, was also an aide and she never contracted COVID-19 at the facility. Advanced Subacute did not require Doto to wear an N-95 mask, but instead a surgical mask, though N-95 masks were available to all employees. He was also required to attend period mandatory meetings with other high-risk employees, the last of which he attended was in November 2020. All employees were required to test for COVID-19 and there were no reported cases from June to October 2020. On December 23, 2020, Doto tested positive for COVID-19 and passed away on January 18, 2021. The last member of housekeeping that Doto may have encountered tested positive 22 days earlier. After his death, OSHA found two “serious” violations concerning the N-95 masks worn by housekeepers. In response, Advanced Subacute fit tested all non-clinical staff. Doto’s estate filed a workers’ compensation claim and named both BP and Advanced Subacute as his employer. The estate received an award. In July 2022, the plaintiffs filed a complaint in the Law Division, alleging wrongful death and survivor causes of action. In October 2024, the defendants moved for summary judgment, arguing: 1) immunity pursuant to the Emergency Health Powers Act: 2) the exclusive remedy provision of the Workers’ Compensation Act; 3) Doto’s inability to establish infection at the facility; 4) net expert opinions by the plaintiffs’ expert; and 5) inadmissibility of the OSHA report. The plaintiffs opposed and filed a cross-motion for summary judgment, arguing: 1) no immunity as Advanced Subacute engaged in gross negligent or willful misconduct; 2) no preclusion by the Workers’ Compensation Act as Doto was not Advanced Subacute’s employee; and 3) no net expert opinions. In February 2025, the judge issued a written decision granting the defendants’ motion. Specifically, he found Advanced Subacute’s COVID-19 immunity precluded the plaintiffs’ claim as no reasonable jury could find any gross negligence or utter disregard for Doto’s safety. He also addressed the other defenses for completeness. The plaintiffs moved for reconsideration and the judge issued another written decision denying the plaintiffs’ motion in April 2025. The plaintiffs then appealed both decision. The Appellate Division affirmed the orders for reasons stated by the judge in his written decisions. The Appellate Division only added: 1) Advanced Subacute acted consistently with the legislative grant of immunity; 2) there was no doubt Doto was an employee of both BP and Advanced Subacute and the latter may have inadvertently failed to follow some precautions; and 3) confirmed the plaintiffs’ experts did not identify a basis for their opinions. Ultimately, the Appellate Division found no reason to disturb the judge’s well-reasoned decisions and affirmed the judge’s orders.