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What's Hot in Workers' Comp

Appellate Division Affirms Dismissal of Construction Zone Death Suit Against employer and Engineering Firms Based on Workers’ Compensation Bar and Failure to Serve Affidavits of Merit.

Estate of Mike Alexander, Deceased, et al. v. Northeast Sweepers, et al., No. A-1486-23 (June 19, 2025)

August 1, 2025

by Kiara K. Hartwell

On July 11, 2014, Michael Alexander was struck and killed by a sweeper truck while working in an active construction zone on the New Jersey Turnpike. Northeast Sweepers owned the truck, which was driven by Christopher Hackett. Crisdel Group, Inc. was the decedent’s employer and was hired as the general contractor. HAKS Engineers, Architects and Land Surveyors, P.C. was retained by New Jersey Transit Authority to provide “professional services” for the resurfacing project, including supervision to ensure compliance. John Schweppenheiser, a HAKS employee and licensed professional engineer, was the project manager. HAKS then subcontracted the construction inspection services to Johnson, Mirmiran & Thompson, Inc. (JMT). Lawrence Fink, a JMT employee and licensed professional engineer, was the supervisor. 

Christopher Hackett drove his sweeper around a milling machine and struck Alexander, who was taken to a hospital and passed away approximately a month later. While it was Crisdel’s practice to assign a dump truck to each sweeper truck, there was none near Hackett’s sweeper at the time of the accident. After the accident, OSHA cited Crisdel for violations; failure to provide a place of employment free from recognized hazards and to establish a pre-planned traffic pattern. It was noted to be a serious violation, but not willful or repeated. 

In October 2014, the plaintiffs filed a complaint, which they amended in January 2016 to add claims against HAKS and JMT. In the amended complaint, the plaintiffs alleged intentional wrongs, noting that HAKS and JMT were responsible for supervision of the site and that they had negligently supervised the project. Because Alexander and his estate received workers’ compensation benefits, Crisdel’s answer asserted the affirmative defense that the plaintiffs’ claims were barred by the Workers’ Compensation Act. HAKS’ answer demanded compliance with the affidavit of merit statute, and JMT’s answer made no reference, but did assert a general defense of failure to state a claim. 

In June 2017, HAKS and JMT moved to dismiss the claims for failure to serve affidavits of merit. After oral arguments, the trial court issued orders dismissing the claims, noting the negligence was in their professional capacities as engineers, therefore, affidavits of merit were needed. The plaintiffs then filed a motion for reconsideration and submitted two affidavits from professional engineers, who certified that the work HAKS and JMT performed only involved supervision, not professional engineering services. The trial court denied the motion for reconsideration in September 2017. 

After the Appellate Division granted leave to appeal, the orders dismissing the claims against HAKS and JMT were reversed for a more complete record on whether the claims required the affidavit of merit requirement. On remand, additional expert discovery was performed, and all parties produced more expert reports. In April 2018, Crisdel moved for summary judgment, and after oral arguments, the trial court granted summary judgment as the plaintiffs failed to produce evidence that Crisdel committed an intentional wrong as this was the type of accident that occurred in constructions areas. 

In May 2019, HAKS and JMT moved for summary judgment, arguing the plaintiffs’ claims involved professional engineering service malpractice claims. The trial court agreed and granted summary judgment, noting the expert reports and deposition testimony revealed the duties of HAKS and JMT were within the practice of engineering. As such, the plaintiffs needed to submit an affidavit of merit and failure to do so required dismissal of their claims. 

The other defendants were all dismissed at various times. In December 2023, the plaintiffs resolved their claims against Northeast Sweepers and Hackett. The plaintiffs then appealed the June 22, 2018, order granting summary judgment to Crisdel and the July 26, 2019, orders granting summary judgment to JAKS and JMT.

The Appellate Division reviewed, under the de novo standard, and delved into the Workers’ Compensation Act as well as case law regarding intentional wrongs. While the plaintiffs identified six areas (work lighting, audible backup alarms, properly functioning mirrors, dedicated dump trucks, use of spotters and written traffic control plan) that were allegedly known and ignored by Crisdel, the Appellate Division found none of them were evidence of an intentional wrong within the meaning of the Workers’ Compensation Act. The Appellate Division also noted the OSHA violations were only “serious” and not “willful.” As such, the Appellate Division affirmed the grant of summary judgment to Cristel.

As for the summary judgment granted for HAKS and JMT, the Appellate Division reviewed the case law for a claim against a licensed professional covered by the affidavit of merit statute. The Appellate Division noted it was undisputed that both defendants were engineering and architectural companies and that HAKS was retained by New Jersey Transit Authority for professional engineering services. HAKS then retained JMT, and under the terms of the subcontract, all work performed by JMT was required to be done under the “direct supervision” of “licensed professional” engineers. Given the undisputed evidence showed HAKS and JMT were providing professional engineering services and the plaintiffs failed to timely serve affidavits of merit, the Appellate Division affirmed the grant of summary judgment to HAKS and JMT. 


 

What’s Hot in Workers’ Comp, Vol. 29, No. 8, August 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. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2025 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.

Firm Highlights

Thought Leadership

U.S. Supreme Court Decides Key Issue Regarding Interstate Freight Broker Liability

Freight brokers are intermediaries.  They connect shippers of goods with trucking companies that transport those goods.  Freight brokers match a load of freight with a trucking company and oversee the logistics of the transportation. For a number of years there has been a division among the Federal Circuits regarding the potential liability of freight brokers when the trucking companies that they retain for interstate loads are involved in accidents.  At the center of this division was the Federal Aviation Administration Authorization Act of 1994 (FAAAA).  Some Federal Circuit Courts have held that state law negligent hiring claims against freight brokers were preempted by the FAAAA .  Other Federal Circuits Courts have held that even if preemption applied, the “safety exception” in the FAAAA saved state law negligent hiring claims from federal preemption.  On May 14, 2026, the U.S. Supreme Court addressed the conflict in Montgomery v. Caribe Transport II, LLC, et al, No24-1238. In that case freight broker C.H. Robinson selected Caribe Transport to haul an interstate load. The commercial truck driver employed by Caribe Transport allegedly caused an accident and the plaintiff, Montgomery, was seriously injured. Montgomery brought an action against the driver, Caribe Transport and C.H. Robinson. The allegation against C.H. Robinson was that it negligently retained Caribe Transport when it knew, or should have known, that it was an unsafe company. The Seventh Circuit Court of Appeals held that Montgomery’s claims against C.H. Robinson were preempted by the FAAAA. The plaintiff appealed to the U.S. Supreme Court.  The U.S. Supreme Court’s decision focused primarily on the safety exception in the FAAAA.  That provision provides that the FAAAA preemption “…shall not restrict the safety regulatory authority of a State with respect to motor vehicles.” C.H. Robinson argued, as freight brokers historically have, that their function was not “with respect to motor vehicles” because they do not own trucks or employ drivers. They are merely intermediaries, connecting entities who need freight moved with entities who can do that job. Therefore, C.H. Robinson argued that preemption applied, not the safety exception. The U.S. Supreme Court did not accept that argument. The Court focused on the meaning of the phrase “with respect to” in the safety exception. The Court held that it means “referring to”, “concerning” or “regarding”. Therefore, writing for a unanimous Court, Justice Barrett concluded that “[r]equiring C.H. Robinson to exercise ordinary care in selecting a carrier therefore “concerns” motor vehicles—most obviously, the trucks that will transport the goods. So, Montgomery’s negligent-hiring claim falls within the FAAAA’s safety exception, which saves it from preemption.” Justice Kavanaugh, in his concurring opinion, noted the effect this ruling may have on freight brokers and their insurers throughout the country: Importantly, the Court's decision today should not be read to mean that brokers will routinely be subject to state tort liability in the wake of truck accidents. As even plaintiff's counsel stressed, brokers should be able to successfully defend against state tort suits if the brokers have acted reasonably and arranged transportation with reputable trucking companies. Tr. of Oral Arg. 27-29. In plaintiff's counsel's words, the brokers "just have to hire carriers that actually have a reasonable policy," and "the broker is not going to have a problem if it's asking the hard questions of the carrier." Id., at 42, 45. In addition, the proximate-cause requirement in typical state tort law should help protect brokers from excessive liability. Id., at 25. That said, the brokers rightly caution against naivete. In the real world, as the brokers forcefully respond, state tort law can be unpredictable, and the costs to brokers of litigation and insurance may be significant even when brokers prevail in lawsuits. Moreover, the costs of litigation and insurance, as well as the costs of brokers' conducting more substantial inquiries into trucking companies, will cascade through the economy and be paid in part by American consumers in the form of higher prices. The concerns expressed by the brokers are legitimate and weighty. The key point here is that freight brokers can no longer claim they are protected from negligent retention claims by the FAAAA (in cases involving interstate transportation). The challenge will be to determine what is considered ”reasonable efforts” used by brokers when retaining transportation companies. 

Result

No-Cause Jury Verdict Secured in Wrongful Death Trial

We successfully obtained a no-cause jury verdict in a 13-day wrongful death trial. The decedent, a 59-year-old man, was admitted to the emergency room on February 15, 2019, with complaints of abdominal pain, decreased appetite, and constipation, despite the use of laxatives. The patient did not complain of any nausea, vomiting, or diarrhea. He had a significant medical history including diabetes, hypertension, prior coronary artery stenting, morbid obesity (with past gastric bypass surgery), longstanding ventral hernia, and back pain. A CT scan revealed multiple hernias and a potential closed-loop bowel obstruction, leading to a surgery consultation. Our client, an emergency general surgeon, interpreted that the patient did not have a closed loop or any significant obstruction and recommended non-surgical management. The patient was approved to have clear liquids, and had a vomiting incident shortly after, but our client was not notified. The patient was returned to NPO status, and after improving overnight, he was returned to “clears” and additional medical and renal consults were ordered. Our client did not receive any communications from the residents/nurses of any changes in the patient’s condition. On February 18, 2019, two rapid responses were called due to increased heart rate and vomiting. It is believed that the vomiting resulted in aspiration, causing sepsis, ultimately leading to the patient’s death. During the trial, the plaintiff’s sole medical expert highlighted imaging on the wrong hernia, which called into question all of his opinions in the case. We made key objections related to the expert testimony, limiting what the allegations were, and preventing new allegations from being made. After approximately two and a half hours of deliberating, the jury returned a no-cause verdict. 

Thought Leadership

PA Middle District Dismisses Claims Against School District and its Superintendent, Principal, Special Education Director, and Classroom Teacher

A five-year-old special education student was enrolled in the Wyoming Valley West School District and attended the State Street Elementary School during the 2024-2025 school year. The student refused to clean up classroom toys at dismissal. When his teacher allegedly grabbed him by the wrist to walk him back to his seat, the student dropped to the floor and began crying. The teacher then allegedly grabbed the student by the ankle and dragged him across the floor. Following an investigation, criminal charges were not advanced by the county DA, and the school permitted the teacher to return to the classroom. The student’s parents sued, lodging thirteen legal counts under both state and federal law, which sought monetary damages from the teacher, the school district, the superintendent, the principal, and the director of special education. The plaintiff’s 42 USC 1983 claims were dismissed as to the school district for failure to allege a policy or custom violation, and the failure to alleged deliberate indifference in the failure-to-train context. As to the superintendent, building principal, and special education director, the Section 1983 claims were also dismissed for failure to allege personal involvement on the part of the individuals. Regarding an equal protection claim asserted against all defendants, the motion to dismiss was also granted for a failure to advance a plausible equal protection claim, holding that “plaintiffs' single-act allegations do not include a factual basis to even infer that the act was motivated by discriminatory animus rather than some other non-discriminatory impulse.” The court further dismissed the plaintiff’s negligence-based claims including negligence against the teacher and district administrators, NIED, and vicarious liability under the Political Subdivision Tort Claims Act (PSTCA). The federal claims under the IDEA, Section 504, and the ADA were also dismissed in various respects. The IDEA claim was dismissed against all defendants with prejudice for failure to exhaust administrative remedies. The Section 504 claims against the individual defendants were also dismissed with prejudice, as districts, not individuals, are the recipients of federal funds under Section 504. However, the Section 504 and ADA claims were dismissed without prejudice as to defendant Wyoming Valley West, and the plaintiff was permitted leave to amend.