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What's Hot in Workers' Comp

The Appellate Division Affirms Summary Judgment for the Defendants, Partly Due to Special Employer Relationship.

Rodriguez v. Hartz Metro Fee II, LLC & N.Y. Mut. Trading, Inc., No. A-3083-19 (App. Div. May 27, 2022)

June 1, 2022

by Kiara K. Hartwell

The Appellate Division affirmed the dismissal of the plaintiff’s complaint via summary judgment filed by the defendants, Hartz Metro Fee II, LLC (warehouse owner) and N.Y. Mutual Trading, Inc. (tenant and “special employer”). In late August 2016, the plaintiff was working at New York Mutual’s warehouse, employed by a temporary staffing agency. He worked from noon to 8 p.m., loading and unloading container trucks. After punching in, he would report to his supervisor, a New York Mutual employee, who would provide him with his daily assignment. The staffing agency would use the timecards to bill New York Mutual and then pay the employees their wages. There was no dispute that New York Mutual could ask that an employee not be sent to their warehouse if they were unhappy with his/her performance.

While working, the plaintiff slipped and fell, noting the ramp where he fell was badly lit and rain had made it slippery. The plaintiff’s engineer expert opined that the lack of handrails and non-slip surface made its use unsafe. Although there were stairs with handrails next to the ramp, the plaintiff testified that most workers regularly used the ramp. He noted he had done so in the past, even in heavier rain, and consciously used the ramp the evening of the accident. The plaintiff received workers’ compensation benefits from the agency as there was no dispute his injury was work-related.

After discovery, the defendants filed a motion for summary judgment. After arguments, the judge found they were entitled to summary judgment. Specifically for Hartz, the judge noted there was no “landlord liability” in the case of a commercial tenant’s employee’s injuries where the lease places responsibility of maintenance on the tenant, relying on Geringer v. Hartz Mountain Dev. Corp., 388 N.J. Super. 392 (App. Div. 2006). The judge indicated Hartz’s lease with New York Mutual clearly assigned responsibility for maintenance on New York Mutual.

The judge rejected the plaintiff’s argument that a commercial landlord that reserved authority to approve design and construction should be responsible for the movable ramp because neither defendant had any hand in the design or construction of said ramp. The plaintiff’s argument that there was an issue of fact as to whether the loading dock/ramp was in a common area was also rejected as the lease specifically omitted this area from the definition of common area.

As for New York Mutual, the judge found the plaintiff was New York Mutual’s special employee under the five-pronged test established in Kelly v. Geriatric & Med. Servs., Inc., 287 N.J. Super. 567 (App. Div. 1996). This test analyzed whether: (1) there was a contract of hire; (2) the work done was essentially that of the special employer; (3) the special employer had the right to control the details of the work; (4) the special employer paid the wages; and (5) the special employer had the right to hire, discharge or recall the employee. In applying this test, the judge found the undisputed facts established an implied employment relationship, thus barring the negligence claim under the Workers’ Compensation Act.

The plaintiff appealed, arguing the lease was “not a true triple-net lease”; that Hartz violated the lease by negligently permitting New York Mutual to install a defective ramp and failed to take reasonable steps to remove the hazard; that New York Mutual was not his special employer and, even if it was, New York Mutual placed him in a situation that was substantially certain to cause him injuries; and, finally, that the judge erred in failing to consider that a wet surface was a de facto dangerous condition that was foreseeable and unreasonable.

The Appellate Division noted, none of these required extended discussion. It was noted the motion record established beyond any doubt that the ramp was neither designed nor constructed by either defendant and the lease language relieved Hartz of any responsibility. The Appellate Division also noted it was undisputed the plaintiff was a special employee. Finally, the Appellate Division mentioned the intentional wrong exception was not argued in trial court and indicated the fact that the plaintiff was “forced” to walk was not flagrant enough to constitute an intentional wrong, especially a ramp that he used regularly.
 

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Firm Highlights

Thought Leadership

Legal Update for Special Education Law: Recent Positive Outcomes From the Group

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Result

No-Cause Jury Verdict Secured in Wrongful Death Trial

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Thought Leadership

Featured Conversations... Key Takeaways from A.M. Best’s Webinar on the Misuse Defense in Product Liability Claims, Featuring Michael Salvati

Michael Salvati, shareholder in our Philadelphia office, was a panelist for the April A.M. Best webinar, “The Misuse Defense: Strategic Approaches to Defending Product Liability Claims for Insurers.” During the program, Michael and his fellow panelists offered practical, jurisdiction‑specific guidance on how misuse and failure‑to‑warn theories intersect in modern product liability litigation. Michael emphasized the unique challenges these claims present—particularly in states like Pennsylvania, where evidentiary rules diverge sharply from those applied in many other jurisdictions. Failure to Warn as the “Flip Side” of Misuse Salvati explained that failure‑to‑warn allegations often arise as a direct counter to a misuse defense. As he noted, “If our misuse defense is that the plaintiff didn't use a product properly or safely, then the failure to warn claim is that we didn't tell them how to use it properly.” He emphasized that these claims can stem from either the absence of warnings or criticisms of existing warnings, such as insufficient specificity or lack of clarity about risks. Pennsylvania’s Unique Evidentiary Landscape One of Salvati’s most notable points was the stark difference in how Pennsylvania treats evidence of compliance with industry standards. He highlighted that Pennsylvania is “one of the only states…where that evidence is not admissible” in strict liability cases. Manufacturers cannot rely on compliance with ANSI, UL, ISO, or even federal safety standards to defend the product against a strict liability claim—because the focus is solely on the product itself, not the manufacturer’s conduct. Salvati acknowledged the challenge this creates for defense counsel and clients who expect such compliance to carry weight. Understanding the Three Defect Theories Salvati also walked through the three primary defect theories recognized in many jurisdictions: - Design defect – a flaw in the product’s intended design - Manufacturing defect – a deviation affecting a specific unit - Failure to warn – inadequate instructions or warnings He noted that warnings claims are increasingly significant and sometimes stand alone when design or manufacturing theories are weak. As he put it, plaintiffs often default to warnings claims because “the default position seems to be, ‘If I got hurt, there must be something wrong.’” Warranties and State‑by‑State Variations Salvati addressed how breach‑of‑warranty claims fit into the broader framework, explaining that implied warranties—such as merchantability—often overlap with strict liability in Pennsylvania. He emphasized the importance of understanding local nuances, as warranty law and admissibility rules vary widely across states. Looking Ahead: The Growing Importance of Warnings In his closing remarks, Salvati stressed that warnings should never be treated as an afterthought in product liability defense. He observed that warnings‑only claims are becoming more common and urged manufacturers and insurers to continually evaluate the clarity and completeness of their instructions and warnings. His takeaway: “We should always be talking about what are the instructions that come with our products…to bolster a misuse defense.” Listen to the complete webinar here: https://www3.ambest.com/conferences/events/eventregister.aspx?event_id=WEB1074.