In Fernandes v. DAR, the New Jersey Supreme Court was recently asked to consider whether the issue of an employee’s comparative negligence in a workplace construction injury case should be submitted to the jury. 

It was our position that the comparative negligence defense was not applicable to an employee injured on a construction worksite where the injured worker had no “meaningful choice” but to work under hazardous conditions. New Jersey law does not allow the comparative negligence in workplace product liability claims pursuant to Suter v. San Angelo Foundry Co. On behalf of NJAJ, we argued that a construction worker, like those workers injured due to defective products, had no meaningful choice and therefore could not, as a matter of law, be held comparatively negligent.

Unfortunately, the New Jersey Supreme Court rejected this bright line test. However, the New Jersey Supreme Court did reaffirm that a violation of OSHA by a general contractor and its subcontractors is evidence of negligence. The Supreme Court further observed as follows:

The relevant inquiry in gauging the level of an employee’s responsibility for his or her injuries is whether he or she failed to use the care of a reasonably prudent person under all of the circumstances, either in continuing to work in the face of a known risk or in the manner in which he or she proceeded in the face of that known risk. The issue of a plaintiff’s negligence may only be submitted to the jury when the evidence adduced at trial suggests that a worker acted unreasonably in the face of a known risk and that conduct somehow contributed to his or her injuries. The fact that plaintiff was a member of the workforce, with all the compulsions attendant to that status, is a factor which is subsumed in the jury’s analysis of whether he acted prudently. The jury should also consider the effect of the plaintiff’s expertise and training on his or her determination of whether to proceed with the assigned task and the manner in which to do so. Notwithstanding the rule permitting an employee’s negligence to be considered in a negligence action against a third party arising from a workplace accident, the trial judge here properly rejected defendant’s request for a comparative negligence charge because there is no evidence that plaintiff failed to act with the care of a reasonably prudent person in choosing to complete his assigned task on the day of the accident. (Source)

Just as important, this opinion may be read to implicitly overrule the New Jersey Appellate decision in Tarabokia v. Structure Tone, 429 N.J. Super. 103 (App. Div. 2012). There, the Appellate court suggested that a general contractor did not have a non-delegable duty to protect employees of its subcontractors.