Comparative Negligence Defense in Claim by Injured Worker Against Third Parties

Donna Russo, Esq. 

It is well settled law that there cannot be a comparative negligence defense in worker’s compensation cases.  In Rolando Fernandes v. DAR Development Corp. (A-37-13, decided July 28, 2015),  the N.J. Supreme Court decided the issue of whether third parties can assert the defense of comparative negligence in civil actions against third parties.

The injured worker had an accident on a construction site. In addition to a worker’s compensation claim against his employer, the injured worker filed a civil lawsuit against  third party contractors seeking compensatory damages.  The third party contractors argued that the injured worker was comparatively negligent.   The Comparative Negligence Act, N.J.S.A. 2A:15-5.2(a)(2) provides that an injured party is permitted to recover damages if his or her “negligence was not greater that the negligence of the person against whom recovery is sought or . . . the combined negligence of persons against whom recovery is sought.”

The Supreme Court held that third parties can argue the comparative negligence of the injured worker if there are facts that support the claim.  The Supreme Court addressed the issue of a person who must work to live and proceeds to do an assigned task after knowing of a hazard.

The Court held: “The demands of employment, and the reality of the power imbalance between employer and employee, may therefore be considered in determining whether an employee acted prudently in continuing to perform his or her assigned task in the face of a known risk.  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. Subsumed into that analysis, therefore, is whether the plaintiff unreasonably confronted a know risk and whether he had a ‘meaningful choice’ in the manner in which he completed his assigned task.”