Volunteer at Work-Related Event Compensable under the Workers’ Compensation Act

Recently, in Kim Goulding v. NJ Friendship House, Inc., 245 N.J. 157 (2021), the Supreme Court of New Jersey considered whether an employee injured while volunteering at a “social or recreational event” can receive workers’ compensation benefits.

In September of 2017, Kim Goulding, an employee of North Jersey Friendship House, Inc. (“Friendship House”), volunteered for a “Family Fun Day.” Goulding assisted by setting up breakfast and preparing lunch for the attendees. As she prepared lunch, she stepped into a pothole and injured her ankle. Goulding filed a workers’ compensation claim which was denied by Friendship House. Friendship House stated Goulding was not entitled to relief because she was not working at the time. The Appellate Court sustained the decision, and the Supreme Court of New Jersey took the matter under review.

Generally, under the Workers’ Compensation Act, an employee injured during a social or recreational activity cannot receive workers’ compensation benefits for injuries sustained during such activity. This general rule, however, has expressly permitted an exception under N.J.S.A. 34:15-7 such that, “when such recreational or social activities [1] are regular incident of employment and [2] produce a benefit to the employer beyond improvement in employee health and morale” the injury is compensable. Ultimately, the Supreme Court reversed the lower court’s decision and held Goulding was entitled to workers’ compensation benefits.  The Supreme Court first addressed whether application of the exception was appropriate within the meaning of the statute. Specifically, it analyzed whether Goulding’s activities at the event were “social or recreational.” The Court found the lower courts erred by looking at the event as a whole and that “[i]f the employee is helping to facilitate the activity in the manner that occurred here, the event cannot be deemed a social or recreational activity as to that employee, and any injuries sustained by the employee while acting in that capacity should be compensated.” New Jersey has long held that when an employee is mandated to perform tasks outside of the workplace and then injured, the injury is compensable. However, “determination of whether a noncompulsory activity is a recreational or social activity within the meaning of the statute thus remains a fact intensive and case-specific inquiry.” In this case, despite the fact that Goulding volunteered, her activities at the event were not recreational or social and to disqualify her compensability because volunteered “ignores that the Act is supposed to be construed liberally in favor of compensation, and it fails to consider the employee's role in the activity.” Alternatively, even if such activity was “social or recreational,” the Court found that Goulding’s role at the event satisfied both prongs under N.J.S.A. 34:15-7. As to the first prong, the Court held that she would not have attended the event and would not have been injured but for the Friendship Houses request for volunteers. Friendship House maintained complete control over the event and was actively involved, therefore, the volunteer activity was a regular incident of employment. The Court also found Goulding satisfied the second prong as there was to be no evidence Goulding benefited as to “health and morale.” In fact, the Court found Friendship House was the beneficiary, “Friendship House received the ‘intangible benefits’ of promoting itself and fostering goodwill in the community.”

From a defense perspective, as an employee’s sole remedy for injuries sustained during the course of their employment is workers’ compensation, the Act is liberally construed, and employers may be responsible for injuries sustained when an employee volunteers at an event outside of their normal course.        

On Appeal, Connecticut Supreme Court Finds Sufficient Plaintiff's Objection to Jury Instruction, Trumping General Verdict Rule

The plaintiff, Ussbasy Garcia, sought to recover damages for personal injuries sustained when she slipped and fell on a staircase outside of her apartment building. Garcia v. Cohen, 335 Conn. 3, 225 A.3d 653, 2020 Conn. LEXIS 69.  Plaintiff claimed that the defendants were negligent in failing to keep the steps of the staircase free of dirt and sand and by allowing the surface to become pitted, worn and uneven.  Defendants raised the Special Defense of contributory negligence, stating that it had delegated tasks, such as snow removal, to a third party.  At trial, the Court declined to instruct the jury on the nondelegable duty to maintain doctrine or to submit plaintiff’s proposed interrogatories referring to same.  A verdict was returned for the defendants and the plaintiff appealed the Court’s decision as to jury instruction.

The case was appealed and eventually reached the Connecticut Supreme Court.  The Supreme Court disagreed with the lower courts that the “General Verdict Rule” barred review of the issue and that another independent error needed to be established to overturn the jury’s verdict. 

Under the general verdict rule, if a jury renders a general verdict for one party, and [the party raising a claim of error did not request] interrogatories, an appellate court will presume that the jury found every issue in favor of the prevailing party….Thus, in a case in which the general verdict rule operates, if any ground for the verdict is proper, the verdict must stand; only if every ground is improper does the verdict fall….Id. at 10-11.

According to the Court, the claims of negligence and contributory negligence are so intertwined with the plaintiff’s nondelegable duty charge claim on appeal that the Rule does not bar the review of this issue.  The Court found sufficient that plaintiff’s submission of interrogatories and her objection upon the court’s refusal to submit them to the jury as a defense to the application of the general verdict rule, not requiring an independent claim of error. Id at 6.

Additionally, the Court found that the plaintiff renewed her objection to the court’s denial of her request to submit her proposed interrogatories to the jury after the court had charged the jury on the applicable law.  The Court cited evidence that plaintiff filed her interrogatories; addressed the court’s decision not to submit them to the jury on the record; and raised her objection again after the court had charged the jury on the applicable law. See Id. at 28.

Analyzing this decision, the Court has reinforced its principal that formal objections to the court’s procedure as to charges to the jury are not necessary.  As long as the record is clear as to the party’s position on appeal, the objection is preserved for review by the subsequent appellate court, making the general verdict rule inapplicable in those instances.  Therefore, it emphasizes the importance of a clear record at trial, even if a party does not necessarily utter the words “I object” during the proceedings.       

Amendment 10 to Administrative Order AOSC20-23

The Florida Supreme Court recently passed Amendment 10 to Administrative Order AOSC20-23 regarding Comprehensive Covid-19 Emergency Measures for Florida Trial Courts.  The totality of this Order regards the way the Covid-19 pandemic has been handled by the judicial court dating back to March 2020.  Amendment 10 creates a new Section III.G.(1) which is pertinent to all attorneys practicing in Florida.  The new amendment is titled “Case Management and Resolution.”  The purpose of this amendment is to maximize resolution of cases, due in part to the continued backlog of cases during the Covid-19 pandemic.

The Chief Judges are instructed to issue an administrative order applicable to each county within the Judicial Circuit, which will take place on April 30, 2021.  The administrative order passed in each judicial circuit shall require the presiding judge for each civil case, as defined by the Florida Rules of Civil Procedure, to actively manage civil cases as specified.

First, Amendment 10 requires a review of each civil case to determine whether the case is complex (provided by Fla. R. Civ. P. 1.201), streamlined (based on criteria specified in the administrative order), or general (all other civil cases).   TThe presiding judge is required to issue a case management order for each streamlined and general civil case that, at a minimum, specifies deadlines commonly associated with Case Management Orders.  Of note the Case Management Order is required to specify the projected date of trial and indicate that the deadlines established will be strictly enforced by the court. 

Second, the issuance of Case Management Orders applies to all civil cases.  Of note, any cases filed after April 30, 2021, a Case Management Order shall be issued within 30 days of service of the Complaint on the last of all named defendants.  Cases filed before April 30, 2021 the Case Management Order shall be issued within 30 days of service of the Complaint on the last of all named defendants or by May 28, 2021, whichever date is later. 

Thirdly, the maximum period of time allowed for case management deadlines will be differentiated on whether the case is defined as streamlined or general.  The most important thing to note is that all judges are directed to strictly comply with the Florida Rules and court ordered deadlines determined in the Case Management Order to conclude litigation as soon as it is reasonably and justly possible to do so.  The Amendment recommends that continuances only be allowed for good cause shown.

Following a hearing with the Broward County Chief Judge, the Chief Judge believes the impact of Amendment 10 will be substantial.  He stated that every civil case will be reviewed, and old cases are going to be set for trial in the fall.  He also noted that lawyers should not expect continuances to be granted after the April 30, 2021 deadline. 

This Order will have a huge impact on litigation in Florida.  Cases, especially older cases, will get set for trial whether they are ready or not.  Judges will have a firm expectation that cases are prepared and efficiently moved toward resolution.  This expectation can put added pressure on both sides to reach a reasonable settlement.  It is anticipated that, county by county, Administrative Orders will put added pressure on plaintiff’s firms that intend to take their time preparing a case and firms that continue to push unreasonable demand numbers.       

New Jersey Defines Duty Owed by Public Transit Systems to Their Passengers

Recently, the New Jersey Supreme Court clarified the duty owed to passengers travelling on the State’s public buses. Maison v. N.J. Transit Corp., 245 A.3d 536 (N.J. 2021). This case involved a twenty-year old female college student who boarded a bus operated by New Jersey Transit. Behind her on the bus were four to five male teenage passengers. Id. at 536. Not long after the bus was underway, the teenagers began verbally harassing the student, eventually throwing objects at her with one even brandishing a knife. Id. The student attempted to change seats, but the teens persisted in their harassment. Id. Before leaving the bus, one of the teens threw a bottle, hitting the student in the face and causing a severe injury to her forehead, which was described as permanent. Id.

One of the main issues analyzed by the Court was the duty of care owed by New Jersey Transit to its passengers. At common law, common carriers have traditionally been held to a higher standard of care than other tortfeasors in the realm of negligence. Maison, 245 A.3d at 536 (citing Schott v. Weiss, 105 A. 192, 193 (N.J. 1918)). The rationale for this was largely that such a carrier assumes the protection of its passengers who are, by virtue of their being passengers, largely restricted in how they may protect themselves. Id. (citing Derwort v. Loomer, 21 Conn. 245, 253 (1851). However, in New Jersey it was not entirely clear whether public transit systems would be subject to the heightened standard generally applicable to other such carriers. Id. (citing Lieberman v. Port Auth. of N.Y. & N.J., 622 A.2d 1295, 1300 (N.J. 1993)).

In Maison, unlike in its previous decisions such as Lieberman, the Court unambiguously addressed this issue, finding that, “the heightened common-carrier standard applies to public carriers like NJ Transit.” Id. The Court’s Opinion found support in caselaw from both the California and Texas Supreme Courts, which similarly hold public transit systems to a heightened standard. See Lopez v. Southern California Rapid Transit District, 221 Cal. Rptr. 840 (Cal. 1985); VIA Metro. Transit v. Meck, S.W.3d, 2020 Tex. LEXIS 613 (Tex. 2020).

Insofar as practical application of this standard and whether NJ Transit breached it, the Court found that the bus driver was under no obligation to intervene physically and end the behavior of the teenagers. In fact, the Court stated that per its understanding of the applicable regulations, a bus driver is not authorized to take such action. Maison, 245 A.3d at 536 (citing N.J.A.C. 16:83-1.6). However, the Court stated that a bus driver must at a minimum exercise “utmost caution” to satisfy the heightened standard, which on the facts presented would have included addressing the harassers directly, stopping the bus, or calling the police. Unfortunately for the student in Maison, the driver never took any of these actions until after she was struck with the bottle, and the teens who assaulted her were never apprehended by the police.

Hopefully, the Maison decision will deter would-be assailants from harassing passengers and bolster the safety of our public transportation.

If You Can Disclaim Coverage - Do Not Wait To Do So

The First Department recently reversed a New York County Supreme Court order, which had denied plaintiff's motion for summary judgment for a declaration of coverage and granted defendant's motion which sought a declaration that it is not obligated to defend or indemnify plaintiff. See ADD Plumbing, Inc. v Burlington Ins. Co., ___AD3d___, 2021 NY Slip Op 01498, *1 (2021). The court declared that the “defendant ha[d] a duty to defend and indemnify plaintiff in the underlying action.” See id.

The court explained that "a timely disclaimer pursuant to Insurance Law § 3420(d) is required when a claim falls within the coverage terms but is denied based on a policy exclusion" See id. (citing GHP Partners, LLC v American Home Assur. Co., 87 AD3d 843, 843 [1st Dept 2011]). The purpose of Insurance Law § 3420, as described by the First Department, “is to protect the insured, injured party, or any other claimant with an interest in the outcome, from prejudice based on a delayed denial of coverage.” See id.  (citing Admiral Ins. Co. v State Farm Fire & Cas. Co., 86 AD3d 486, 488 [1st Dept 2011]).

According to the First Department, the clock begins to run for an insurer to make a disclaimer once “the insurer first learns of the grounds for disclaimer of liability or denial of coverage." See id. (citing Country-Wide Ins. Co. v Preferred Trucking Servs. Corp., 22 NY3d 571, 575-576 [2014]). Whether the insurer disclaimed coverage as soon as reasonably possible after it first learns of the ground for disclaimer is a case-specific legal question. See id. The First Department acknowledged that “courts have found relatively short periods to be unreasonable as a matter of law" when there is no excuse or mitigating factor for the delay.  See id. (quoting Travelers Ins. Co. v Volmar Constr. Co., 300 AD2d 40, 43 [1st Dept 2002]).

In ADD, the defendant's disclaimer dated December 24, 2014 was “untimely as a matter of law” and their position that they only received plaintiff's claim on December 16, 2014” was deemed unpersuasive because the defendant had been on notice about the accident for several months before it disclaimed coverage and commenced an investigation. The First Department explained that the defendant was “sufficiently aware of the facts that would support a disclaimer but waited almost two months before disclaiming coverage.” (GHPPartners, LLC, 87 AD3d at 844).

Therefore, it is imperative that once an insurance carrier becomes aware of a claim, that it conducts an investigation and determines whether an exception in the insurance policy will entitle it to a disclaimer. Once the insurance carrier recognizes that it can make a disclaimer, it should do so immediately in order to avoid being deemed untimely, in light of the First Department deeming a two month delay as “unreasonable.”

Georgia Employers No Longer Automatically Entitled To Summary Judgement On Direct Claims Where Liability Is Admitted

Under Georgia’s former Respondeat Superior Rule, an employer was generally entitled to summary judgment on direct liability claims such as negligent hiring, retention, supervision, or entrustment where it had admitted its vicarious liability for the employee’s negligence. 116 Ga. App. 848, 853-686, reversed on other grounds, 224 Ga. 263 (1968).  Generally, when an employee causes an injury to another, the test to determine if the employer is liable is whether the employee was at the time of the injury acting within the scope of his employment and on the business of the employer. Accordingly, under Georgia’s long-standing Respondeat Superior Rule, Georgia courts held that where an employer admitted it was vicariously liable for its employee’s negligence, direct claims for negligent entrustment, hiring, training, and/or retention would not entitle a plaintiff to a greater recovery but would merely serve to prejudice the employer and potentially lead to double dipping.

In 2005, Georgia’s massive tort reform movement led to the enactment of the apportionment statute, codified at O.C.G.A. § 51-12-33.  Pursuant to the apportionment statute, a Georgia jury is required to apportion fault for an injury amongst all responsible parties and non-party tortfeasors pursuant to each’s percentage of fault. In November 2020, in Quynn v. Hulsey, et al. the Georgia Supreme Court considered whether the long-standing Respondent Superior Rule had been effectively abrogated by the apportionment statue.

Quynn involved a claim for wrongful death against Hulsey and his employer, TriEst, for the death of Brandon Lanier.  Hulsey was operating his employer’s vehicle when he struck and killed Lanier while Lanier crossed the road.  The trial court granted partial summary judgment to TriEst on the plaintiff’s direct liability claims for negligent entrustment, hiring, training, and supervision based upon the Respondeat Superior Rule.  TriEst did not dispute that it was vicariously liable for Hulsey’s negligence.  After trial on the negligence claims, the jury found Hulsey/TriEst to be 50% at fault and Lanier to be 50% at fault, with the result that the plaintiff was precluded from recovering any damages pursuant to O.C.G.A. § 51-12-33(g).

The Quynns appealed, claiming in part that the trial court’s grant of summary judgment to TriEst on the direct liability claims, pursuant to the Respondeat Superior Rule, was inconsistent with the apportionment statute because the jury was not permitted to apportion any fault to TriEst as an independent tortfeasor.  The Georgia Supreme Court agreed with the appellant.

The Georgia Supreme Court was clear that any fault apportioned to the employer would have to be for its own independent negligence and not for vicarious liability. With the elimination of the decisional Respondeat Superior Rule, employers that litigate in Georgia will no longer be able to automatically obtain summary judgment on direct liability claims where they have admitted vicarious liability for an employee’s negligence.  We anticipate seeing an increase in discovery regarding an employer’s hiring, supervision, and training practices, even in straight-forward admitted liability matters.