The decedent in this electrocution death accident litigation case was a laborer that came in contact with a 34,000 volt transformer as he was salvaging scrap metal. The plaintiff suffered severe third-degree burns to his body and, ultimately, died from his injuries two-weeks later. It was established during the litigation that the client was electrocuted because the landowner negligently informed him that the electrical substation had been de-energized.
Under New Jersey law, there are two distinct statutory causes of action that arise from the tortious death of a decedent: a wrongful death action under N.J.S.A. §2A:31-1 9 (“Wrongful Death Act”) and a survival action under N.J.S.A. §2A:31-1 (“Survival Act”). A wrongful death action seeks to compensate for the pecuniary loss sustained by the survivors of those killed by the wrongful acts of another:
The evident policy of the statute is the recovery of damages for pecuniary injury sustained by the designated beneficiaries. The act is essentially remedial rather than penal. Damages are assessed to compensate for the injuries sustained by the person to whom they are payable. The design [of the wrongful death act] from the very beginning was the limitation of the measure of damages to the pecuniary injury sustained by the statutory beneficiaries as the result fo the death. The statutory policy was remedial and not punitive.
Turon v. J&L Construction, Co., 8 N.J. 543, 547 (1962). See also Goss v. American Cyanamid, Co., 278 N.J.Super. 227, 241, 650 A.2d 1001 (App. Div.1994) (“An award of damages in a wrongful death action is not intended to punish the tortfeasor, but only to replace that which the decedent likely would have provided.”).
To establish a wrongful death claim, it must be demonstrated that the death of the person was caused by “the wrongful act, neglect, or default” of another. See N.J.S.A.§2A31-1. The Wrongful Death Act contemplates recovery based upon traditional common law notions of negligence and even expands its reach to encompass more novel theories of recovery. See Skovgaard v. M/V Tungus, 252 F.2d 14, 17 (3rd Cir. 1957).
A survival action remains personal to the decedent and preserves to the decedent’s estate any personal cause of action that the decedent would have had if he or she had survived. Smith v. Whitaker, 160 N.J. 221, 233 (1990). “The survival action merely perpetuates the right of action which the deceased himself would have had, to redress his own injuries but for his death.” 2 F. Harper & James, §24.2 at 1287. In light of the personal nature of a survival action, damages are limited to pre-death injuries, including pain and suffering, funeral expenses, medical expenses, and any other compensatory damages. See Smith v. Whitaker, 160 N.J. 221 (1999), Ryan v. Public Service Ry. Co, 103 N.J.L. 145 (1926). Punitive damages are also recoverable in this context. See N.J.S.A. §2A:15-5. Like the wrongful death action, the predicate for recovery under a survival action is the “wrongful act, neglect, and default” of another. See N.J.S.A. §2A:31-1.
Although providing distinct remedies, the Wrongful Death and Survival Acts serve the unitary purpose of providing a full and complete remedy for the tortious death of the decedent: “The Survival Act was intended to be supplementary to the [Wrongful] Death Act and to afford complete and adequate redress to the estates of those who were injured in person or property by injuries causing death by allowing the decedent’s estate to recover any loss to the decedent that accrued between injury and death.” Smith, 160 N.J. at 234. By virtue of the twin statutory schemes, the wrongful acts and neglect of a defendant are adjudicated in one forum with damages flowing to the respective beneficiaries of the estate in accordance with the command of each independent statute.
As demonstrated hereinafter, Plaintiff was entitled to recover under both the Wrongful Death and Survival Acts by virtue of the landowner’s wrongful acts and neglect. The landowner was charged with a nondelegable duty to provide a safe workspace for plaintiff. To discharge that duty, the landowner had an affirmative obligation to seek out and detect dangerous conditions that were not readily apparent to workers on the property- such as the identification of active sources of electricity on the premises prior to the commencement of salvaging operations. By failing to do so, the landowner became exposed to liability for the resulting injuries and death of the decedent, which include monetary damages for his pain and suffering, medical and funeral expenses, and the loss of a source of financial support to his children. The landowner’s failure to obtain the necessary permits demonstrates that it acted wilful and wantonly, and thus was also exposed to punitive damages.
Furthermore, an owner of land, who invites workmen of an independent contractor to come upon his premises, is under a duty to exercise ordinary care to render reasonably safe the areas in which he might reasonably expect them to be working. Sanna v. National Sponge Company, 209 N.J. Super. 60, 66 (App. Div. 1986). “The landowner’s duty includes the obligation of making a reasonable inspection to discover defective and hazardous conditions.” Zentz v. Toop, 92 N.J. Super 105, 111 (App. Div. 1966) (emphasis added). The obligation upon the landowner of either making the condition of his premises reasonably safe or giving adequate warning imposes upon him the duty to furnish such safeguards as may reasonably be necessary. A landowner’s duty is nondelegable. “The landowner cannot escape its responsibility to provide a safe place to work by attempting to transfer it to another [as] the possibility that another person may also have been negligent does not relieve the landowner of his legal duty.” Sanna, 209 N.J. Super at 66.
A landowner’s duty, however, is not absolute:
When the independent contractor is hired to carry on an activity which by its very nature involves a peculiar risk of harm to the contractor’s employee, the landowner is generally not liable for injuries sustained by the contractor’s employee in the course of his assigned duties.
[T]he duty to provide a reasonably safe place to work is relative to the nature of the invited endeavor and does not entail the elimination of operational hazards which are obvious and visible to the invitee upon ordinary observation and which are part of or incidental to the very work the contractor was hired to perform. The landowner is under no duty to protect an employee of an independent contractor from the very hazard created by doing the contract work.
Wolzcak v. National Electric Products Corp., 66 N.J. Super. 64, 75 (App. Div. 1961).
New Jersey courts have narrowly circumscribed the scope of the operational hazards assumed by an employee of an independent contractor. Before immunizing a landowner from liability, a determination must be made that the risks to the employee were obvious and incidental to the scope of employment. Wolchak, supra. There must exist a close nexus between the job duties and the attendant injuries before a land owner will be afforded any protection. Stated differently, the risk must be closely tailored with the tasks of the job and rationally assumed by the worker. See Rigatti v. Reddy, 318 N.J. Super. 537 (App. Div. 1999) (falling though roof is the type of operational hazard assumed by roofers); Dawson v. Bunker Hill Plaza Associates, 289 N.J. Super. 309 (App. Div. 1996) (injuries resulting from weak roof trusses constitute the type of operational hazard assumed by carpenter hired to build a roof); Cassano v. Aschoff, 226 N.J. Super. 110 (App. Div. 1988) (injuries resulting from a fallen tree limb are operational hazards assumed by employee of a tree removal company); Ryan v. United States, 233 F.Supp. 2d 668, 682 (D.N.J. 2002) (injuries from falling debris are operational hazards assumed by laborer hired for demolition).
However, when an external factor – such as the negligence of the landowner or concealment of a known condition, contributes to the injury, the protections will not abrogate a claim by the worker against the landowner because those risks are not deemed incidental to employment. Indeed, in this context, the injury results not from a function of performance the job but, rather, from the conduct (or misconduct) of a third-party. See Sanna, 209 N.J. Super. 60 (App. Div. 1986) (fall resulting from substandard scaffolding and poorly maintained premises is not an operational risk assumed when installing insulation); Craggan v. IKEA USA, 332 N.J. Super. 53 (App. Div. 2000) (fall resulting from poorly maintained premises is not an operational risk assumed by a furniture mover); Moore v. Schering Plough, 328 N.J. Super. 300 (App. Div. 2000) (fall resulting from poorly maintained premises is not an operational hazard assumed by security guard); Reynolds v. Lancaster County Prison, 325 N.J. Super. 298 (App. Div. 1999) (injuries resulting from guard dog attack is not an operational risk assumed by an animal trainer when the true nature and disposition of the dog is concealed).
Against that backdrop, it become readily apparent in the litigation that the landowner had liability for its failure to provide a safe workspace for plaintiff who was not a trained electrician and used simple tools to break down the metal components of the electrical substation. As a laborer, the normal and incidental risks posed to him by virtue of his employment include back injuries from lifting heavy objects, cuts using hand tools and equipment, and bruises from falling objects. See Ryan, supra. Laborers are not trained electricians that regularly work with electricity and are not expected to come in contact with electricity as part of their normal job function. As such, death by electrocution cannot be considered “incidental” to the work of a laborer “obvious” so that it constitutes an operational hazard.
A Middlesex County Superior Court judge presided over the settlement of this matter, which resulted in the beneficiaries of the Estate receiving the full proceeds of a $1 million insurance policy, plus a confidential amount of cash from the negligent landowner.
For more information or to speak with an experienced New Jersey electrocution wrongful death lawyer, contact Keefe Law Firm.
