In a recent unpublished Appellate Division case decided on October 30, 2023, the Court was called upon to determine whether there exits a duty of inquiry when a piece of equipment, in this case, a forklift, is entrusted to another individual. In Medina v. Bartlett Dairy, Inc, the plaintiff, Johnny Medina, was injured when a coworker struck him with a forklift at his shoulder and ultimately ran over his foot. The setting of the case involved a construction project where Bartlett Dairy contracted with another company to upgrade one of its warehouses. That company ultimately contacted with the plaintiff’s employer to provide electrical service as well as a back up generator. The plaintiff was an electrician’s helper for the electrical contractor and the driver of the forklift was his foreman. The forklift itself was owned by Bartlett which had been entrusted to the foreman by a Bartlett employee. At no time prior to this entrustment was the foreman asked if he was OSHA certified or otherwise experienced in the operation of a forklift.
While at the project site, the plaintiff was sent to get lunch for the crew working that day. As the plaintiff walked away, his foreman had additional instructions for him and pursued in the forklift. Unfortunately, the foreman had veered to close the plaintiff striking his shoulder and causing the plaintiff to spin and have his left foot caught under a wheel. At the time of the incident, the foreman was not OSHA certified to operate a forklift, although he did have some informal on the job training about the controls and handling of forklifts and similar equipment. It was notable that OSHA regulates the use and operation of forklifts under its “powered industrial trucks” regulation which requires various training and safety implementation. Bartlett itself required all of its own employees operating forklifts to be OSHA certified and OSHA training is mandatory for all new hires before they are allowed to use any of the machines.
The plaintiff’s case was dismissed at the trial level with the Court finding that there was no common law duty for Bartlett to check the driving credentials of its contactors’ or subcontractors’ employees and that such a duty “would impose a very onerous burden”. The Court also found that Bartlett had no reason to foresee that the foreman would operate the forklift in anyway to cause injury. Finally, the Court found that Bartlett would have been required to have actual or constructive knowledge of the foreman’s inexperience in order to sustain a claim for negligent entrustment
In reversing the trial court’s dismissal and reinstating the plaintiff’s case, the Appellate Division explained: “the central question is not whether it was foreseeable that [the foreman] would misuse the forklift; rather, the question is whether it was generally foreseeable that providing a forklift to an inexperienced operator poses a risk of serious injury to others on the premises. Bartlett’s strict enforcement of the OSHA-required certification for its own employees demonstrates its undeniable recognition of that risk.”
In imposing a duty of “reasonable inquiry” the Court concluded that it would have been a minimal burden for Bartlett to ask if the foreman was a qualified forklift operator prior to its entrustment of the equipment. The Court noted that in New Jersey, the “owner of a chainsaw, a firearm, a boat or motor vehicle, as well as any other device capable of causing injury when misused, has an obligation to avoid entrusting such a device to a person who is unfamiliar with its use”. Citing McKeown v. Am. Golf Corp., 462 N.J. Super 39, 343-44 (App. Div. 2020). New Jersey imposes liability for entrustment of such equipment to an inexperienced user. In this case a reasonable inquiry would have revealed that the foreman was not OSHA certified to operate a forklift and would have revealed information about the foreman’s experience sufficient to have the case decided by a jury.
Legal Update by Richard Gaeckle, Esq., of Petro Cohen, P.C.
Loading...