Wade Clark Mulcahy LLP

<p style="text-align: justify;">The New Jersey Appellate Court recently reviewed a trial court decision granting summary judgment in favor of defendants in <em><a href="https://www.wcmlaw.com/wp-content/uploads/2019/05/Cortes-v.-Garrard.pdf">Cortes v. Garrard</a>.</em> Plaintiff Alexander Cortes and his friend, Seth Patterson, both sixteen-years old, trespassed onto a construction site controlled by defendants Garrard Construction Group, Inc. and Holz and Henry, Inc. The teens took turns operating a forklift inside of a building that was being constructed, after finding that the keys were left in the forklift ignition.</p>
<p style="text-align: justify;">The building where Alex’s accident occurred was located within a shopping center in Sicklerville, and Seth testified that there was no caution tape or plywood behind any of the door frames in the entrance-ways when they entered the building.   While, essentially, horsing around with the forklift, Alex's right leg to get caught between the forklift and a pillar resulting in serious injuries that required an above-the-knee amputation. Although the trial court granted defendants motions for summary judgment, holding that Alex failed to establish that the defendants knew, or had reason to know, that minors were likely to trespass onto the construction site, the appellate court reversed and remanded the decision following a review of the record.</p>
<p style="text-align: justify;">During discovery, defendant Garrard produced its safety manual. Under a sub-heading titles “Children and Construction,” the manual indicated that construction sites attract children, as children like to explore. Additionally, the manual went on to state that children should not be allowed on site during the day and that fences should be placed on site, equipment should be locked up, and “No Trespassing” signs should be placed in the area. Further, Garrard’s project manager testified that he knew that teenagers were not in school from June through early September and that he was aware the site was located in an active shopping center occupied by ongoing business. Most notably, Garrard’s Director of Construction stated that the project was valued between one and two million dollars, but Garrard’s safety budget was $300.</p>
<p style="text-align: justify;">Plaintiffs produced an expert that opined that defendants should have visited the site and conducted a Life/Safety Exposure Analysis (‘LSEA’) which is essential to the development of the project site security policy and plan. Further, he opined that had the keys not been left in the forklift ignition, Alex would not have suffered his catastrophic injury.   The appellate court ruled that the site was on an active shopping center open to the public, and the location posed a greater risk of increased traffic by teenagers, which created an issue of fact as to the defendants' liability.  As such, the Appellate Court reversed and remanded to the trial court for further proceedings.  Thanks to Steve Kim for his contribution to this post.  Please email <a href="mailto:BGibbons@wcmlaw.com">Brian Gibbons</a> with any questions.</p>
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