No Duty to Inspect Delivery Truck for Teenagers Sitting on Back of Truck, Taking a Ride, and Getting Injured by Falling Off

Badalamenti v. Simkiss, 422 N.J. Super. 86 (App. Div. 2011).  Advocates of “tort reform” like to complain that New Jersey courts will allow anyone to proceed, or even to recover, on any type of tort claim.  This decision, written by Judge St. John (his first published opinion for the Appellate Division) shows the falsity of such assertions.

Defendant Simpkiss, an employee of another defendant, COPD Services, Inc. (“COPD”), had parked his delivery truck and left it idling while he delivered stationary liquid oxygen to a customer’s home.  Several teenagers decided to sit on the back of the truck while Simpkiss was carrying equipment in and out of the home.  “The teenagers engaged in a conversation about how fun and exciting it would be going for a ride on the back of the truck.”

Simpkiss returned to his truck and drove away.  One of the teenagers had the sense to jump off the truck immediately, but two others went for a ride.  When the truck hit a bump, one of them, plaintiff Anthony Badalamenti, fell off and hit his head, sustaining serious injuries.  Anthony and his parents sued Simpkiss, COPD and another defendant, the owner of the truck, on negligence and products liability theories.

During the course of the case, after plaintiffs’ first expert offered no support for a products liability claim, plaintiffs voluntarily dismissed that claim, as well as all claims against the vehicle owner.  Simpkiss and COPD moved for summary judgment, which the Law Division granted on the ground that defendants had no duty to see whether someone might have been sitting, uninvited, on the back of the truck.  The Appellate Division affirmed.

After summarizing in detail the standard of review for a grant of summary judgment, Judge St. John offered three bases for affirming the ruling below.  At least two of those had been relied upon by the Law Division.

First, the case was controlled by Meade v. Purity Bakers, 115 N.J.L. 471 (E. & A. 1935), a case on “almost identical” facts that “remain[s] sound.”   Second, analyzing the factors that inform whether a duty exists on particular facts, the Appellate Division agreed with the Law Division that no duty existed.  It was not foreseeable that teenagers would sit on the truck, especially since it was idling, and go for a ride, as trespassers.  Finally, cases from numerous other jurisdictions, which Judge St. John surveyed at length, supported defendants.

Plaintiffs argued that “the transportation of oxygen, and the duties imposed upon the driver by the commercial drivers license (CDL) manual create[d] a legal duty” to avoid harm to Anthony.  The panel found the argument based on the CDL manual “tenuous” at best.  But even if Simpkiss had the duty to inspect the vehicle at every stop, that duty would not be applicable here since Anthony was not a person for whom that duty was created, and there was no cause and effect relationship from any violation of a duty to inspect, if such a duty existed at all.

Finally, the panel affirmed the Law Division’s denial of plaintiffs’ post-summary judgment attempt to revive their voluntarily dismissed products liability claim, based on a report of a second expert that they had obtained months earlier.  The Appellate Division found that plaintiffs had not proceeded with diligence, and that reviving the products claim after plaintiffs had voluntarily dismissed it, and after defendants had won summary judgment on the rest of the case, would be prejudicial to defendants.