In Badalamenti v. Simpkiss, ___ N.J. Super. ___ (App. Div. 2011), the Appellate Division concisely identified the main issue it had to decide: “whether the driver of a delivery truck owed a duty of care to an unseen trespasser, who fell off the back of the truck and was injured.” The court reached an equally concise holding, as it ruled that “the driver had no duty to inspect the rear of the vehicle for unauthorized riders.”
Defendant Victor Simpkiss, III (“Simpkiss”) was employed by defendant COPD Services, Inc. (“COPD”). On March 10, 2006, Simpkiss parked a COPD delivery truck on a street in Cinnaminson because he was delivering stationary liquid oxygen to a customer’s home. As he was carrying equipment into and out of the customer’s home, plaintiff Anthony Badalamenti (“Anthony”), then age fifteen, and four of his teenage friends were standing by the truck. Anthony and two friends decided to sit on the rear platform of the truck. While sitting on the back of the truck the friends talked about how fun it would be to go for a ride on the back of the truck.
Simpkiss, unaware of the teenagers sitting on his truck, started the engine and went inside the customer’s home. He then returned to the truck and, without looking at the back of it or walking around the back of it, got into the driver’s seat and drove off. As the truck moved forward, one of Anthony’s friends jumped off, while Anthony and his other friend stayed on the back of the truck. The truck hit a bump and Anthony fell off and struck his head, and he sustained significant injuries. His other friend jumped off the truck a few block later when it was stopped at an intersection.
Anthony and his mother filed suit against Simpkiss, COPD, and the owner of the truck, asserting negligence and product liability claims. The plaintiffs’ expert failed to identify any product liability defects in his report and the plaintiffs voluntarily dismissed those claims. After that expert died, the plaintiffs hired a new expert who offered an opinion that arguably could support a product liability claims.
The trial court granted COPD and Simpkiss’s motion for summary judgment, finding that they did not owe a duty to the plaintiffs. The trial court also denied the plaintiffs’ motion for reconsideration and motion to vacate the voluntary dismissal of the product liability claims. The Appellate Division affirmed.
The Appellate Division began its analysis by focusing on the question of when a duty of care arises. After acknowledging that a duty is a fluid concept that courts must decide on a case-by-case basis, the Appellate Division then recited the five well-established factors that courts consider in deciding whether a duty exists: 1) the relationship of the parties; 2) the nature of the attendant risk; 3) the ability and opportunity to exercise control; 4) the public interest in the proposed solution; and 5) the foreseeability of harm. Foreseeability of harm is the most important factor in a court’s duty analysis.
The court then turned to a decades-old case, Meade v. Purity Bakers, 115 N.J.L. 471 (E. & A. 1935), that involved nearly identical facts. In that case, the court held that there was not a duty. The Appellate Division explained that, as in Meade, there was no evidence that Simpkiss knew about Anthony’s presence on the truck and that he was a trespasser. Although Anthony was a minor, the court pointed out that it was not objectively foreseeable that he and his friends would sit on the bumper of the truck. Relying upon Meade’s analysis and reasoning, the Appellate Division concluded “that Meade should be applied here to uphold the motion judge’s finding that no duty was owed by Simpkiss to Anthony.” The court then engaged in an extensive review of caselaw from other jurisdictions that had reached similar results.
Moreover, the Appellate Division rejected the plaintiffs’ arguments that the transportation of oxygen and the duties imposed on a driver by the commercial drivers license manual created a legal duty on the defendants to prevent the risk of harm to Anthony. In doing so, the Appellate Division stressed that the accident here was not the type of risk addressed in the manual and that Anthony was a trespasser. The court concluded that Simpkiss “owed Anthony no duty except to refrain from willfully and wantonly injuring him, and there is no evidence to support that assertion.” Lastly, the Appellate Division rejected the plaintiffs’ contention that the trial court should have allowed them to re-open their dismissed product liability claims.