Opinion
DOCKET NO. A-4337-13T4
02-01-2016
ANNY ALBERTO, as Administrator Ad Prosequendum of the Estate of CARLOS DIAZ, a/k/a JUAN PABLO DIAZ, Plaintiff-Respondent, v. NORTH EAST LINEN SUPPLY COMPANY, its agents, servants, and employees; NEW ENGLAND LINEN SUPPLY COMPANY, its agents, servants, and employees, Defendants-Appellants. MANUEL DIAZ, as ADMINISTRATOR Ad Prosequendum for the Estate of VICTOR M. DIAZ, JR., ANDRES V. DIAZ, individually, OMAR DIAZ, individually, and VECKYS DIAZ, individually, Plaintiffs-Respondents, v. NEW ENGLAND LINEN SUPPLY CO., INC., NORTH EAST LINEN SUPPLY CORPORATION, and NORTH EAST LINEN SUPPLY CO., INC., Defendants-Appellants.
William J. Martin argued the cause for appellant North East Linen Supply, Inc. (Martin, Gunn & Martin, P.A., attorneys; Mr. Martin, on the briefs). John D. O'Dwyer argued the cause for respondent Estate of Carlos Diaz (Ginarte, O'Dwyer, Gonzalez, Gallardo & Winograd, LLP, attorneys; Mr. O'Dwyer, of counsel and on the brief; Ronald J. Morgan, on the brief). Jeffrey S. Mandel argued the cause for respondent Estate of Victor Diaz (Cutolo Mandel, LLC, attorneys; Mr. Mandel, of counsel and on the brief; Andrew Stein, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner, Hoffman and Whipple. On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket Nos. L-8705-09 and L-3321-10. William J. Martin argued the cause for appellant North East Linen Supply, Inc. (Martin, Gunn & Martin, P.A., attorneys; Mr. Martin, on the briefs). John D. O'Dwyer argued the cause for respondent Estate of Carlos Diaz (Ginarte, O'Dwyer, Gonzalez, Gallardo & Winograd, LLP, attorneys; Mr. O'Dwyer, of counsel and on the brief; Ronald J. Morgan, on the brief). Jeffrey S. Mandel argued the cause for respondent Estate of Victor Diaz (Cutolo Mandel, LLC, attorneys; Mr. Mandel, of counsel and on the brief; Andrew Stein, on the brief). PER CURIAM
In these wrongful-death actions, defendant-employer North East Linen Supply Company, Inc. (North East Linen or defendant) appeals from final judgments in the amounts of $1,461,000 and $1,907,605 entered in favor of the estates of plaintiff- employees Carlos Diaz (Carlos) and Victor M. Diaz, Jr., (Victor), respectively, challenging the jury verdict and related motion orders. These cases arise out of a December 1, 2007 industrial accident in which plaintiffs were found dead at the bottom of a wastewater treatment tank.
Although named as three distinct corporate entities, the record reflects that defendants effectively operated as one single business, and we will address them as such. For ease of reference, we refer to defendants as North East Linen or defendant. Similarly, we refer to the deceased employees collectively, as plaintiffs, and individually, by their first names.
On appeal, North East Linen argues the trial court erred in: (1) admitting and relying upon evidence of conduct under the facility's previous owner; (2) failing to bar the suit as a matter of law under the exclusive remedy provision of the Workers Compensation Act, N.J.S.A. 34:15-8 (the Act); and (3) declining to issue a comparative-fault jury charge. We disagree and discern no reversible error. Therefore, we affirm.
I.
We begin by summarizing the most pertinent trial evidence. North East Linen operates a large-scale commercial laundry business. In June 2006, defendant purchased the Linden laundry facility from another company, Morey LaRue, continuing operations without interruption of service or pertinent change of staff. In particular, defendant continued employing Peter Aguirre as the maintenance manager and safety instructor.
The Linden facility included an open, cylindrical wastewater tank, approximately fifteen-feet high and eight-feet across. The tank was in a room with no ventilation except for a large door and several windows, all of which were kept closed in cold weather. An affixed ladder led up the side of the tank, and a wooden platform could be affixed to the ladder, allowing employees to stand waist-high with the top edge of the tank. A sign posted on the side of the tank warned:
DANGER
CONFINED SPACE
ENTER BY PERMIT ONLY
The tank was used to adjust the pH level of wastewater by adding sulfuric acid, rendering it safe to be drained into the sewer system. A probe continually monitored the wastewater, and automatically activated a pump that dripped sulfuric acid into the tank, lowering the pH level. Two propellers on a vertical shaft descending down the middle of the tank circulated the water to distribute the acid evenly. Defendant provided long rubber gloves, a rubber apron, a face shield, and goggles for employees replacing the supply of sulfuric acid. In addition to sulfuric acid, the tank contained various cleaning chemicals.
Aguirre began working for Morey LaRue approximately twenty years before North East Linen purchased the Linden facility. Despite holding the position of safety director and hazardous communications instructor, Aguirre had only received on-the-job training, with no formal instruction. He admitted being only "somewhat familiar" with safety regulations for entry into confined spaces, and did not know what permit the sign on the wastewater tank referenced. At trial, he repeatedly emphasized he was "not a chemist." Nevertheless, Aguirre understood that entering the tank had the potential to cause death by asphyxiation.
Carlos and Victor were new employees hired by defendant after purchasing the company. Carlos was employed in the maintenance department under Aguirre, and received training on hazardous communications and locking down equipment under repair. Victor was a delivery driver, and took on other assignments for extra money. He did not receive a copy of defendant's confined-space policy, and there is no evidence he was trained in hazardous communications or equipment lockdown. Manny Diaz (Manny), Victor's brother, also worked for Morey LaRue and defendant for approximately twenty years as a delivery driver and route manager.
Aguirre described Victor as his "best friend[,]" and stated he "got along real well" with Carlos. However, Manny disputed Aguirre's description, testifying Victor's relationship with Aguirre was "[j]ust [a] work relation, . . . nothing serious[,]" and not "best friends."
Red Bunting, Fernando Martinez, and Eddie Cruz had all worked in the maintenance department with Aguirre. Bunting left before North East Linen purchased the Linden facility; Martinez began working there in July 1995, and Cruz began around 1997. Both Martinez and Cruz continued working for defendant after the subject accident. Defendant eventually fired Cruz after an incident related to a fight or threat against another employee.
The record indicates that two types of maintenance procedures were performed on the wastewater tank. The first occurred when the pH probe's readings became inaccurate and failed to register the pH level was above city standards. Aguirre would first check for a chemical film on the probe. Then he would use a skimmer to scrape the solids that accumulated on the sides of the tank.
The second procedure involved cleaning the tank's propellers. Lint and debris would become tightly wrapped around the propellers. The debris would cause the tank to shake and water to splash out of the top. Employees had developed an unofficial routine of entering the tank to cut the debris free. Martinez learned the procedure from Bunting, and later taught it to Cruz.
When performing maintenance, the tank would be drained on Friday, and cleaned on Saturday while the facility was otherwise closed. The drain was above the floor of the tank, and would leave behind approximately two inches of liquid. Aguirre was generally not present to supervise the cleanings, as he normally did not work on Saturdays.
Under Morey LaRue, Martinez would clean the propellers with one other co-worker, first Bunting and later Cruz. They wore rubber boots, a raincoat, a dust mask, glasses, and rubber gloves. They shut off the acid pump and placed a ladder inside the tank. One employee climbed down into the tank while his co-worker remained outside to watch. Using cutting pliers, the employee in the tank attempted to cut the debris free, and then placed it in a bucket tied to the ladder. Both Martinez and Cruz tried to limit their time in the tank due to fumes. If it took more than a couple of minutes, they would alternate turns.
Testimony varied as to how frequently the tank was cleaned, as well as to Aguirre's knowledge of the unofficial procedure. Both Martinez and Cruz testified that Aguirre was aware that they entered the wastewater tank, and denied Aguirre had ever instructed them not to do so. According to Cruz, they would leave the bucket of debris out for Aguirre, thereby alerting him to their entry into the tank. According to Martinez, they generally cleaned the propellers once per year, while Cruz testified they cleaned the propellers twice per year. Neither Martinez nor Cruz had cleaned the propellers since defendant purchased the Linden facility. Manny testified he knew the wastewater tank was dangerous, and he had seen Bunting, Martinez, and Cruz enter the tank on weekends.
In contrast, Aguirre testified he was only aware of Martinez and Cruz entering the tank on two occasions. He had seen a ladder placed in the tank on four prior occasions, twice by himself, once by Martinez, and once by Cruz. Of the two occasions Aguirre entered the tank, once was before it was in use, and once was fifteen or sixteen years prior to the deaths of Carlos and Victor.
According to Aguirre, North East Linen followed the same safety standards as Morey LaRue. Both had identical written policies against entering the tank, and none of the employees held the permit called for by the sign on the wastewater tank. The policy stated:
The pH wastewater treatment tank is not to be entered for any reason. When it must be cleaned it will be done using the following steps:
1. Lockout and Tagout the mixer motor power source.
2. Remove the plug from the drain located on the outside of the tank near the flowmeter.
3. Thread on the hose to the drain and divert the water into the large pit.
4. Open the ball valve and allow the tank to drain.
5. When the tank is empty, from the platform on the top of the tank, take water hose and wash down the sides and bottom of the tank.Defendant never gave a copy of this policy to Victor, and there is no evidence in the record that defendant gave a copy to Carlos. The policy was kept in Aguirre's office, which was only unlocked when he was at work.
6. When the solids have been flushed remove the hose and replace the plug.
7. Under no condition will any employee enter the inside of the tank!
At trial, Aguirre insisted:
I never sent anybody into that tank. Ever. I would tell them that we've got to clean the tank, we've got to clean off the propeller, but I would always learn after. I never sent anyone into that tank.
North East Linen's written policy further provided that a violation of the safety rules required a documented verbal warning on the first offense and a written warning on the second offense. Nevertheless, Aguirre never took action to prevent employees from entering the tank, never reported or recorded anything in the personnel files of Martinez or Cruz, and never told any other managers that employees were entering the tank. At trial he explained that he "wasn't much of a disciplinarian[,]" and despite understanding the risks involved, "didn't want to get anybody in trouble."
When dealing with the New Jersey Department of Labor, Aguirre referenced the written policy, and declined to report past entries into the tank. Despite the official policy against entry into the tank, North East Linen never developed a protocol or trained its employees on how to work in confined spaces.
None of the employees ever reported injuries to Aguirre as a result of entering the tank. However, at trial, Martinez described the tank as hot, humid, and suffocating, with a strong acid odor that made him feel ill. On one occasion the fumes made Martinez dizzy.
In late November 2007, the city informed Aguirre that there was a problem with the pH level of defendant's wastewater. Aguirre scraped at the solids on the tank's waterline, and observed the level improved. On November 30, 2007, Aguirre had the wastewater tank drained for cleaning the following day. Cruz was unavailable to work that day, and Aguirre assigned the job to Carlos.
Aguirre testified that he instructed Carlos to stand on the platform next to the tank and spray down the inside with a pressure washer. Aguirre also testified that he told Carlos to stay on the platform, and "not [to go] into the tank." Aguirre called Victor and told him to report to work the next day to help Carlos, but provided Victor with no specific instructions. Two people were necessary for the job because the pressure washer motor and valve remained on the ground, and could not be controlled from the platform.
On December 1, 2007, one of defendant's managers found plaintiffs lying unresponsive, face-down in the liquid at the bottom of the wastewater tank and the fire department was called. After determining that both workers were dead, the operation shifted from rescue to recovery of the bodies. The fire department tested the air in the tank, and discovered the levels of both hydrogen sulfide and carbon monoxide were well above safety guidelines. After exhaust fans were used to clear the air for approximately one hour, the area around the tanks was determined to be safe. Three hours later, emergency personnel entered the tank and recovered the bodies.
Photographs of the bodies showed Carlos and Victor wore latex gloves, dust masks, and plastic sheeting taped around their shoes. They had apparently entered the inside of the tank via the same fiberglass ladder used in the past by Martinez and Cruz. The power washer was near the foot of the ladder. One or two windows were "cracked" open, but the room was otherwise sealed against the cold weather.
According to the testimony of the medical examiner, Carlos and Victor sustained chemical burns to approximately half of their body surfaces, including their faces and eyes, as well as pulmonary edema and foam in their lungs indicating inhalation of chemical fumes. There was no visual burn damage to the lungs, but the examiner concluded from the severe pulmonary edema that there had been severe inhalation injuries. The examiner concluded the cause of death for both plaintiffs was inhalation of chemical fumes.
Plaintiff's medical expert opined the chemical burns would have caused intense pain, and the pulmonary edema and foam would have caused them to feel as if they were drowning. According to the expert, it would have taken at least five to ten minutes for Carlos and Victor to lose consciousness, and chemical burns to their eyes would have prevented them from seeing. He explained such a death would include "pain and increasing air hunger, increasing shortness of breath, increasing fear, increasing terror, and awareness [of impending death]. . . . [T]heir last moments were awful."
Defendant's medical expert disagreed with the medical examiner's conclusion on cause of death. Noting the absence of visible hemorrhaging in the lungs, defendant's expert testified that the pulmonary edema occurred after death, and did not indicate damage to the lungs. Defendant's expert instead concluded that Carlos and Victor died of oxygen depletion, which he described as sudden, immediate, and without pain.
Before trial, North East Linen moved for summary judgment, seeking dismissal of all claims and arguing that plaintiffs' claims did not result from any intentional wrong and were therefore barred by the exclusivity bar of N.J.S.A. 34:15-8. North East Linen also moved to bar evidence of employee conduct under the prior owner and operator of the Linden facility, Morey LaRue. The trial court denied both motions.
In March 2013, the case was tried over eight days before Judge W. Hunt Dumont. At the end of the trial, North East Linen moved for judgment pursuant to R. 4:40-1. Defendant also moved to charge the jury with comparative-fault instructions. The court denied both motions.
On March 13, 2014, the jury returned a verdict in favor of plaintiffs. In so doing, the jury found that North East Linen "act[ed] with the knowledge that its conduct was substantially certain to result in . . . death or injury[,]" and "defendant's conduct [was] a proximate cause of the death[s] of Carlos" and Victor. Defendant moved for a new trial, which the court denied on May 15, 2013. This appeal followed.
II.
We first turn to the admission of prior conduct occurring while Morey LaRue owned the Linden facility. We review evidentiary rulings under the deferential abuse of discretion standard. Townsend v. Pierre, 221 N.J. 36, 53 (2015) (citations omitted). As always, we give no deference to legal conclusions, and apply the law de novo. Id. at 59 (citation omitted). However, we give broad discretion to the trial court in weighing probative value against undue prejudice under N.J.R.E. 403, and only overturn a palpable abuse of discretion, "that is, [a] finding . . . so wide of the mark that a manifest denial of justice resulted." State v. Carter, 91 N.J. 86, 106 (1982).
To suppress unduly prejudicial evidence, the moving party must demonstrate the "probative value is substantially outweighed by the risk of . . . undue prejudice, confusion of issues, or misleading the jury . . . ." N.J.R.E. 403. Significant proof should not be excluded, even when "shrouded with unsavory implications[,]" and overwhelmingly probative evidence may be admitted despite a high risk of undue prejudice. Rosenblit v. Zimmerman, 166 N.J. 391, 410 (2001) (quoting State v. West, 29 N.J. 327, 335 (1959)). Additionally, prejudicial effect is not always undue. See State v. Bowens, 219 N.J. Super. 290, 297 (App. Div. 1987) ("Damaging evidence usually is very prejudicial but the question here is whether the risk of undue prejudice was too high.").
Here, the conduct at issue is relevant to: (1) Aguirre's credibility as a testifying witness under N.J.R.E. 607 and 608; (2) Carlos and Victor's potentially inferred belief that entering the tank was safe, and that cleaning the tank necessarily entailed climbing down into the tank via a ladder; and (3) defendant's knowledge of and disinterest in changing the unofficial routine. See NCP Litig. Trust v. KPMG LLP, 187 N.J. 353, 393 (2006) (quoting Hercules Powder Co. v. Nieratko, 113 N.J.L. 195, 199 (Sup. Ct. 1934)) ("Knowledge of [a] proper corporate agent must be regarded as, in legal effect, the knowledge of the corporation."). Against the relevance of the evidence, we weigh the possibility the jury could have confused Morey LaRue with defendant, or sought to punish Aguirre, through defendant, for conduct occurring under Morey LaRue.
Absent the prior-conduct evidence, it would have inaccurately appeared that Carlos and Victor entered the tank without any precedent, and contrary to the expectations of Aguirre and defendant. Given the high deference due to the trial court, as well as the relevance of the prior conduct as both impeaching Aguirre's credibility and inferring that defendant, through Aguirre, knew of employees routinely entering the tank during cleaning, we discern no abuse of discretion in the trial court's denial of defendant's motion to exclude the prior-conduct evidence.
III.
We next address defendant's motion for judgment at trial, and its argument that the Act bars plaintiffs' claims as a matter of law.
Defendant's brief also references its motion for summary judgment. However, defendant failed to submit the full transcripts of that motion, and we therefore address defendant's argument in the context of its motion for judgment at trial. Regardless, the record clearly reflects that defendant's summary judgment motion was correctly denied.
A motion for judgment at the close of the evidence, pursuant to Rule 4:40-1, is considered using the following standard:
[W]hether "the evidence, together with the legitimate inferences therefrom, could sustain a judgment in . . . favor" of the party opposing the motion, i.e., if, accepting as true all the evidence which supports the position of the party defending against the motion and according him the benefit of all inferences which can reasonably and legitimately be deduced therefrom, reasonable minds could differ, the motion must be denied. The point is that the judicial function here is quite a mechanical one. The trial court is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the party opposing the motion.
[Dolson v. Anastasia, 55 N.J. 2, 5-6 (1969) (citations and quotation marks omitted).]
We review a trial court's decision to grant or deny a new trial motion using the following standard:
The standard of review on appeal from decisions on motions for a new trial is the same as that governing the trial judge — whether there was a miscarriage of justice under the law. Bender v. Adelson, 187 N.J. 411, 435 (2006); Diakamopoulos v. Monmouth Med. Ctr., 312 N.J. Super. 20, 36-37 (App. Div. 1998). However, in deciding that issue, an appellate court must give "due deference" to the trial court's "feel of the case." Jastram v. Kruse, 197 N.J. 216, 230 (2008); see also R. 2:10-2; Carrino v. Novotny, 78 N.J. 355, 360 (1979).
[Risko v. Thompson Muller Auto. Group, Inc., 206 N.J. 506, 522 (2011).]
While we defer to the trial judge's feel for the evidence, we owe no special deference to the judge's interpretation of the law. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
As an issue of law, we review de novo the denial of a motion for judgment at trial. Id. at 511. We independently apply the same standard as the trial court. Ibid.
The Act provides:
If an injury or death is compensable under this article, a person shall not be liable to anyone at common law or otherwise on account of such injury or death for any act or omission occurring while such person was
in the same employ as the person injured or killed, except for intentional wrong.This provision immunizes employers from liability for negligent, reckless, or wanton conduct. Van Dunk v. Reckson Assocs. Realty Corp., 210 N.J. 449, 460 (2012).
[N.J.S.A. 34:15-8.]
In evaluating whether the employer's conduct constitutes an intentional wrong, an employee need not prove a subjective intention to injure. Id. at 451. Instead, we apply the substantial certainty test:
(1) the employer must know that his actions are substantially certain to result in injury or death to the employee, and (2) the resulting injury and the circumstances of its infliction on the worker must be (a) more than a fact of life of industrial employment and (b) plainly beyond anything the Legislature intended the [Act] to immunize.We evaluate this test based upon the totality of the circumstances. Id. at 469.
[Id. at 462 (quoting Laidlow v. Hariton Mach. Co., Inc., 170 N.J. 602, 617 (2002)).]
The first prong of the substantial certainty test cannot be satisfied by some level of likelihood of injury or death, and instead requires a "virtual certainty." Id. at 461 (quoting Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 161, 178 (1985)). In evaluating substantial certainty, courts have considered: the intentional misleading or withholding of information from employees or OSHA, any reports of prior incidents, the existence of warning labels, and the removal of safety precautions. See id. at 459-66 (reviewing the relevant case law).
As here, courts charge the jury with proximate causation as a separate element from intentional wrong. See Tomeo v. Thomas Whitesell Constr. Co., 176 N.J. 366, 381 (2003) (Albin, J., dissenting). Nevertheless, in legal analysis, proximate or intervening causation has been treated as a factor in both prongs of the substantial certainty test. Fisher v. Sears, Roebuck & Co., 363 N.J. Super. 457, 471 (App. Div. 2003), certif. denied, 179 N.J. 310 (2004). A plaintiff employee's "conduct can be considered in analyzing the context prong and as an intervening-superceding cause that affects the substantial certainty prong as well. . . . The 'substantial certainty' prong and the legal concept of causation are intertwined." Tomeo, supra, 176 N.J. at 375-78 (citation omitted).
The cases under review depart from the traditional substantial certainty cases in that no party disputes that entering into the wastewater tank presented a substantial certainty of harm. Instead, the dispute centers on the issue of proximate causation. Prior misconduct under Morey LaRue cannot be attributed to defendant, and therefore liability cannot be assigned on the basis of those violations alone. Instead, the inquiry is limited to conduct occurring after defendant purchased the business, with the previously discussed caveat that defendant, through Aguirre, knew of the prior conduct.
Clearly, a direct order to enter the wastewater tank would have supported a verdict of intentional wrong under the Act. Accordingly, the issue is not whether Carlos and Victor were exposed to a substantial certainty of injury, but instead whether defendant's conduct was a proximate cause of that exposure. --------
Interpreting the evidence in the light most favorable to plaintiffs, in particular the significant attacks on Aguirre's credibility, a reasonable juror could have deduced Aguirre intended for Carlos and Victor to enter the wastewater tank. Moreover, a reasonable juror could have found Aguirre's credibility was sufficiently impeached to support an adverse inference that he affirmatively instructed Carlos to enter the tank.
These potential findings are sufficient to create a genuine material dispute as to proximate cause. Similarly, the trial court reasonably found that, absent training, the toxic conditions inside of the tank were "more than a fact of life of industrial employment" at a commercial laundry facility, and "plainly beyond anything the Legislature intended the [Act] to immunize." Van Dunk, supra, 210 N.J. at 462 (quoting Laidlow, supra, 170 N.J. at 617). Accordingly, defendant was not entitled to judgment as a matter of law, and we affirm the denial of defendant's motion for judgment at the close of the evidence.
We further discern no indication that the jury's verdict represents a miscarriage of justice. After carefully reviewing the compelling evidence of record that supported the jury's verdict, Judge Dumont set forth his reasons for denying defendant's motion for a new trial:
In sum, this was not just a case of neglecting safety standards, or tolerating workplace hazards. This was a case of willful failure to remedy past violations, and repeated deception by the company not just to its own employees, but also to federal and state regulators as to what really was going on at this facility in the wastewater treatment.The record fully supports the judge's findings and conclusions. We therefore affirm the trial court's denial of defendant's motion for a new trial.
The credible evidence more than supported the jury's finding of liability. While the jury's decision answered the conduct prong of the intentional wrong standard, it is up to the Court to decide the context prong as a matter of law . . . .
The Court recognizes that industrial employment exposes workers to the risk of injury and disease, but the circumstances here as to how these men died is beyond the realm of what the [L]egislature contemplated enacting the compensation statute.
IV.
Finally, we address the denial of a comparative-fault jury charge. Appropriate and proper jury charges are essential to a fair trial. Velazquez v. Portadin, 163 N.J. 677, 688 (2000). An error in the jury charge warrants a new trial if correct instructions might have changed the outcome. Ibid.
"New Jersey law favors the apportionment of fault among responsible parties." Bolz v. Bolz, 400 N.J. Super. 154, 159 (App. Div. 2008) (quoting Verni ex rel. Burstein v. Stevens, 387 N.J. Super. 160, 206 (2006), certif. denied, 189 N.J. 429 (2007)). The Comparative Negligence Act, N.J.S.A. 2A:15-5.1 to -5.4, provides, "[i]n all negligence actions and strict liability actions in which the question of liability is in dispute," the jury shall apportion the plaintiff's damages by relative negligence or fault. N.J.S.A. 2A:15-5.2. "Any damages sustained shall be diminished by the percentage sustained of negligence attributable to the person recovering." N.J.S.A. 2A:15-5.1.
To compel submission of comparative fault to the jury, the movant must present sufficient evidence to create a legitimate inference of negligent and proximate causation. Fernandes v. DAR Development Corp., 222 N.J. 390, 409 (2015). Bald assumptions and speculation are insufficient to support such a charge. La Morgese v. Kern-O-Mix, Inc., 82 N.J. Super. 581, 586 (App. Div. 1964). We see no basis to let the jury consider whether two untrained and unsupervised workers were comparatively negligent for entering the tank after Aguirre called them in on a Saturday to clean the tank.
Defendant failed to appropriately warn or train Carlos and Victor regarding the tank, and failed to train Victor in emergency response. Plaintiffs' negligence, if any, arises out of Aguirre's alleged contrary instructions, and absent appropriate instructions or training, there was insufficient evidence to create a legitimate inference that either plaintiff was negligent and his negligence proximately caused the fatal injuries sustained. See Fernandes, supra, 222 N.J. at 409.
In any event, we discern no reversible error due to the failure to charge comparative fault. Aguirre testified that he told Carlos not to enter the wastewater tank. However, the jurors' finding of proximate causation demonstrates their disbelief of Aguirre's account. Accordingly, we find no basis for concluding that the comparative-fault charge might have affected the outcome. See Velazquez, supra, 163 N.J. at 688.
As we discern no reversible error, we affirm the final judgments, and related jury verdict and motion orders.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION