In Memorium – Donald J. P. Sweeney – 1938-2021Please Click Here
20Jun 2016

Associates Neal Thakkar and Joe Hauschildt recently prevailed in New Jersey’s Appellate Division in Lassandro v. Pep Boys, a case involving the intentional wrong exception to the exclusive remedy provision of the Workers’ Compensation Act. Under the Act, if an employee is entitled to recover workers’ compensation benefits, he is barred from suing his employer in tort unless the employer committed an intentional wrong. To overcome the bar, the plaintiff must prove that the employer’s act was substantially certain to result in injury or death, and that the resulting injury was plainly beyond what the legislature intended to immunize. This is a formidable standard that permits a plaintiff to recover in tort only under the most egregious of circumstances.

Here, the plaintiff was a service technician at Pep Boys, and he was injured while loading a vehicle onto a lift when the lift suddenly dropped, causing him to fall and injure his knee. The lift’s safety mechanisms had been disabled by another technician for convenience, but not at the direction of management. There had been no prior close calls with the lift, and the modification did not increase profit or productivity at the expense of safety. The evidence did show, however, that Pep Boys should have been aware that the safeties were defeated, and that it permitted the condition to exist for at least two years.

Plaintiff recovered workers’ compensation benefits, but sued Pep Boys for damages. The trial court denied summary judgment, but the Appellate Division granted leave to appeal and reversed. In its opinion, the court found that while Pep Boys’ conduct was arguably negligent, creating a risk of injury by omission is not tantamount to acting with the substantial certainty that an injury would result. Further, the court held that the injury suffered by plaintiff was not one that plainly beyond what the legislature intended to immunize, as the nature of the plaintiff’s employment led to the risk of injury.

Joe Hauschildt, a former Appellate Division clerk, wrote the brief, and Neal Thakkar argued the case. The opinion can be found here: http://www.njlawarchive.com/201606101025091314065283

Donald J. P. Sweeney, Esquire

1938-2021

Sweeney & Sheehan mourns the loss of its founder, Donald J.P. Sweeney, Esquire, on June 8, 2021. He was a proud graduate of St. Athanasius Catholic School, St. Joseph's Preparatory School, Villanova University and Temple Law School. He practiced law for nearly 40 years, and founded Sweeney & Sheehan in 1971. He was active litigator and he specialized in catastrophic product liability cases. Don supported his children's activities, serving as soccer coach at St. Albert the Great Catholic Church and President of the CYO. He was a lector for nearly 48 years and a member of the choir. He was an active supporter of St. Joseph's Prep and was awarded the Alumnus of the Year Award in 1999 and the Rev. Charles Schnorr, SJ '37 Service Award in 2005. He retired from the practice of law in 2004.

Don is survived by his wife of 59 years, Ann, his children, Shannon, Patrick, Daniel, Gerard and Suzanne, and ten grandchildren.

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