A civil suit by a teenager who had his right leg amputated as a result of a forklift injury he sustained while trespassing in a construction site in a busy shopping center in Sicklerville was reinstated by a state appeals court.
The suit claims his injury could have been prevented if the building’s entryway hadn’t been open, more signs had been posted warning of a building zone and keys to the forklift hadn’t been left in the ignition that made it inviting.
An Appellate Division panel in its decision Tuesday reversed a lower court’s summary judgment order in favor of the companies behind the construction project for allegedly failing to provide adequate warning and barriers.
The case was on appeal from Camden County Superior Court.
According to the decision, Alexander S. Cortes was 16 years old when the incident occurred that led to an above-the-knee amputation of his right leg, which was crushed between a forklift and pillar when he and a friend entered a building under construction at the shopping center.
Named as defendants are Garrard Construction Group Inc., Hobby Lobby Stores Inc. and Holz and Henry Inc. (H&H), C Keys LLC, Stoltz Management of Delaware Inc. and Seth Patterson, the other teen who entered the site with Cortes.
Appellate Division Judges Arnold L. Natali Jr. and Joseph L. Yannotti ruled that “a reasonable factfinder could conclude that the area was insufficiently secured to prevent minors from entering the construction site and the illuminated Hobby Lobby building.”
The court, viewing the facts most favorably to the plaintiffs at the summary judgment stage, said Garrard and H&H fell short in meeting safety guidelines for securing a site located within a busy traffic area.
The Shoppes shopping center in Sicklerville is an active one that attracted teenagers, like Cortes and Patterson, also 16, especially during summertime.
Furthermore, the court said, the construction zone’s proximity to both a residential neighborhood and an active shopping center meant increased traffic by teenagers.
The panel found “sufficient factual questions existed in the motion record to defeat summary judgment for Garrard” under section 339(a) of the Restatement of Torts, and reached “a similar conclusion with respect to H&H.”
Alfred J. Falcione of Flynn & Associates in Cherry Hill, who represents Cortes in the civil suit, did not return a call.
John J. Delany III of Delany McBride in Philadelphia represented Garrard Construction Group Inc. and Hobby Lobby Stores Inc. Delany could not be reached immediately for comment.
David A. Semple of McCormick & Priore in Princeton, who argued for H&H, did not return a call.
According to the decision, Cortes and Patterson trespassed onto the 14-acre construction site controlled by Garrard of Duluth, Georgia, and H&H of Lansdale, Pennsylvania, and took turns operating a forklift inside one of the buildings under construction.
Defendant C Keys owned the shopping center and leased a portion of the building to Hobby Lobby, with the understanding that Hobby Lobby would build a retail store on the premises. Hobby Lobby hired Garrard as its general contractor to construct the building, and C Keys hired H&H to prepare the surrounding site work.
While Patterson was driving the forklift, Cortes attempted to jump off the machine, and got his right leg caught, then crushed, between the forklift and a pillar, the decision said.
Cortes and his parents, Jose and Renata Cortes, claim the defendants failed to exercise due care in controlling the construction site by insufficiently securing the site against unauthorized entry.
In separate April 27, 2018, orders, the court below granted Garrard’s and H&H’s motions for summary judgment, concluding Cortes failed to establish that the defendants knew, or had reason to know, that minors were likely to trespass onto the construction site.
The orders were signed by Camden County Superior Court Judge Michael Joyce, according to electronic court records. Joyce also denied the plaintiffs’ motion for reconsideration.
Section 339(a) of the restatement “provides that a possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land” rendering it a risk.
Cortes’ appeal followed.
“Specifically, plaintiffs maintain the summary judgment record created a genuine and material factual dispute regarding whether Garrard and H&H had ‘reason to know’ that minors were likely to trespass on the construction site,” the panel wrote in the per curiam decision Tuesday. “We agree.”
The panel said section 339 of the restatement “is an exception to the common law rule immunizing [a] possessor of land from liability resulting from injury to the trespasser, absent willful or intentional conduct.” Section 339(a) required the plaintiffs to establish that defendants knew or had “reason to know” children were likely to trespass into the building where the forklift was located, the court said.
On the evening of Aug. 20, 2015, Cortes and Patterson were walking at The Shoppes in the direction of the Hobby Lobby building and entered one of the lit buildings, Cortes testified, according to the court. They walked into the building through the front entrance, and Cortes stated they intended to engage in “parkour”—a form of creative free running.
Patterson testified that he didn’t recall having to remove any caution tape or any plywood behind any door frames in the entranceways when they entered the building and didn’t remember seeing any plastic wrap on any part of the door frame. Nor did he have to remove any plastic before walking through the entryway, the court said. Cortes stated the building was “completely open” and did not have “any caution signs or anything like that. There was completely empty space,” according to his testimony. This, he said, encouraged him and Patterson to enter the building.
After entering, the teens found a ladder and climbed onto the roof, looked out over the Atlantic City Expressway, then went back down into the building, the court said.
Cortes testified that they were about to leave when Patterson saw the forklift, walked over to it and said aloud that the keys were in the ignition.
That’s when they decided to turn on the machine, Cortes testified. Both drove the forklift before Cortes’ injury occurred.
The court noted testimony from Gerald Heulitt, H&H’s project superintendent, that there were “Road Closed” signs, “Keep Out” signs, orange safety fencing, and traffic cones on H&H’s portion of the property on the night of Cortes’s accident.
However, James Lennon, H&H’s project manager, acknowledged that orange safety fencing, barrels, and caution tape were not considered “barricades” pursuant to H&H’s safety manual and conceded there were no such barricades up, according to the decision.
Sean Reagan, Garrard’s superintendent for the project, testified there was no glass in the storefront door frames the day of the incident, fencing was not in place around the whole site, and it was “odd” that a chain link fence was not set up around the entire site. But Reagan stated, “we secured the building so that anyone—child, adult, juvenile or whatever—would know the danger of going into that building” by “barricading” the door frames with caution tape and plastic. Still, Reagan, who was the last person to leave the Hobby Lobby building on the date of the injury, said “best practices dictates that you do not leave keys in equipment,” and such would be a violation of Garrard’s safety policy, though he denied personally leaving the keys in the machine, the court noted.
According to the decision, Reagan told police that the key to the forklift “was believed to be hidden on the forklift by the operator,” which Reagan stated was common practice. He said he thought the key was left on top of a hot water heater behind a locked hollow metal door.
During discovery, the court noted, Garrard produced its safety manual. Under a subheading entitled “Children and Construction,” the manual provides: “Most construction sites are like oil and water for children; they don’t mix. Conversely, like iron and a magnet, children are attracted to any type of construction. Children like to explore.” Garrard’s manual also notes that, “All excavations are potential forts or swimming pools. Scaffolds become gym sets,” and recommends use of fences and locks, among other measures.
“Viewing the testimony … in the light most favorable to plaintiffs, a reasonable factfinder could conclude that the area was insufficiently secured to prevent minors from entering the construction site,” the Appellate Division wrote.