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Delivery Truck Driver Has No Duty to Inspect for Children Hitching a Ride
On July 6, 2011, The Superior Court of New Jersey, Appellate Division, held in Badalamenti v. Simpkiss that a driver of a delivery truck had no duty of care to inspect for unexpected riders on the back of his truck, after a teenager fell off the back of defendant’s truck and was injured, affirming the lower court and following 75-year old case precedent.
Plaintiffs, Anthony Badalamenti and his mother, Josephine Badlamenti sued delivery truckman Victor Simpkiss III, and his employer, COPD Services, Inc., for Anthony’s injuries arising from an accident that occurred on March 10, 2006 in Cinnaminson, New Jersey. At approximately 4:00 pm, Mr. Simpkiss parked COPD’s delivery truck on the street to deliver an order to a customer’s home. While Mr. Simpkiss was carrying equipment in and out of the home, Anthony, then fifteen years old, and two other teenage friends decided to sit on the rear platform of the defendants truck. Mr. Simpkiss, unaware of the teenagers’ presence, started the engine and went back inside the home for approximately three minutes. The teenage boys conversed about how fun it would be to go for a ride on the back of the truck.
Mr. Simpkiss returned to his truck, backed up, and then drove away, still unaware of the teenagers sitting on the back of his truck. The truck hit a bump, causing Anthony to fall off and hit his head, resulting in significant injuries. Plaintiffs brought suit against Mr. Simpkiss, his employer, and the owner of the truck, alleging causes of action sounding in negligence. But was there a duty breached by Mr. Simpkiss?
Plaintiffs allege that Mr. Simpkiss had a legal duty to inspect the rear of the truck before driving off. Specifically, plaintiffs point to commercial driving standards which mandate an inspection of the truck. The Court, however, stated that there must be a direct relation of cause and effect between the violation of the statute and the ensuing injury, otherwise there is no liability. The risks that could reasonably follow from a violation of the CDL regulations include deflated tires, malfunctioning lights and brakes, or loss of cargo. These regulations are intended to help ensure that the truck is roadworthy. Anthony’s injury, resulting from his fall off the bumper, is not a harm that the CDL manual intended to protect, and Anthony was not in the class of persons intended to be so protected. The court also described as “tenuous” the implication that the CDL Manual calls for an inspection of the truck at every delivery stop.
The Court breathed life into the 75-year old New Jersey case of Meade v. Purity Bakers, 115 N.J.L. 471 (E. & A. 1935) and referred to Meade as governing law under an identical fact situation, which held that no duty exists to a trespasser except to not willfully or wantonly injure them after learning of their presence. The Court held that, “[w]e can see no duty upon the owner or driver of a truck to anticipate that a playful child will sit upon the rear step. Attraction or temptation is not legally equivalent to invitation.”
The Court also found support in case law from thirteen other states and the Sixth Circuit Court of Appeals (applying Ohio law), with similar facts and the conclusion that a trucker driver has no duty to inspect for trespassing children. The only duty is to refrain from willfully and wantonly injuring a trespasser once his or her presence is known. The cases range from Massachusetts to Florida, New Jersey to California, and Wisconsin to Alabama and Texas. Many involve serious injuries, and even death, to the children, but like Meade in New Jersey, all find no breach of duty.
For example, in White v. Edwards Chevrolet Co., 43 S.E.2d 870 (Va. 1947), the court held that the defendant driver owed no duty to a six-year-old boy who secreted himself behind the cab of the defendant’s truck after the defendant had shooed off two other boys. The court noted that although the defendant did not have a valid driver’s licence at the time of the accident, “there is an entire lack of evidence of any causal connection between the statutory violations and the child’s injury and death,” and that the driver was under no obligation to walk around the vehicle in search of trespassers. The Michigan Supreme Court in Ravey v. Healy, N.W. 692 (Mich.1937) also held that there was no duty owed to a ten-year-old child who, after being twice told to get off the car’s running board but then hid from the driver by crouching down, was injured when she fell or jumped off the running board of the defendant’s car. The New York Supreme Court, Appellate Division also held that the there is no duty to a trespassing child, even when the vehicle is an ice cream truck. Pinto v. Mr. Softee of N.Y., Inc., 254 N.Y.S.2d 683 (1st Dept. 1964) (“Owners of such trucks cannot be cast in damages merely because a child is injured in attempting to hitch a ride on them.”).
Other cases were discussed with the same conclusion. Cases in Alabama, California and Kansas involved boys on roller skates hitching rides on moving trucks, while those in Florida, Maryland, Massachusetts, Ohio (Sixth Circuit case), Pennsylvania and Texas, involved youths jumping onto the backs of trucks or hiding behind them. A case in Iowa involved the death of a two year old, and in Wisconsin a three year old lost his leg. Despite the serious injuries, these courts all found the truck drivers owed no duty to inspect for these young trespassers.
The Court in Badalamenti explained that there is no bright-line rule that determines when one owes a legal duty to prevent the risk of harm to another, and generally the issue is a matter of law for the courts to decide on a case by case basis. The most important factor considered, weighed, and balanced is the objective foreseeability of harm, based on the totality of the circumstances. The New Jersey Court found that foreseeability was not present.
Since there was no evidence that Mr. Simpkiss knew of Anthony’s trespassing presence on the bumper, the Court concluded that defendants must prevail as a matter of law. Mr. Simpkiss owed Anthony no duty except to refrain from willfully and wantonly injuring him, and there is no evidence to support that assertion.
© August 2011, Law Offices of John C. Lane
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