On December 7, 2021, Claimant filed a Petition to Determine Compensation Due alleging he injured his knee and low back when he slipped and fell on ice while working as a custodian on February 1, 2021. Employer took the position that the claimant did not fall as alleged. A limited Hearing was held to determine whether a fall occurred at work.

Claimant testified that there was a snow and ice storm the evening before the incident. He arrived at work for his shift early in the morning. He carefully exited his vehicle and walked into the school building. He decided to shovel snow in a side door area and fell. He called his supervisor. He told the supervisor he fell. He called 911. The supervisor and EMTs arrived at around the same time. Claimant’s supervisor testified that he was at another school nearby when claimant called to report the injury. Claimant said he had fallen at the “back dock” when he was first entering the school upon arrival. The supervisor showed the “back dock” video to the Board. Claimant walked into the building without falling. The supervisor listed the area of the fall as “back dock” on an incident report, based on what claimant told him. The supervisor questioned why claimant would have decided to shovel the side door area as he testified. The side door area is one of the lowest priority areas in terms of snow removal. The supervisor also noted that he arrived at the school just when the EMTs were walking the claimant out of the school. They met at the “back dock” area. Claimant pointed to a step on the back dock area and said “that’s where I fell”. The supervisor showed the Board video of this particular interaction. There was no audio available, but the claimant did stop at the stairs, and point to same, while speaking in an animated way with the EMTs. Claimant testified in rebuttal that what he actually said was “be careful on that step, you don’t want to fall like I did”. He did not say that was where he had fallen.

Due to inconsistencies between Claimant’s testimony and his supervisor’s testimony, the Board was not convinced that an accident occurred as Claimant alleged. There was no surveillance camera at the side door that could show whether Claimant’s alleged fall occurred there. Security footage of the back dock did not show Claimant falling there. The incident report and Claimant’s medical records support the assertion that Claimant initially reported falling on the back dock. “The Board does not know whether Claimant was aware that there was surveillance of the back door but not the side door.” However, the Board noted that Claimant could have been inclined to change the fall location because footage from the back door did not show him falling there. When Claimant entered the building through the back door, he walked ‘slowly and gingerly.’ “Claimant contended he walked in this manner because the steps to the back door were slippery and icy.” However, surveillance footage also showed Claimant walking awkwardly throughout the school building, where the ground was not slippery or icy. This fact supported the inference that Claimant incurred an earlier injury which caused him to walk in a careful, awkward manner.

Should you have any questions regarding this Decision, please contact Greg Skolnik, or any other attorney in our Workers’ Compensation Department.

Knox v. Delaware, IAB Hrg. No. 1508168 (June 3, 2022).

LITIGATION LAW UPDATE

Be Careful What You Ask For – Landlord’s Motion for Summary Judgment Denied and Court Indicates Tenant May Have an Additional Ground for Recovery

Delaware Superior Court Judge Scott denied Landlord defendant’s Motion for Summary Judgment, finding that the release signed by Tenant plaintiff violated the Residential Landlord Tenant Code. Section 5301(a)(3) of Title 25 of the Delaware Code prohibits landlords from requiring a tenant to limit its liability against, or otherwise indemnify, a landlord. Notwithstanding this provision, and in conjunction with a construction and repaving project at the residential complex, Landlord and Tenant entered into a construction addendum and general release protecting Landlord from “all loss or damage to Tenant’s person” caused by Landlord but absent gross negligence or willful misconduct.

During the construction project, heavy rain reportedly caused flooding in the parking lot and allegedly caused Tenant to trip over a raised, but less visible, sewer cover. Landlord filed this Motion for Summary Judgment arguing that Tenant executed the construction addendum, thus expressly assuming the risk of injury and further releasing Landlord from negligence related to the construction. Tenant argued, and the Court agreed, that the release was unenforceable under Delaware’s Residential Landlord-Tenant Code. Interestingly, the Court went on to note that “if a landlord attempts to enforce a provision that he knows violates Section 5301(a), the tenant is entitled to bring an action to recover three months’ rent and the costs of the suite, excluding attorney’s fees.”

Having found the release unenforceable, the Court determined that the issue of Landlord’s ultimate liability was a question of material fact for the jury and Summary Judgment was denied.

Mary E. Murphy v. Carillon Woods, LLC and Atlantic Management, LLC, C.A. No. N21C-04-024 CLS (May 16, 2022)

EMPLOYMENT LAW

Defendant Beats Plaintiff’s “Direct Evidence” Claim of Age Discrimination

On February 28, 2018, the Plaintiff was terminated from his employment at the age of 73 years old. Plaintiff was part owner of Defendant’s company and entered into a three-year employment contract wherein the Plaintiff would continue to work for the defendant as President. As part of Defendant’s secession plan, the role of President transitioned from Plaintiff to his son. Thereafter, Defendant changed Plaintiff’s job description from President to Technical Advisor to the President. After Plaintiff’s three-year contract expired, he continued to work as a technical advisor. In April of 2017, the Plaintiff informed the Defendant that he wished to continue to work, and he asked whether his age was a factor in his continued employment. Defendant’s Chief Operating Officer (“COO”) responded that “all companies need new blood.” However, the COO told the plaintiff that he could continue to be employed as long as he was healthy and preforming. Thereafter, the Plaintiff entered into a two-year contract extension with the Defendant.

In January of 2018, the COO informed the Plaintiff that he was terminated due to an incident involving a former coworker. Around the time of Plaintiff’s termination, Defendant hired a 39-year-old male who Plaintiff alleges was hired to replace the Plaintiff. However, Plaintiff testified in his deposition that that individual did not replace him. Plaintiff alleges that he was healthy, performed well, and was an asset to Defendant at all relevant times and Defendant’s comments that the company needed “new blood” and “new ideas” are evidence that Defendants committed age discrimination. Plaintiff filed a complaint in a District Court and the defendant filed a Motion for Summary Judgment.

In evaluating whether there is direct evidence upon which the trier of fact could reasonably find that the Plaintiff was terminated from employment on the basis of his age, the court applies the test set forth in Prince Waterhouse, which states that “once direct evidence of age discrimination is presented the ‘burden of persuasion on the issue of causation shifts, and the employer must prove that it would have fired the plaintiff even if it had not considered … [his] age.’” The Court stated that direct evidence of age discrimination is “evidence efficient to allow the jury to find that the decision-makers placed a substantial negative reliance on [the plaintiff’s age] in reaching their decision.” Plaintiff “must produce evidence of discriminatory attitudes about age that were causally related to the decision to fire” him.

In response to Plaintiff’s direct evidence, which consisted of various statements from the Defendant relating to age and having new blood in the company, Defendant argues that such statements do not on their face relate to age and that the statements are instead stray, ambiguous, and general remarks.

The Court concluded that the COO’s statements were stray remarks entitled to minimal weight. The Court found that the statements, such as “new blood” were made at least ten months prior to the Plaintiff’s termination and that the comment was followed the next day by an offer to the Plaintiff of a two-year contract extending his employment with the Defendant. Based on these reasons, the Court concluded that the offer is inconsistent with the plan to terminate Plaintiff based on his age. Therefore, defendant’s Motion for Summary Judgment was granted.

Should you have any questions regarding this decision, or any liability law question, please contact any attorney in our liability department.

Bianchi v. B & G Machine, Inc., 2022 U.S. Dist. (D. Del. June 8, 2022)., unreported