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What's Hot in Workers' Comp

Appellate Division Affirms Dismissal of Construction Zone Death Suit Against employer and Engineering Firms Based on Workers’ Compensation Bar and Failure to Serve Affidavits of Merit.

Estate of Mike Alexander, Deceased, et al. v. Northeast Sweepers, et al., No. A-1486-23 (June 19, 2025)

August 1, 2025

by Kiara K. Hartwell

On July 11, 2014, Michael Alexander was struck and killed by a sweeper truck while working in an active construction zone on the New Jersey Turnpike. Northeast Sweepers owned the truck, which was driven by Christopher Hackett. Crisdel Group, Inc. was the decedent’s employer and was hired as the general contractor. HAKS Engineers, Architects and Land Surveyors, P.C. was retained by New Jersey Transit Authority to provide “professional services” for the resurfacing project, including supervision to ensure compliance. John Schweppenheiser, a HAKS employee and licensed professional engineer, was the project manager. HAKS then subcontracted the construction inspection services to Johnson, Mirmiran & Thompson, Inc. (JMT). Lawrence Fink, a JMT employee and licensed professional engineer, was the supervisor. 

Christopher Hackett drove his sweeper around a milling machine and struck Alexander, who was taken to a hospital and passed away approximately a month later. While it was Crisdel’s practice to assign a dump truck to each sweeper truck, there was none near Hackett’s sweeper at the time of the accident. After the accident, OSHA cited Crisdel for violations; failure to provide a place of employment free from recognized hazards and to establish a pre-planned traffic pattern. It was noted to be a serious violation, but not willful or repeated. 

In October 2014, the plaintiffs filed a complaint, which they amended in January 2016 to add claims against HAKS and JMT. In the amended complaint, the plaintiffs alleged intentional wrongs, noting that HAKS and JMT were responsible for supervision of the site and that they had negligently supervised the project. Because Alexander and his estate received workers’ compensation benefits, Crisdel’s answer asserted the affirmative defense that the plaintiffs’ claims were barred by the Workers’ Compensation Act. HAKS’ answer demanded compliance with the affidavit of merit statute, and JMT’s answer made no reference, but did assert a general defense of failure to state a claim. 

In June 2017, HAKS and JMT moved to dismiss the claims for failure to serve affidavits of merit. After oral arguments, the trial court issued orders dismissing the claims, noting the negligence was in their professional capacities as engineers, therefore, affidavits of merit were needed. The plaintiffs then filed a motion for reconsideration and submitted two affidavits from professional engineers, who certified that the work HAKS and JMT performed only involved supervision, not professional engineering services. The trial court denied the motion for reconsideration in September 2017. 

After the Appellate Division granted leave to appeal, the orders dismissing the claims against HAKS and JMT were reversed for a more complete record on whether the claims required the affidavit of merit requirement. On remand, additional expert discovery was performed, and all parties produced more expert reports. In April 2018, Crisdel moved for summary judgment, and after oral arguments, the trial court granted summary judgment as the plaintiffs failed to produce evidence that Crisdel committed an intentional wrong as this was the type of accident that occurred in constructions areas. 

In May 2019, HAKS and JMT moved for summary judgment, arguing the plaintiffs’ claims involved professional engineering service malpractice claims. The trial court agreed and granted summary judgment, noting the expert reports and deposition testimony revealed the duties of HAKS and JMT were within the practice of engineering. As such, the plaintiffs needed to submit an affidavit of merit and failure to do so required dismissal of their claims. 

The other defendants were all dismissed at various times. In December 2023, the plaintiffs resolved their claims against Northeast Sweepers and Hackett. The plaintiffs then appealed the June 22, 2018, order granting summary judgment to Crisdel and the July 26, 2019, orders granting summary judgment to JAKS and JMT.

The Appellate Division reviewed, under the de novo standard, and delved into the Workers’ Compensation Act as well as case law regarding intentional wrongs. While the plaintiffs identified six areas (work lighting, audible backup alarms, properly functioning mirrors, dedicated dump trucks, use of spotters and written traffic control plan) that were allegedly known and ignored by Crisdel, the Appellate Division found none of them were evidence of an intentional wrong within the meaning of the Workers’ Compensation Act. The Appellate Division also noted the OSHA violations were only “serious” and not “willful.” As such, the Appellate Division affirmed the grant of summary judgment to Cristel.

As for the summary judgment granted for HAKS and JMT, the Appellate Division reviewed the case law for a claim against a licensed professional covered by the affidavit of merit statute. The Appellate Division noted it was undisputed that both defendants were engineering and architectural companies and that HAKS was retained by New Jersey Transit Authority for professional engineering services. HAKS then retained JMT, and under the terms of the subcontract, all work performed by JMT was required to be done under the “direct supervision” of “licensed professional” engineers. Given the undisputed evidence showed HAKS and JMT were providing professional engineering services and the plaintiffs failed to timely serve affidavits of merit, the Appellate Division affirmed the grant of summary judgment to HAKS and JMT. 


 

What’s Hot in Workers’ Comp, Vol. 29, No. 8, August 2025, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2025 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.

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Two Tracks, No Preclusion: Ohio Supreme Court Preserves Separate Damages Claims After Chapter 2506 Appeals

The Supreme Court of Ohio has clarified that an administrative appeal under Ohio Revised Code Chapter 2506 does not bar a separate action for damages and declaratory relief that could not have been pursued in the administrative appeal. The Ohio Supreme Court considered Sheetz, Inc. v. Centerville (2026-Ohio-3531) as a result of a certified question from the Southern District of Ohio. The question was whether Sheetz, the gas station/convenience store brand, was barred from seeking damages in a separate action since damages were not sought in their administrative appeal. Ultimately, the Ohio Supreme Court ruled that res judicata does not bar a separate action for damages after ruling on an administrative appeal because R.C. Chapter 2506 is limited to judicial review and cannot grant affirmative relief. The case arose after Centerville’s city council rejected a site plan proposed by Sheetz, Inc. that had received unanimous approval from the City’s planning commission. Sheetz filed an administrative appeal pursuant to R.C. 2506 in the Montgomery County Court of Common Pleas, and two months later filed a complaint for damages and declaratory relief under 42 USC § 1983 as a takings action with the city, city council, and other objectors as improper takings and a violation of due process, as well as interference with business and contractual relationship. The city and city council removed the § 1983 action for damages to federal court. Montgomery County Court of Common Pleas reversed the city council’s denial, and allowed the Sheetz project to move forward. Upon that ruling, the federal court issued a show-cause order questioning whether the § 1983 action was barred by the doctrine of res judicata via claim preclusion (which includes all theories of recovery).  Sheetz argued that Ohio courts of common pleas do not have authority to award damages or declaratory relief as party of the R.C. Ch. 2506 appeal, therefore res judicata could not be triggered to apply to the § 1983 action. Additionally, Sheetz moved to certify the issue to the Ohio Supreme Court, citing differing results between the second and sixth districts on this same issue. Centerville approached the question, not from a claim preclusion standpoint, but from the holding in Grava v. Parkman, Twp which states that a final judgment rendered on the merits bars all subsequent action based on the same transaction or occurrence.  In yet another approach, an objector argued that claim preclusion was satisfied because Sheetz could have raised its damages claims in the administrative appeal – Sheetz disagrees. In their analysis, the Supreme Court of Ohio broke down the elements of a claim preclusion analysis: 1) a prior final, valid decision on the merits by a court of competent jurisdiction; (2) a second action involving the same parties, or their privies, as the first; (3) a second action raising claims that were or could have been litigated in the first action; and (4) a second action arising out of the transaction or occurrence that was the subject matter of the previous action. The Court held that R.C. Ch. 2506 does not permit a party to argue damages as R.C. Ch. 2506 limits the common pleas jurisdiction as if it were sitting on appeal, and therefore can only affirm, reverse, vacate, or modify the appealed order, or can remand the case to the administrative body. Further, the Court held that Grava’s conclusion that a final judgment precludes additional litigation for different relief is inapplicable under this fact pattern because it was meant only to apply to those matters in which the plaintiff brings the exact same case twice, but for new relief. The Court found Grava was inapplicable because Sheetz could have requested damages or declaratory relief in the R.C. 2506 appeal. Therefore, Grava would be nothing more than dicta if it even did apply. Going further, the Ohio Supreme Court disavowed Sixth Circuit precedent which, in reliance on Grava and other district court decisions, permitted an owner to seeking relief under 42 U.S.C. § 1983 alongside an administrative appeal. See Moore v Hiram Twp., 988 F.3d 353 (6th Cir.2021). The Ohio Supreme Court found that the Sixth Circuit had disregarded a critical decision in Community Concerned Citizens, Inc. v. Union Twp. Bd. of Zoning Appeals, 1993-Ohio-115, which clearly held that a R.C. Ch. 2506 appeal cannot be combined with a complaint seeking other claims for relief. Id. at ¶ 11. To that end, the Ohio Supreme Court has determined that the decisions Moore relied on (outside of Grava) are no longer good law, and that Moore was wrongly decided. The decision draws a clear procedural boundary: Chapter 2506 provides judicial review of an administrative decision, not a forum for independent claims seeking affirmative relief. Although Grava may place claims arising from a single transaction within the potential scope of claim preclusion, those claims are not barred unless the complete claim-preclusion test is satisfied. Because Sheetz could not have pursued damages or declaratory relief in its Chapter 2506 appeal, the separate action was not precluded. The remaining question for practitioners looking to apply or defend against this exception is when does the statute of limitations begin to run on damages and declaratory relief claims related to an administrative decision on appeal? A takings action in federal court has a 2-year statute of limitations, or as a state claim, 4 years (like the other tortious claims raised therein). Correlating this case with others, an administrative appeal will not likely toll the statute of limitations on claims based on a final decision by a municipal authority. Therefore, practitioners should look for these cases to be brought simultaneously.

Thought Leadership

Pennsylvania Supreme Court to Review Whether Legal Malpractice Claims May Be Recast as Breach of Contract Claims

The Pennsylvania Supreme Court recently granted allowance of appeal to consider whether a plaintiff may pursue a breach of contract claim against an attorney based on allegations that the attorney failed to provide competent legal services. The issue is significant in professional liability litigation because it concerns whether a plaintiff may avoid the statute of limitations applicable to professional negligence claims by characterizing the alleged misconduct as a breach of contract. Antoine Poteat retained attorneys Gary Asteak and Nino V. Tinari to represent him in a criminal matter. After his conviction was subsequently overturned through a Post Conviction Relief Act proceeding, Poteat filed suit against his former attorneys alleging that they breached their retainer agreements by failing to provide competent legal services. The attorneys argued that the claims sounded in professional negligence, rather than breach of contract, and were therefore time-barred. The trial court dismissed Poteat’s complaint, but the Superior Court, sitting en banc, reversed. The Superior Court held that the gist-of-the-action doctrine did not bar Poteat’s breach of contract claim because the alleged failure to provide competent legal services could constitute a breach of the parties’ agreement. The Court further held that a legal-services agreement contains an implied duty requiring an attorney to provide competent legal services, even where the agreement does not contain an express provision requiring such services. The Pennsylvania Supreme Court granted review in July 2026 and will consider whether the Superior Court’s decision conflicts with Pennsylvania precedent distinguishing contract and tort claims, including Bruno v. Erie Insurance Co. The Supreme Court will also address whether a plaintiff may maintain a breach of contract claim based on an implied duty to provide competent legal services without identifying a specific contractual provision that was breached. The Supreme Court’s decision could have significant implications for professional liability litigation in Pennsylvania, particularly where plaintiffs seek to characterize claims arising from alleged professional negligence as contractual claims.

Thought Leadership

The Search-Incident-to-Arrest Doctrine Does Not License Strip Searches

In Beatty v. Gardner, No. 25-2860 (3d Cir. Sept. 16, 2026), Kyle Beatty sued police officers Clinton Gardner and Calvin Irvin under 42 U.S.C. § 1983 after they stopped, arrested, and searched him three times during a drug investigation in Williamsport, Pennsylvania. The officers initially smelled marijuana coming from the car in which Beatty was sitting and observed marijuana residue, giving them probable cause to arrest him. Beatty consented to the first pat-down, and the second search was conducted incident to his lawful arrest; neither search uncovered weapons or contraband. The officers then transported Beatty to the police station solely to strip-search him, but the strip search also revealed nothing. The District Court granted the officers summary judgment, concluding that the initial stop, arrest, and first two searches were reasonable and that qualified immunity protected the officers from liability for the strip search. The Third Circuit affirmed, but held that the strip search itself violated the Fourth Amendment. The court concluded that the search-incident-to-arrest doctrine does not automatically permit officers to strip-search an arrestee outside the jail or prison setting. Because strip searches are highly intrusive and the traditional justifications for searches incident to arrest (officer safety and preservation of evidence) did not justify the search of Beatty, the officers generally needed either the arrestee’s consent, exigent circumstances, or a warrant supported by probable cause to believe that a search beneath the clothing would reveal weapons, contraband, or evidence. Here, the officers had none of those justifications. Nevertheless, the court held that qualified immunity barred damages liability because, at the time of the search, the right against a warrantless strip search of an arrestee outside the institutional setting was not clearly established by Supreme Court or Third Circuit precedent. The court likewise upheld qualified immunity on Beatty’s First Amendment retaliation claim and affirmed summary judgment for the officers.