Landlord & Employer Not Liable for Flaming Pig Burn

In MAGDALENA JAROSZ v. G&B LLC d/b/a THE ROYAL MANOR,  and KIDA, LLC, the Appellate Division affirmed Judge Menelaos W. Toskos’s grant of summary judgment, which dismissed plaintiff’s personal injury complaint.

While employed at the Royal Manor as a waitress, plaintiff assisted another server in wheeling out a flaming pig on a serving cart into the banquet area during a wedding reception. The other server, who was inexperienced and lacked proper training, periodically poured grain alcohol onto the pig to keep the flame going. Eventually, the flame erupted, causing severe burns on plaintiff’s right hand, forearm, and right abdomen.

Kida, LLC is the owner/landlord of the Garfield property where G&B, as tenant, operates the Royal Manor. Defendants shared a common principal, Dariusz Kida, who maintained an office at the Royal Manor, was involved in the restaurant’s day-to-day operations, and was aware that there was going to be a presentation involving a flaming pig during the wedding reception.

Plaintiff commenced a lawsuit in the Law Division for her personal injuries. Plaintiff alleged that her employer, G&B, acted in a manner that it knew was certain and/or substantially certain to result in harm to her; in other words, she tried to invoke the “intentional wrong” exception to the Workers’ Compensation bar. Plaintiff further alleged that the landlord, Kida, breached a duty to her and others to keep the property in a reasonably safe condition.

Holding One: Intentional Wrong Exception Does Not Apply

It is well established that, under the Workers’ Compensation Act, an employer is not otherwise liable for a workplace injury except in the event of an intentional wrong because New Jersey’s Workers’ Compensation Act is “designed to establish a no fault system of compensation for workers who are injured or contract a disease in the course of employment.” In other words, an employee trades his right to sue for immediate Workers’ Compensation benefits. To be entitled to those benefits, the employee must merely show that his injuries arose out of the course of his employment.

Applying decades of well-established case law, the Appellate Division agreed with Judge Toskos that there was no evidence that the employer knowingly exposed plaintiff to a virtual certainty of harm. There were no safety violations that the employer refused to remedy, and certainly none that related to flambéing activities at the Royal Manor. In fact, that particular flaming-pig presentation had not occurred before, and so there was no certainty that an injury was going to occur.

The Appellate Division also agreed with Judge Toskos that an employee getting burned was an expected risk of working in a restaurant. Accordingly, summary judgment was properly entered in favor of the employer.

Holding Two: Landlord Had No Duty to Protect Against the Flaming-Pig Injury

The Appellate Division also agreed with Judge Toskos that the landlord could not be liable under the facts presented. There was no proof that the landlord controlled the restaurant’s operations or had a duty to do so. The Appellate Division found that the flambéing activity at issue here was exclusively within the control of the restaurant, not the landlord, even if the principal of both businesses, Dariusz Kida, was on the premises at the time of the injury.

The presence of the principal was not enough to impose liability on the landlord because there was no evidence that the principal was present for any purpose other than his day-to-day supervision of G&B’s restaurant business. Absent a basis to pierce the corporate veil, the Judge Toskos correctly noted that Kida and G&B were separate entities, and the fact that they had a common principal was insufficient to confer liability on the landlord for the actions of its commercial tenant.

Summary judgment in favor of the landlord was especially appropriate because there was no showing that the flambéing activities were unusual or presented a problem in the past.

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