Smoke Break Victim's Family Awarded Damages

February 12, 2003 ( - Two adult children of a smoker run over by a truck while on a smoke break at her Pennsylvania company's freight terminal have been awarded $2.7 million.

PJAX Freight System’s designated smoking area, located outside depot gates in the employee parking lot, posed an unreasonable access risk.   This perilous perch for a quick smoke thus created an unnecessary hazard for company night-shift billing clerk Kathleen Shaw, 55, argued Alan Perer, the attorney for the estate of Shaw, according a report by the National Law Journal.

“Lighting was terrible in that area where people had to walk the 100 yards across an open terminal yard that operated 24 hours a day.   It was a free-for-all. Truck drivers had to stop to avoid pedestrians; pedestrians had to scramble around trucks. Complaints had been made to supervisors, some of whom were smokers, too. It was an accident waiting to happen. That night it was raining,” Perer argued to the jury in Shaw v. Northridge Enterprises.

Still, the $2.7 million judgment, awarded to Shaw’s 34-year-old firefighter son and her 32-year-old daughter, was assessed solely against the property owner.   The judge dismissed employer PJAX, and the driver of the truck, once they were found exempt from suit under Pennsylvania’s workers’ compensation law.  

Award damages were for economic loss of both children, as well as loss of guidance, tutelage and advice to Shaw’s daughter.   Perer contended the award was reasonable for the adult children, “a lot of times for an adult child who’s still close to their mother, you still turn to her for advice about life’s decisions.   She and her daughter, who is a single mother, talked all the time. Her death left a great void and you have to think the jury recognized that because it’s a reality. It was a fair result.”

Hazardous To Her Health?

The defense contended there was a safe alternative to the shortcut Shaw and other took for their breaks.   The defendants’ attorney, Joseph Bosick, also disputes the amount of the verdict and that a nonpossessing owner of property had been held liable for its lessee’s activities.

Going forward, the defense intends to request a judgment notwithstanding the verdict. Failing that, the next step is for the defense to ask the judge to grant a new trial or to reduce damages substantially.   The award, Bosick contends was unreasonable, “the two children are adults who did not live with their mother and most of the award was earmarked for lack of future nurturing.   The judge dismissed the trucking company and the truck driver, but refused to tell the jury that he’d done it.”