Employers Must Study the Circumstances Carefully When Using Intoxication Defense

11.28.16

In a recent decision, the Appellate Court affirmed the Trial Court's decision that an employer failed to prove that the employee's intoxication was the sole cause of the worker's accident and in spite of the employee's admission of alcohol consumption, he was still able to collect benefits.

In Antonio Diaz v. National Retail Transportation. Inc., the employee was injured at work when he attempted to move a heavy lift that fell on him, causing injuries. This lift, referred to as a jack, weighed several hundred pounds and stood vertical and had two tires that could assist in moving it. Following this accident, the employer denied all benefits, based upon the employee's admission that on the date of the accident he drank two eight-ounce glasses consisting of half whiskey and half ice and water. Shortly after the accident, the employee's blood alcohol level was read at .173 percent. The employer presented the expert testimony of Dr. Gary Lage, a toxicology expert, and Walter Wysowaty, a forensic civil engineer. Both testified that as a result of the employee's intoxication he was unable to properly maneuver the lift, causing it to fall upon him.

Although the employee testified at trial that he did in fact consume the alcoholic beverages, he contended that the lift had a flat tire and when attempting to maneuver the lift it tilted and fell. On cross examination, the civil engineer said that with a flat tire when pulling the lift backwards, it could tilt and possibly fall. Based upon the foregoing testimony, the Judge found the employer's expert's testimony not credible and ruled in favored of the employee awarding all benefits.

On appeal, the employer argued that the greater weight of the evidence established that the worker's injury was produced solely as a result of his intoxication. The Appellate Court disagreed, noting that there was substantial credible evidence that the flat tire may also have caused the lift to fall and therefore intoxication was not established to be the sole cause of the accident.

N.J.S.A. 30:15-7 prohibits recovery when intoxication "is the natural and proximate cause of injury or death." The Courts have interpreted the defense of intoxication to mean that the employee's intoxication must "be the sole cause" of the accident. Thus, if any other circumstances could contribute to the happening of the accident, intoxication is not a viable defense.

Comment: In general, employers must bear in mind the fact that the intoxication defense is one of the most difficult defenses to successfully argue at trial, as there are usually other factors that contribute to the happening of the accident, besides intoxication. Thus, we suggest looking at the totality of the circumstances when formulating a defense strategy. 

Media Contacts

Sara L. De Long
267.295.3377
sdelong@wglaw.com

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