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Staub v. Toy Factory3/23/2000
donment of the right to complain, but rather is better judged by its reasonableness, that is, by negligence principles. Fish, 463 A.2d at 1049 (emphasis added), citing Meistrich v. Casino Arena Attractions, Inc., 31 N.J. 44, 155 A.2d 90 (1959) (other citation omitted). Accord Howell, supra at n.7, 620 A.2d at 1110 n.7 (plurality) (quoting Fish with approval).
16 Based on the foregoing analysis, we conclude that in a negligence context, where an employee is required to encounter a risk in order to perform his job , reasonable minds could disagree as to whether the employee "deliberately and with awareness of specific risks inherent in the activity nonetheless engaged in the activity that produced the injury ." Howell, supra at , 620 A.2d at 1113 (plurality). Thus the employee's "conduct is better judged by its reasonableness, that is, by negligence principles." Fish, 463 A.2d at 1049. A trial court should not, therefore, decide the issue as one of duty or lack thereof; instead, the issue should go to the jury as one of comparative negligence. As noted in the comment to the Restatement discussing implied assumption of risk, "Since interpretation of conduct is seldom so clearly indicated that reasonable men could not differ as to the conclusion, it is ordinarily a question for the jury whether what the plaintiff has done is a manifestation of willingness to accept the risk." Restatement (Second) of Torts ยง 496C cmt. h (1965).
17 We find support for our conclusion in an opinion filed by a recent panel of this court, holding that in a products liability context, assumption of risk is no longer available as an affirmative defense in an employment situation because the employee cannot voluntarily assume the risk where in doing his job he is required to use equipment furnished by his employer. Jara, 718 A.2d at 795. We note also the apparent reluctance of other panels of this court to imply assumption of risk in cases involving work-related injuries. See Barrett, 685 A.2d at 131-132 (negligence action) (trial court improperly granted summary judgment based on assumption of risk where plaintiff was injured while walking on stilts to install insulation and slipped on a piece of siding left behind by another subcontractor, where plaintiff attempted to clear a path in which to work before he began, because plaintiff was not subjectively aware of the risk); Long, 662 A.2d at 1089 (products liability action) (trial court improperly granted summary judgment based on assumption of risk where plaintiff was injured when he slipped on hydraulic fluid while trying to dodge a falling hydraulic lift under which he was working; question existed as to whether plaintiff voluntarily assumed the risk when he used the lift because he needed it to perform his job; question also existed as to whether the risk of the lift falling under the particular circumstances was known and obvious); Handschuh, 574 A.2d at 694-695 (negligence action) (trial court properly refused to charge the jury on assumption of risk where decedent kept working in trench that ultimately caved in despite his awareness of its delicate nature and prior minor erosions that occurred while he was working).
18 We also note that none of the recent cases decided by the supreme court addressing assumption of risk involved employees who encountered a risk during the course of their employment; rather, the cases all involved plaintiffs engaged in non-employment related activities. See Howell, supra (plurality) (plaintiff assumed the risk where he was injured while participating in lighting a cannon to set off fireworks); Carrender, supra (plaintiff assumed the risk where she was injured when she slipped on a patch of ice next to her car in parking lo
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