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WELCH v. SCHNEIDER NATL. BULK CARRIERS

December 28, 1987

David Welch and Christine Welch, Plaintiffs,
v.
Schneider National Bulk Carriers and Gateway Terminal Services Corp., Defendants



The opinion of the court was delivered by: COHEN

 This personal injury negligence action is presently before the Court on motion by defendant, Gateway Terminal Services Corporation ("Gateway"), to dismiss the complaint of plaintiffs, David and Christine Welch, and the cross-claim of co-defendant, Schneider National Bulk Carriers ("Schneider"), for failure to state claims upon which relief can be granted. For the reasons that follow, Counts I, III, V, and VI of plaintiffs' complaint shall be dismissed *fn1" and Schneider's cross-claim against Gateway for indemnification shall also be dismissed.

 The plaintiff, *fn2" David Welch, a Pennsylvania resident, instituted this diversity action against the defendants *fn3" to recover for personal injuries suffered while plaintiff performed duties within the scope of his employment with his employer Gateway. On or about June 7, 1985, plaintiff was engaged in cleaning tanker-trailers at Gateway's installation plant in Pedricktown, Salem County, New Jersey. The plaintiff alleges that one such tanker-trailer, owned and operated by Schneider, failed to contain any warnings or markings indicating that it might pose a threat or danger to one in the plaintiff's position. While plaintiff cleaned that tanker with an unmarked and unlabeled cleaning solvent, provided by the defendant Gateway, an explosion occurred which threw plaintiff into the air and onto the pavement causing bodily injury including his body being set on fire.

 Plaintiff's complaint avers that defendant Schneider's engagement in ultra-hazardous activity renders it absolutely liable for all injuries resulting from that activity. In addition, it alleges that defendant Schneider was negligent in failing to warn plaintiff of the dangerous substances contained within its tanker-trailer. The complaint also alleges that the defendants violated The Worker and Community Right to Know Act ("Right to Know Act"), N.J.S.A. 34:5A-1 et seq., and The Toxic Substances and Control Act ("TSCA"), 15 U.S.C.A. § 2601 et seq.

 In support of its motion to dismiss, defendant Gateway urges that under New Jersey law plaintiff's sole and exclusive remedy against his employer for injuries suffered while working within the scope of his employment is provided by the Workers' Compensation Act, N.J.S.A. 34:15-1 et seq. Gateway also maintains plaintiff has failed to demonstrate that his accident falls within the "intentional wrong" exception to the exclusive remedy provided by the Act. Moreover, Gateway contends that neither the state Right to Know Act nor the federal TSCA afford plaintiff a private right of action for money damages for personal injury. Gateway also argues that the primary provisions of the Right to Know Act were not in effect on the date of the accident, June 7, 1985.

 The primary issues to be resolved in the instant matter are whether either the Right to Know Act and/or TSCA provide plaintiff with a private cause of action against an employer for money damages for personal injury. This court's role is to determine the intent of both the state and federal legislatures with regard to these issues.

 The New Jersey Legislature enacted the Right to Know Act in response to the growing threat to the public health, safety, and welfare posed by the "proliferation of hazardous substances in the environment." N.J.S.A. 34:5A-2. The Act requires employers to provide workers and the community in general with information regarding toxic and harmful substances in the environment. *fn4" The legislature concluded that workers and citizens, armed with such information, will be able to make informed decisions about how best to protect themselves from harmful substances. Primarily, the Act is designed to enforce the citizens' right to know. This legislative purpose is expressed in section two of the Act:

 
The Legislature therefore determines that it is in the public interest to establish a comprehensive program for the disclosure of information about hazardous substances in the workplace and the community, and to provide a procedure whereby residents of this state may gain access to this information. Id.

 The Right to Know Act contemplates that various state agencies will ensure employer compliance with its enforcement and regulatory provisions. The Departments of Environmental Protection and Health are authorized to issue orders to employers violating the Act to compel compliance, N.J.S.A. 34:5A-31(b), to commence civil actions in Superior Court, N.J.S.A. 34:5A-31(c), to impose civil administrative penalties, N.J.S.A. 34:5A-31(d), and to impose additional penalties on those who willfully and knowingly violate the Act, N.J.S.A. 34:5A-31(e). *fn5"

 To further enforcement of the workers' and communities' right to know, the Right to Know Act permits private citizens to bring "civil actions" to compel employers' compliance with the Act's provisions. The Act provides that:

 
any person may bring a civil action in law or equity on his own behalf against any employer for a violation of any provision of this act or any rule and regulation promulgated pursuant thereto or against the Department of Environmental Protection or the Department of Health for failure to enforce the provisions of this act or any rule or regulation promulgated pursuant thereto. The Superior Court shall have jurisdiction over these actions. The court may award, whenever it deems appropriate, costs of litigation, including reasonable attorney and expert witness fees. N.J.S.A. 34:5A-23 (emphasis added).

 Plaintiff contends that this section of the Act gives him the right to sue his employer, Gateway, and Schneider in tort for money damages for his personal injuries. *fn6" Plaintiff argues that the Legislature would not have drafted the statute to allow "person[s]" to bring "civil action[s] in law or equity" if it merely intended to permit only injunctive remedies to compel compliance with the Act; specifically, "if the Legislature had intended to grant only the right to sue for a mandatory injunction to compel compliance, or for an injunction to prohibit a violation of the Act (both suits in equity), why would the Legislature confer the right to bring a civil action in law ?" Supplemental brief for plaintiff at 4.

 In response, defendant Gateway stresses that the Right to Know Act was amended in 1985 to allow employers until October 30, 1985 to comply with its primary provisions. Brief for defendant at 4; see supra n.4. Thus, Gateway argues that it was not subject to the Right to Know Act's provisions on June 7, 1985, the date of plaintiff's accident. Moreover, and perhaps more importantly, Gateway maintains that the Right to Know Act clearly does not grant plaintiff a private right of action against an employer for personal injuries. Brief for defendant at 5-7.

 As the New Jersey courts have not yet addressed this issue, it is a case of first impression. This court holds that the Right to Know Act does not afford an employee a private right of action to sue any employer in tort for money damages for personal injuries sustained during the course of his employment. A careful reading of the entire statute leads to the conclusion that it was not intended to create such a private right of action. The statute is regulatory in nature, designed to monitor harmful substances in the environment and provide the public with information about these threats to their health.

 This court is not persuaded by plaintiff's argument that the phrase used in N.J.S.A. 34:5A-23, providing for a civil action "in law," evinces the Legislature's intent to create a private cause of action by an employee against any employer for injuries sustained during the course of his employment. It is a general principle of statutory construction that a phrase must be ...


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