On appeal from the Superior Court of New Jersey, Law Division, Atlantic County.
Approved for Publication December 15, 1997.
Before Judges Shebell, D'Annunzio and A.a. Rodriguez. The opinion of the court was delivered by Shebell, P.j.a.d.
The opinion of the court was delivered by: Shebell
The opinion of the court was delivered by
On February 21, 1994, plaintiff, Sharon McGovern, was employed as a Security Supervisor by defendant, Resorts International Hotel, Inc. ("Resorts"), when at approximately 10:30 a.m. she was shot attempting to prevent the robbery of money on a cart she was escorting across the public gaming floor to an armored car. Resorts' money transfer procedure was as follows:
the supervisor would enter the [money] cage and then in company with the cage supervisor bring the deposit out to the main floor where it would be escorted out into the armored car bay.
The safety of this procedure came into question subsequent to Resorts' change over to a twenty-four (24) hour casino operation. Before the change, the gaming money would be transferred during closing hours. After the change, members of the public were present in the area where the money was transferred. Despite complaints from Resorts personnel over the money transfer procedure, Resorts continued to order its security personnel to perform this operation in the presence of the public.
On February 5, 1996, plaintiff filed a Law Division action against Resorts and the other named defendants, alleging that
with full knowledge of the consequences and dangers inherent in the security procedures, devices and methods they instituted for the transportation of Casino money/gambling revenue from Casino collection areas, did by design, resolve, determination and thereby, with intent and/or substantial certainty expose its' [sic] employees, including Plaintiff, to a known hazardous condition and life threatening situations, and acted with the full knowledge, intent and substantial certainty that an employee, like plaintiff, Sharon McGovern, would be severely injured.
Plaintiff thereby contended that Resorts' conduct fell within the "intentional wrong" exception to the exclusive remedy provision of the New Jersey Workers Compensation Act, N.J.S.A. 34:15-8, which provides that:
If an injury or death is compensable under this article, a person shall not be liable to anyone at common law or otherwise on account of such injury or death for any act or omission occurring while such person was in the same employ as the person injured or killed, except for intentional wrong.
[N.J.S.A. 34:15-8 (emphasis added).]
In her June 27, 1996 deposition, plaintiff stated that she expressed and also heard complaints that Resorts' money transfer procedure was "an accident waiting to happen." In his October 1, 1996 deposition, Director of Resorts' Security, Marion Howard, stated that he expressed concerns to Executive Vice President of Finance, and later, Chief Operating Officer of Resorts, John Spina, regarding the way Resorts handled their armored car transfer, and how urgent he felt it was to change the procedures. Howard believed there was a "high probability" that an incident would take place if Resorts continued the procedure without modification. He met with Spina to discuss his concerns and informed Spina that Resorts was one of only two remaining casinos that handled the money transfer in this fashion. Howard recommended to the Division of Gaming Enforcement that Resorts' procedures be changed, and informed Spina of his recommendation. It appears that the $50,000 ...