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Mabee v. Borden

June 02, 1998

LEORA MABEE, PLAINTIFF-RESPONDENT,
V.
BORDEN, INC., DEFENDANT-APPELLANT,
AND
FIGGIE INTERNATIONAL, INC., FIGGIE PACKAGING SYSTEMS, INC., GEORGE J. MEYER MANUFACTURING CO. INC., MEYER WORLD PACKAGING MACHINERY, INC. AND ALPHA PACKING EQUIPMENT, INC., DEFENDANTS-RESPONDENTS,
AND
DEF CO., INC., R. PALMIERI ELECTRICAL CONTRACTORS, INC. OF LANDISVILLE, NJ, SAWYER ELECTRICAL CO. OF WILDWOOD, NJ; BERNAL MECHANICAL CONTRACTORS, INC. OF VINELAND, NJ, CARLSON ASSOCIATES, INC. OF MASSACHUSETTS, CARLSON MANAGEMENT, INC. OF MASSACHUSETTS, CARLSON PROCESSING, INC. OF MASSACHUSETTS, CARLSON MID- ATLANTIC, INC. OF PENNSYLVANIA, CARLSON HOLDINGS CORPORATION, AND SAE AMERICA MID-ATLANTIC, INC. OF HORSHAM, PENNSYLVANIA, DEFENDANTS.



On appeal from Superior Court of New Jersey, Law Division, Atlantic County.

Judges Havey, Landau and Collester.

The opinion of the court was delivered by: Havey, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 11, 1998

While employed by defendant Borden, Inc., plaintiff sustained a work-related injury to her hand when she attempted to clean a labeling machine, the Alfa Labeler. She instituted suit against Borden and defendants Figgie International, Inc., Figgie Packaging Systems, Inc., George J. Meyer Manufacturing Co., Inc., Meyer World Packaging Machinery, Inc. and Alpha Packing Equipment, Inc. (collectively referred to as Figgie), companies involved in the manufacturing and marketing of the Alfa Labeler. By leave granted, Borden appeals from the denial of its motion to dismiss plaintiff's complaint. It also appeals from summary judgment in plaintiff's favor determining that the "intentional wrong" exception to the exclusivity provision of the Workers' Compensation Act, N.J.S.A. 34:15-8, applied, thereby permitting plaintiff to sue Borden for her personal injuries. We affirm the denial of Borden's summary judgment motion, and reverse the summary judgment entered in plaintiff's favor.

The following facts are undisputed. In 1989, Borden, then located in Pine Point, Maine, purchased the Alfa Labeler to label its eight-ounce claim juice bottles. At that time Figgie offered Borden optional Plexiglas safety doors designed to prevent contact with moving parts of the machine. Borden declined the offer.

On June 29, 1990, a Borden employee, Michael Paskewicz, sustained severe injuries when his hand became entangled in the Alfa Labeler when he was cleaning excess glue from the bands of the machine while it was in operation. At the time, there was no safety device attached to the machine preventing access to the inner components of the machine.

Borden subsequently relocated to Cape May, New Jersey, moving all its labeling machinery, including the Alfa Labeler, to its new plant. There, a Borden engineer installed a "V" shaped guard, a metal plate placed in front of the "nip" point between the labeler's wheels to protect against hand injuries similar to the injury suffered by Paskewicz. On November 12, 1990, Figgie installed, at Borden's request, a Plexiglas safety enclosure with doors around the Alfa Labeler to protect employees against injury. At some point, the "V" shaped guard was unbolted and removed from the machine.

The purpose of the Plexiglas doors was to prevent access to the machine while the machine was operating. When the doors were opened, the machine automatically shut down. However, the Plexiglas doors interfered with routine maintenance. The Plexiglas enclosure required Borden mechanics to reach over the top of the enclosure by use of a ladder. A bypass switch was therefore installed, approximately one month after the Plexiglas enclosure was added to the machine. The bypass switch allowed mechanics to insert a key and turn the switch to "maintenance mode," providing access to the moving parts of the labeler.

Although the bypass switch was intended to provide maintenance personnel access to the machine, the evidentiary material presented suggests that the switch was also for the purpose of allowing operators easy access to the machine while in operation. This was necessary because the operators had continuous problems with excess glue accumulating between the machine's moving parts. The glue had to be cleaned from the machine approximately four to six times during a single eight-hour shift.

Borden representatives had complained that when the machine was shut off each time cleaning was required, the entire conveyor system was shut down for fifteen to twenty minutes. Therefore, according to Borden's Production Superintendent, Daniel Wynn, the key was therefore left in the machine and placed in the "bypass" or "maintenance" mode ninety-five to ninety-eight percent of the time, allowing the operators to open the Plexiglas doors while the machine remained in operation.

Plaintiff presented evidence that Borden had expended considerably more capital than anticipated at the Cape May Plant, was understaffed and suffered substantial personnel turnover. Thus, prior to plaintiff's accident, there was workplace pressure; management endorsed a "hurry, hurry, hurry" policy to improve production.

There were no warnings on the Alfa labeler concerning the dangers inherent in cleaning the machine while in operation. It is also undisputed that Borden's supervisors knew of the hazards relating to an operator's hand being exposed to the moving parts of the machine.

Plaintiff worked for Borden as a machine operator. Prior to being transferred to the labeling department, other Borden employees trained plaintiff on the proper operation of the labeling machines, including the Alfa Labeler. Individual employee training generally included review of the safety orientation sheet, discussions with the safety coordinator, and orientation by the supervisor. Other than observing fellow employees, Borden did not require plaintiff to participate in the general safety training program.

Plaintiff did not regularly operate the Alfa Labeler while working in the labeling department. However, six weeks prior to her accident, Vicky Melencoff, the trained Alfa Labeler operator, instructed plaintiff for approximately an hour and half on how to insert labels into the machine, and remove excess glue from the machine's wheels and bands. When demonstrating the process, Melencoff showed plaintiff how to open the Plexiglas doors to ...


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