Before Judges Baime, Carchman and Lintner.
The opinion of the court was delivered by: Carchman, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 20, 2000
On appeal from Superior Court of New Jersey, Law Division, Morris County.
Plaintiff Rudolph Laidlow suffered a serious and debilitating injury when his fingers and hand were caught in a rolling mill which plaintiff was operating in the course of his employment. After prosecuting a workers' compensation claim against his employer, defendant AMI-DDC, Inc. (AMI), plaintiff filed a personal injury claim against AMI, asserting that the "intentional wrong" exception to the Workers' Compensation Act, N.J.S.A. 34:15-8, applied, and plaintiff was not barred from seeking further recovery against AMI. Plaintiff sought additional relief against defendant Hariton Machinery Corp., the "seller" of the rolling mill, asserting strict liability under the Products Liability Act, N.J.S.A. 2A:58C-1 to -11. Finally, plaintiff sought relief against a fellow employee, Richard Portman, substantively for liability and damages, as well as for discovery purposes.
On a series of motions for summary judgment, the various motion judges dismissed plaintiff's complaint and concluded that plaintiff had failed to establish a genuine issue of material fact regarding the standard of "intentional wrong," that Hariton was not a "seller" under N.J.S.A. 2A:58C-2, and that Portman was not a proper party-defendant. Hariton's motion for summary judgment seeking indemnification from AMI was also granted.
Plaintiff appealed, and Hariton cross-appealed. We conclude that the determinations of the motion judges were correct, and that they did not err in dismissing plaintiff's complaint as to AMI, Hariton, and Portman. Accordingly, we affirm and dismiss the cross-appeal as moot.
These are the relevant facts as viewed most favorably to plaintiff. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). On December 11, 1992, plaintiff, an employee of AMI, was performing his job as a "set up man," which required him to work with a rolling mill which changed the dimension of heated metal bars when they were inserted into the mill. Plaintiff manually inserted the bars into a "channel" which guided them into the mill, and often had to apply pressure to the bars to feed them into the rollers. On the day of the accident, plaintiff's glove became caught as he was pushing a bar of silver into the channel toward the rollers. Plaintiff's gloved hand was pulled up to the mill. An eyewitness, plaintiff's co-worker Steven Smozanek, described the incident as follows: "The rollers are approximately 18 inches in diameter, and as he was feeding the bar into the roller, it pulled his hand against the roller, not into the roller, and as it pulled the hand against the roller, it just ripped the glove and the skin right off his hand."
On a prior occasion, plaintiff's glove was hooked on a bar, but he was able to slip his hand out of the glove before it was pulled into the machine. Smozanek described a similar incident when he was working on the mill and his gloved hand had snagged on a bar, but he too, was able to pull his hand out of the glove before it was pulled into the mill.
The mill which performed this task was purchased by AMI in 1978 for $36,000 from Hariton, a company that buys and sells new and used metal- working machinery. The used mill was located by Hariton at AMI's request. After inspecting the mill at a third party's location, AMI purchased the mill from Hariton. Hariton never took possession or control of the mill, but did take title. The mill was transported directly from its prior location to AMI. At the time of the purchase, the mill did not have a safety guard. Several months after the purchase, a guard was installed. It was "never" in the proper position, and from 1979 to the date of his accident in 1992, the guard was always "tied up." According to plaintiff, the guard was placed in the proper position only when OSHA *fn1 inspectors came to the plant. On these occasions, Portman, plaintiff's supervisor, would instruct employees to remove the wire that held the safety guard up. As soon as the OSHA inspectors left, the safety guard would again be tied up. Plaintiff operated the mill without the safety guard in place for approximately twelve to thirteen years. During that period, except for the "near misses" referred to earlier, there were apparently no accidents with this mill until plaintiff was injured.
Plaintiff spoke with Portman regarding the safety guard three times before this incident. Approximately two weeks prior to this accident, plaintiff asked him to put the guard in place. Several weeks prior to that, he spoke to Portman because a new operator was going to work on the mill, and plaintiff thought the guard should be put in place. Additionally, one week before the incident, plaintiff expressed concern that a new, inexperienced operator was going to begin work on the mill, and he told Portman that it was dangerous not to use the guard. According to plaintiff, Portman responded to these requests by stating that "it was okay" and "not a problem," and "walk[ing] away." Plaintiff, however, never refused to operate the mill without the safety guard in place, and never spoke with any other superior in the company regarding the safety guard.
The guard was not used because its presence, although protective of employees, slowed down the mill operation. Gerald Barnes, a professional engineer retained by plaintiff, opined that AMI "knew that the absence of the panelbar gate posed a substantial risk to workers including [plaintiff] since the supervisors directed them to put the guard back into position prior to each OSHA inspection."
Judge Wilson granted summary judgment in favor of AMI, concluding that the Workers' Compensation Law provided the exclusive remedy to plaintiff because he failed to demonstrate intentional injury. In so finding, she stated:
I have a machine here that was operating in this State for 12 years with no injuries. And what I have on the other side is somebody's statement - certainly not the plaintiff's own statement, but somebody's statement that there was a substantial certainty here. But that's a conclusion of law. It's not an allegation of fact. It's not evidence. So it's not something that I could send to the jury to support - or to allow them to consider whether or not there was intent to injure.
Consistent with Judge Wilson's ruling, Judge Cramp thereafter granted summary judgment to Portman as a co-employee, finding that because of the dismissal as to AMI, Portman was not liable for an intentional tort. Judge Cramp also determined that Portman could not be maintained as a defendant solely for the purposes of obtaining discovery.
Judge Cramp additionally concluded that Hariton was entitled to summary judgment because it was not a seller under the Products Liability Act, but rather, was merely a broker. Finally, Judge Cramp granted summary judgment to Hariton against AMI, concluding that AMI was required to indemnify Hariton for any damages it suffered because of an indemnification clause included in the invoice of purchase. This appeal and cross-appeal followed.
On appeal, plaintiff asserts that a genuine issue of material fact exists as to whether this was an "intentional wrong," that the motion judge erred in dismissing the complaint as to Portman, and that Hariton was a seller under the Products Liability Act. As to the claim of an intentional tort, AMI counters that the claim is barred by the two year statute of limitations, N.J.S.A. 2A:14-2.
Plaintiff claims that despite his recovery of workers' compensation benefits, he was entitled to further damages because AMI's conduct fell within the exception to the exclusive remedy provision of N.J.S.A. 34:15-8. That statute provides in pertinent part:
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.]
The limitation contained in the statute reflects the policy and objectives of the workers' compensation system, constituting a "historic trade-off whereby employees relinquished their right to pursue common- law remedies in exchange for automatic entitlement to certain, but reduced benefits whenever they suffered injuries by accident arising out of and in the course of employment." Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 161, 174 (1985). The statute does, by its ...