On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-3795-98.
Before Judges Wallace, Jr., Carchman and Parrillo.
The opinion of the court was delivered by: Parrillo, J.S.C. (temporarily assigned)
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Plaintiff Delfina Kaczorowska appeals the dismissal of her complaint against her employer, defendant National Envelope Corporation-East (NEC-East), and its parent, defendant National Envelope Corporation (NEC). Because matters beyond the pleadings were considered below, we analyze the viability of plaintiff's claims of liability against defendants under the summary judgment standard of Rule 4:46-2. See R. 4:6-2. We affirm.
On January 30, 1998, plaintiff suffered a catastrophic amputation workplace injury. While walking towards another machine on which she was assigned to work, plaintiff tripped and fell over boxes in the aisle and got her arm entrapped in an unguarded timing/drive belt on a Latex 1 envelope-gluing machine. The original machine was designed and manufactured by New Jersey Machine Company who sold it to Envelope Converters, Inc. on February 1, 1971. Envelope Converters, Inc. was subsequently purchased by New York Envelope Corporation, which in 1993 became known as National Envelope Corporation (NEC), the parent company of plaintiff's employer. Back in 1981, NEC acquired another of its competitors, Champion Envelope Corporation, which in 1994 changed its name to National Envelope Corporation-East (NEC-East), plaintiff's employer and a wholly owned subsidiary of NEC. Shortly after the Latex 1 adhesive machine was sold, New Jersey Machine shipped to Envelope Converters, Inc. three perimeter guards to cover the unit's heating lamps. Two of the guards were installed on the rear of the machine; the third, on the side of the machine where the accident occurred. None of the three guards were on the machine at the time of the accident. Two of the guards were observed lying alongside of the machine after the accident.
The initial design of the Latex 1 machine had been adapted to facilitate an attachment used to produce "peel and seal" envelopes, a function the machine was not originally designed to perform. The "peel and seal" attachment was designed by an employee of Champion Envelope Corporation, Al Bruno, sometime after the company's acquisition by NEC in 1981 and before its name change to NEC-East. To operate the "peel and seal" attachment, modifications were made to the original machine by Bruno including installation of a gear box, drive shaft, timing belt and several pulleys. At the time of the accident, the "peel and seal" attachment was not being used; however, one of the timing belts was left hanging from a rotating drive shaft. Plaintiff's right arm became entangled in the unguarded, hanging timing belt.
Plaintiff originally sued New Jersey Machine and named NEC- East as a defendant for the sole purpose of discovery. She then moved to amend her complaint to include NEC-East as a proper defendant, to include its parent corporation, NEC, as a defendant, and to assert the "intentional wrong" exception to the Workers' Compensation Act (Act) as a theory of liability. After a hearing on plaintiff's motion on November 5, 1999, Judge Sachar entered an order on March 3, 2000 granting plaintiff leave to amend her complaint adding NEC-East and NEC as defendants but specifically restricting her from including therein a count asserting the "intentional wrong" exception to the Act's exclusivity bar.
On March 14, 2000, plaintiff filed an amended complaint asserting claims against her employer NEC-East based upon the so- called "dual capacity" doctrine*fn1 and against her employer's parent, NEC, based on successor liability.*fn2 On June 9, 2000, Judge Sachar granted New Jersey Machine's motion for summary judgment as well as NEC-East and NEC's motion to dismiss all four counts of plaintiff's complaint against them. Plaintiff appeals from this decision as well as Judge Sachar's earlier ruling precluding a claim against NEC-East alleging "intentional wrongdoing." We will discuss the latter first.*fn3
Plaintiff argues that her employer's removal of safety guards from the Latex 1 adhesive machine was an "intentional wrong" excepted from the Workers' Compensation Act's (Act) exclusivity bar. The Act precludes an employee injured during the course of employment from asserting a cause of action against her employer beyond the remedy provided therein, N.J.S.A. 34:15-8, unless the employer's action was an "intentional wrong." N.J.S.A. 34:15-9. However, to further its underlying principle to process as many work-related disability claims as possible exclusively within the Act, the "intentional wrong" exception must be construed very narrowly. Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 161, 177 (1985); Laidlow v. Hariton Machinery Co., Inc., 335 N.J. Super. 330, 338 (App. Div. 2000), certif. denied, N.J. (2001);*fn4 Bustamonte v. Tuliano, 248 N.J. Super. 492, 498-499 (App. Div.), certif. denied, 126 N.J. 385 (1991). Even an injury "caused by either gross negligence or an abysmal lack of concern for the safety of employees" is insufficient to satisfy the "intentional wrong" exception. Marinelli v. Mitts & Merril, 303 N.J. Super. 61, 72 (App. Div. 1997). See also Millison, supra, 101 N.J. at 171-73. Rather, the level of intent sufficient to overcome the exclusivity of the Act is a "deliberate intention to injure." Mabee v. Borden, Inc., 316 N.J. Super. 218, 227 (App. Div. 1998) (internal citations and quotations omitted). An employer acts with such an intent when he "desires to cause consequences of his act or is substantially certain that such consequences will result from his actions." Millison, supra, 101 N.J. at 178 (quoting from Restatement 2d of Torts § 8A). Thus, "[t]he employee may prove 'intent to injure' not only by evidence of the employer's actual intent to injure, but also by circumstances where the employer knows an injury is a substantial or virtual certainty." Mabee v. Borden, Inc., supra, 316 N.J. Super. at 227 (quoting New Jersey Manufacturers Insurance Co. v. Joseph Oat Corp., 287 N.J. Super. 190, 197 (App. Div. 1995)). As the court in Millison, supra, emphasized, "the dividing line between negligent or reckless conduct on the one hand and intentional wrong on the other must be drawn with caution [as] . . . [w]e must demand a virtual certainty." Id. at 178.
An employer's removal of a safety device does not present a per se prima facie case of an "intentional wrong." Id. at 171 (internal citation omitted); Mabee, supra, 316 N.J. Super. at 230- 231. Instead, the determination is fact sensitive and must be interpreted on a case by case basis. Id. at 231. In Laidlow v. Hariton Machinery Co., Inc., supra, this court affirmed summary judgment dismissing an employee's cause of action against his employer on facts considerably more egregious than here. In that case, an employee suffered a severe and debilitating injury when his fingers and hand were caught in a rolling mill machine. Id. at 334. Although a safety guard had been installed on the machine, the device was "never" in its functioning position. Id. at 335. In fact, the device was "tied up" with wire so that it could not be readily engaged. Ibid. It was established that the device was not used because it hampered the operation of the mill. Id. at 336. The only time that the device was placed in the engaged position was when OSHA inspectors visited the plant, at which time supervisors ordered the device to be untied. Id. at 335-36.
The plaintiff-employee had approached his supervisor several times regarding the use of the device. Id. at 336. One week prior to the injury, the plaintiff requested that the device be engaged because he believed it was dangerous to operate the machine without the device. Ibid. However, plaintiff continued to operate the machine without the device until he was injured. Ibid.
This court upheld the grant of summary judgment, finding that a narrow reading of the "intentional wrong" exception excludes a prima facie showing of intent to harm, even where the employer intentionally removed a safety device. Id. at 340. We explained that both Millison and Mabee require that the employer's conduct be analyzed in the proper context and, in that regard, noted that the safety device went unused as "a matter of course" in the factory and that there were no accidents in previous years. Id. at 341. While acknowledging that removal of a safety device suggested a ...