On appeal from Superior Court of New Jersey, Law Division, Monmouth County, L-431-99.
Before Judges Petrella and Baime.
The opinion of the court was delivered by: Petrella, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Plaintiff Annabelle Crippen, the widow of decedent Harold Crippen, appeals from the entry of summary judgment in the Law Division in favor of defendants Central Jersey Concrete Pipe Company (Concrete Pipe) and Gallo Industries, Inc. (Gallo) (allegedly Concrete Pipe's parent company). The central issue on appeal is whether defendants' knowledge of and failure to remedy unsafe working conditions previously cited by the Occupational Safety and Health Administration (OSHA) constitutes an intentional wrong under N.J.S.A. 34:15-8, such that plaintiff may bring an action in tort for the death of her husband. Additionally, plaintiff claims that the judge erred in granting summary judgment prior to the completion of discovery.
Plaintiff's complaint alleged that (1) Concrete Pipe's willful, wanton, reckless, negligent and careless actions permitted a dangerous condition to exist at the plant contrary to OSHA's directive, and that dangerous condition proximately caused Crippen's accidental death in the workplace (count one); and (2) the equipment used by Crippen in the course of his duties was defective (count two).
Concrete Pipe moved for summary judgment on count one, arguing that plaintiff's claim was barred under N.J.S.A. 34:15-8, the exclusive remedy provision of the Worker's Compensation Act. Plaintiff conceded that her negligence claims were barred, but argued that Concrete Pipe's willful and wanton failure to abate violations cited by OSHA constituted an intentional wrong not barred under N.J.S.A. 34:15-8. Plaintiff further argued that the matter was not ripe for summary judgment because discovery was not complete and OSHA had not released its complete investigation report.
The judge granted summary judgment in favor of Concrete Pipe, ruling that further discovery was not necessary to resolve the matter because, even assuming Concrete Pipe lied to OSHA by representing that it was taking steps to rectify the safety problem after the 1997 citation, the injury was not intentional, and thus, not actionable.
Discovery continued as to count two of the complaint. Plaintiff ultimately received the complete OSHA investigation report. That report and the subsequent deposition of Charles Mason, Concrete Pipe's Safety Director, indicated that Concrete Pipe had misled OSHA and failed to implement corrective measures required by OSHA to abate earlier violations. Based on this information, plaintiff sought leave to file an amended complaint adding Mason as well as other companies allegedly owned by Gallo as defendants, and including a third count which essentially restated the allegations of the first count on which the judge previously granted summary judgment. The judge denied the motion, holding that there was no viable cause of action against Mason or other Gallo owned companies.*fn1 This appeal followed.
The salient facts are viewed in the light most favorable to plaintiff. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). As the name implies, Concrete Pipe manufactures concrete pipes. Sand and gravel are transported to the plant by truck and dumped into two separate holding bins at ground level. The bins are moved by conveyor belt to an elevator which then carries them over the "change-over" room, an elevated shed containing the material hopper. The sand and gravel are dumped from the elevator into the material hopper.
The material hopper is described as a giant funnel divided into three sections, one containing sand and two containing gravel. The hopper is about seventeen feet deep and each section is approximately eight by ten feet and contains approximately fifty tons of material. From the hopper the sand and gravel flow down chutes to the mixing room, where workers control the flow of materials from the chutes and weigh them before they are mixed into concrete.
The flow of material from the elevator/conveyor belt into the appropriate section of the hopper is manually controlled by a lever in the change-over room. The "material man" accesses the change-over room by a ladder attached to the exterior of the facility and an exterior catwalk with no midrail. Once inside the change-over room, the material man must cross a two by ten inch wooden plank of unspecified length over the material hopper and then climb a five foot step ladder resting in the closed position to reach the lever about three feet above the top of the ladder.
On June 6, 1998, Harold Crippen was performing the job of material man at the plant. He was last seen at approximately 9:15 a.m. climbing the exterior ladder to the change-over room. At approximately 10 a.m. an employee in the mixing room releasing sand from the sand hopper chute noticed that the chute appeared to be clogged. When he investigated, he discovered that Crippen was in the sand hopper and clogged the chute when the employee released the sand. Crippen was eventually freed through the eleven by eighteen inch opening of the chute. Police and emergency assistance administered CPR, but ...