On appeal from the Superior Court, Appellate Division, whose opinion is reported at 335 N.J. Super. 330 (2000).
The opinion of the court was delivered by: Long, J.
Chief Justice Poritz PRESIDING
The Workers' Compensation system has been described as an historic "trade-off" whereby employees relinquish their right to pursue common-law remedies in exchange for prompt and automatic entitlement to benefits for work-related injuries. Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 161, 174 (1985). That characterization is only broadly accurate. In fact, not every worker injured on the job receives compensation benefits and not all conduct by an employer is immune from common-law suit. The Legislature has declared that certain types of conduct by the employer and the employee will render the Workers' Compensation bargain a nullity. Thus, for example, a worker whose death or injury is "intentionally" self-inflicted or results from a "willful" failure to make use of a safety device, furnished and required by the employer, will be ineligible for benefits. N.J.S.A. 34:15-7; Akef v. BASF Corp., 140 N.J. 408, 412-413 (1995). Likewise, an employer who causes the death or injury of an employee by committing an "intentional wrong" will not be insulated from common-law suit. N.J.S.A. 34:15-8; Millison, supra, 101 N.J. at 169.
The described limitations involve intentional wrongful conduct committed either by the worker or the employer. Underlying those limitations is the idea that such conduct neither constitutes "a natural risk of" nor "arises out of" the employment, the very notions at the heart of the Workers' Compensation bargain in the first instance. See generally Modern Workers Compensation, § 102.20 (2001).
The focus of this appeal is conduct by an employer that is alleged to constitute an intentional wrong under N.J.S.A. 34:15- 8. We are called on to revisit our holding in Millison; resolve conflicting interpretations of it; and apply that decision to a case in which an injured employee claims that his employer has removed a safety device from a dangerous machine, knowing that the removal was substantially certain to result in injury to its workers and, in addition, deliberately and systematically deceived safety inspectors into believing that the machine was properly guarded. We hold that, in those circumstances, the employee's allegations, if proven, meet both the conduct and context prongs of Millison, thus entitling the employee to pursue his common-law remedies.
Rudolph Laidlow (Laidlow) suffered a serious and debilitating injury when his hand became caught in a rolling mill he was operating at his place of employment, AMI-DDC, Inc. (AMI). Laidlow sustained a crush and degloving injury resulting in partial amputations of the index, middle, ring and small fingers of his dominant left hand. Laidlow sued AMI on an intentional tort theory. He also named his supervisor, Richard Portman (Portman), in the suit for discovery purposes. AMI answered, denying the allegations of the complaint, and moved for summary judgment on the basis of the Workers' Compensation bar.
Under Rule 4:46-2, a movant will be granted summary judgment if the court finds, after reviewing the full motion record in the light most favorable to the adverse party, that there is no genuine issue of material fact. Brill v. Guardian Life Insurance Company of America, 142 N.J. 520, 533 (1995). It is with that standard in mind that we view the facts presented on AMI's motion.
AMI is in the business of manufacturing electrical products. Laidlow has been employed by AMI since August 7, 1978. On December 11, 1992, Laidlow was performing his job as a "set up man," which required him to work with a rolling mill that changed the dimension of heated metal bars when they were inserted into the mill. Laidlow manually inserted the bars into a "channel" that guided them into the mill, and often had to apply pressure to the bars with his hand in order to feed them into the rollers. On the day of the accident, Laidlow's glove became caught by the unguarded nip point as he was pushing a bar of silver into the channel. His gloved hand was pulled toward the mill's rollers. An eyewitness, Laidlow'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, Laidlow's glove had also become 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 just in time to escape injury. Those close calls were reported to AMI.
After the rolling mill was purchased by AMI in 1978, the company arranged to have a safety guard installed. However, the safety guard was "never" engaged; from 1979 to the date of Laidlow's accident in 1992, the guard always was "tied up." According to Laidlow, the guard was placed in its proper position only when Occupational Safety and Health Administration (OSHA) inspectors came to the plant. On those occasions, Portman, Laidlow's supervisor, would instruct employees to release the wire that was holding up the safety guard. As soon as the OSHA inspectors left, the safety guard would again be disabled.
Laidlow 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 the mill until Laidlow was seriously injured during the incident at issue here.
Laidlow spoke to Portman regarding the safety guard three times during the period immediately preceding his accident. Approximately two weeks prior to the accident, Laidlow asked Portman to restore the guard. Several weeks before that, he spoke to Portman because a new operator was going to work on the mill and Laidlow thought the guard should be restored to its operative position. Additionally, one week before the incident, Laidlow again expressed concern that a new, inexperienced operator would be working on the mill, and told Portman that it was dangerous not to use the guard. According to Laidlow, the guard was never restored. Portman responded to his requests by stating that "it was okay" and "not a problem," and by "walk[ing] away." Laidlow never refused to operate the mill without the safety guard in place nor spoke with any other superior in the company about the safety guard.
AMI concedes that the guard was removed for "speed and convenience." In addition, Gerald Barnes, a professional engineer retained by Laidlow, certified that AMI "knew there was a virtual certainty of injury to Mr. Laidlow or a fellow work[er] arising from the operation of the mill without a guard."
On those facts, the trial court concluded that Laidlow failed to demonstrate an "intentional wrong" under N.J.S.A. 34:15-8 and that Workers' Compensation was his exclusive remedy. Accordingly, the trial court granted AMI's motion for summary judgment, along with a similar motion filed by Portman.
The Appellate Division affirmed the dismissals, concluding that there was no evidence of an intentional wrong by AMI to warrant an exception from the Workers' Compensation bar. Laidlow v. Hariton Machinery Co., Inc., 335 N.J. Super. 330 (2000). The panel relied on the lack of any accident over a twelve-year period and determined that OSHA violations alone, in the absence of proof of deliberate intent to injure, would not satisfy the intentional wrong standard. The court dismissed the suit against Portman because Laidlow failed to demonstrate any need to pursue discovery. Id. at 343.
Judge Lintner dissented, contending that the record, fairly read, presented a jury issue regarding intentional wrong; that the lack of injuries over the twelve-year period was not dispositive of the issue of substantial certainty of injury; that, coupled with the guard's removal, AMI's deceptive practices with regard to OSHA provided conclusive evidence of "context" under Millison; and that Laidlow should have been allowed to obtain discovery from Portman because Portman was in a unique position to provide evidence of what the employer knew. Id. at 347-49.
The appeal is before us as of right under Rule 2:2-1(a)(2) based on the dissenting opinion below. We granted Amicus status to the Trial Lawyers of America (ATLA-NJ) and New Jersey Manufacturer's Insurance Company (NJM).
In essence, Laidlow's argument is that the combination of the employer's disabling of the safety guard and deception of OSHA presents a triable issue on whether such conduct meets the definition of an "intentional wrong." AMI counters that under Millison, an intentional wrong requires a "deliberate intention to injure" and that Laidlow concedes that no one at AMI harbored such an intention. AMI also maintains that Millison specifically declared that the removal of a safety device fails to meet the intentional wrong standard. To the extent that recent Appellate Division decisions, particularly Mabee v. Borden, Inc., 316 N.J. Super. 218 (1998), suggest the contrary, AMI argues that those cases should be disapproved. Furthermore, AMI argues that even if removal of a safety guard could qualify in some circumstances as an intentional wrong, the absence of any prior injury on its machine and Laidlow's successful experience in operating the machine without an accident for over twelve years obviates that possibility in this case.
NJM supports AMI's position that, under Millison, the standard for an intentional wrong requires proof of an employer's subjective intent to injure and that the deliberate removal or alteration of a safety guard does not constitute a "deliberate intent to injure." NJM also claims that the OSHA violations are legally irrelevant under Millison.
The heart of ATLA-NJ's position is that AMI and NJM totally mischaracterize Millison. ATLA contends that Millison specifically rejected the notion that an intentional wrong requires a deliberate intent to injure on the part of the employer; that Millison never declared that removal of a safety device failed to meet the standard for an intentional wrong; that Mabee correctly recognized that removal of a safety guard can satisfy the intentional wrong standard; that the Appellate Division's reliance on the lack of prior accidents on the mill machine allows for "one free injury" contrary to our public policy; and that there is a jury question regarding whether the employer's actions constituted an intentional wrong.
Our decision in Millison is obviously at the root of this case and a review of our holding there is essential. In Millison, we were faced with the question of "what categories of employer conduct will be sufficiently flagrant so as to constitute an ?intentional wrong,' thereby entitling a plaintiff to avoid the ?exclusivity' bar of N.J.S.A. 34:15-8?" Millison, supra, 101 N.J. at 176. That statute reads:
Such agreement shall be a surrender by the parties thereto of their rights to any other method, form or amount of compensation or determination thereof than as provided in this article and an acceptance of all the provisions of this article, and shall bind the employee and for compensation for the employee's death shall bind the employee's personal representatives, surviving spouse and next of kin, as well as the employer, and those conducting the employer's business during bankruptcy or insolvency.
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 ...