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Tomeo v. Thomas Whitesell Construction Company

May 22, 2003

JOSEPH TOMEO, PLAINTIFF-APPELLANT, AND SUSAN E. TOMEO, PLAINTIFF,
v.
THOMAS WHITESELL CONSTRUCTION COMPANY, INC., A CORPORATION, DEFENDANT-RESPONDENT, AND JOHN DOE, (FICTITIOUS NAMED DEFENDANT), DEFENDANT.



On certification to the Superior Court, Appellate Division.

SYLLABUS BY THE COURT

This appeal considers whether the employer's deactivation of a safety lever on a snow blower and failure to train the employee in the snow blower's use constitute an intentional wrong under the exception to the exclusive remedy provision of the Workers' Compensation Act, N.J.S.A. 34:15-8.

Plaintiff was hired in 1988 to install sprinkler systems in commercial buildings. Whenever there was a snowstorm, plaintiff and other employees would assist with snow removal from the employer's premises to avoid loss of pay. When plaintiff reported to work on January 6, 1996, he and fellow employees were assigned to assist with snow removal. Although plaintiff had previously operated a snow blower for his employer at a different location, the employer instructed another employee to show plaintiff how to use one of two identical snow blowers. Plaintiff testified that the employee gave him a short lesson on how to start the machine.

The snow blower has a two-stage system. There is an intake propeller that grinds snow into the machine as it is self-propelled forward. The intake propeller delivers the snow to an ejection propeller that ejects the snow out through a chute. The two propellers work in tandem. The machine is equipped with a gear shift lever on one side of what is described as a handle-bar. On the other side is a safety lever that activates the propellers when squeezed and deactivates them when released. At the time of the accident, the safety lever had been taped in the operational position with electrical tape. The identity of the individual who taped the lever is not known.

As plaintiff used the snow blower some wet snow clogged the chute on two or three occasions. Each time this occurred, plaintiff would use his hand to push the snow down in the chute and the propellers would then eject the snow through the chute. On the last occasion, the propeller that ejects the snow caught plaintiff's hand causing injuries to his fingers. Because the lever had been taped, the propellers continued to operate.

Defendant moved for summary judgment based on the immunity provided in N.J.S.A. 34:15-8. After the motion was denied, bifurcated trials were conducted. At the conclusion of plaintiff's evidence presented in the liability trial and after defendant rested its case, the trial court again denied defendant's motions to dismiss.

The Appellate Division reversed. The court first summarized the decisional law interpreting the meaning of the "intentional wrong" exception to the immunity provided by N.J.S.A. 34:15-8, noting the "substantial certainty" standard adopted in Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 161 (1985), and noting further that simply being aware of the risk of harm does not equate to having knowledge of a substantial certainty of harm. The court explained that the context within which the conduct at issue occurs is also important in defining an intentional wrong. The injury must be one that the Legislature did not contemplate to be part and parcel of workplace hazards intended to be covered by the Workers' Compensation Act, nor can the circumstances giving rise to the injury be within the contemplation of the Act. The court then discussed Laidlow v. Hariton Machinery Co., 170 N.J. 602 (2002), in which this Court addressed whether removing a safety device is an intentional wrong. There, this Court concluded that summary judgment was not proper because a jury could find the employer knew it was substantially certain that removing the safety guard from a rolling mill would result in injury to one of its employees. The Court based its decision on evidence of prior close calls, the seriousness of the potential injury, the employee's complaints about the absent guard and the guilty knowledge of the employer as revealed by a deliberate and systematic deception of OSHA. This Court also determined in Laidlow that the context prong of Millison would be met if plaintiff's allegations were proven, explaining that when an employer deliberately removes a safety device from a dangerous machine to enhance profit or production with substantial certainty that it will result in death or injury to a worker and also deliberately and systematically deceives OSHA into believing the machine is guarded, the Legislature would never consider such actions to constitute simple facts of industrial life and would never expect such conduct to fall within the Workers' Compensation bar. The Court emphasized in Laidlow that it was not establishing a per se rule for removal of safety devices or other OSHA violations but rather that such cases will be grounded in the totality of the facts.

The Appellate Division applied those principals to this matter and concluded that even if defendant disabled the safety lever on the snow blower, there was a lack of evidence, including the absence of expert testimony, that the defendant knew there was a virtual certainty that an employee would be injured from using the snow blower in that condition. The court declined to hold that the mere act of disabling a safety device is a per se intentional wrong. Moreover, the court noted that there was no evidence suggesting defendant acted in a manner inconsistent with what is part and parcel of the workplace. Absent from the facts were evidence of deception or blatant disregard for the plaintiff's well-being, or evidence of conduct that demonstrated defendant violated the social contract so thoroughly that the Legislature would not expect it to fall within the Workers' Compensation bar.

HELD: The decision of the Appellate Division, reversing the trial court's decision in favor of the plaintiff, is affirmed substantially for the reasons expressed by that court. The Court adds that because plaintiff was injured by a consumer product, rather than a piece of industrial production machinery, plaintiff's own conduct can be considered in analyzing whether immunity is afforded to the employer pursuant to N.J.S.A. 34:15-8.

1. The snow blower is a consumer product; it is not part of the equipment used to produce or install sprinklers in commercial buildings--the business purpose of defendant. Plaintiff concedes that the snow blower contained two visible warning labels warning of the danger of inserting a body part into the chute. Therefore, the presence of the warning labels, the consumer-user expectation and obviousness of danger incorporated into the Products Liability Act, N.J.S.A. 2A:58C-3a(2), and the presumption that users of consumer products will heed the warnings with respect to dangers inherent in the consumer product should be considered under the context prong articulated in Millison, and also as an intervening-superceding cause that affects the substantial certainty prong. (Pp. 14-16).

2. Assuming that defendant was responsible for the taping of the safety lever, its alleged conduct can be characterized at most as grossly negligent. Moreover, the claim of negligent training of plaintiff is a red herring. No special training was required to be given for the snow blower because it is a consumer product. The warning labels adequately informed plaintiff not to put his hand into the chute while the propellers were operating. Neither negligence nor gross negligence can satisfy the intentional wrong requirement of N.J.S.A. 34:15-8. (Pp. 16 to 17).

3. Nor can the context prong, which is a legal determination, be satisfied here. Plaintiff knew or should have known that the propellers were operating when he inserted his hand into the chute; the labels on the machine clearly warned him of the dangers in this consumer product; and the inherent danger was obvious. Those facts coupled with the presumption that a proper warning of danger will be heeded are dispositive on the context prong. Our law does not impose a duty on an employer to prevent an employee from engaging in self-damaging conduct absent a showing that the employer encouraged such conduct or concealed its danger. Furthermore, our Legislature has stated that if a consumer or user is injured while using a consumer product, and the characteristics of the product are known to the ordinary consumer or user, and the harm was caused by an unsafe aspect of the product that would be recognized by the ordinary person who uses or consumes the product with the ordinary knowledge common to the class of persons for whom the product is intended, that consumer cannot recover from the manufacturer or seller of that product under a theory of defective design. N.J.S.A. 2A:58C-3a(2). The same principal should apply when a consumer product is involved in an intentional wrong under N.J.S.A. 34:15-8. (Pp. to 17 to 18).

4. Under the Millison-Laidlow standard, even if the employer disengaged the safety lever, that conduct cannot satisfy the intentional wrongdoing standard. The substantial certainty prong and the legal concept of causation are intertwined. Here, the natural and continuous sequence of events was broken by an efficient intervening cause when plaintiff placed his hand into the chute, knowing that the propellers were operating. In a legal sense, the alleged taping of the safety lever was not a substantial factor in causing the injury but simply presents the surrounding conditions under which the injury was received. (Pp. 18 to 19).

The judgment of the Appellate Division is AFFIRMED.

JUSTICE ZAZZALI, dissenting, believes that evidence that an employer disabled or knowingly tolerated the disabling of a safety device creates a rebuttable presumption that the employer knew harm to an employee was substantially certain to result. Based on the evidence in this matter, he believes that a material issue of fact existed in respect of whether a known substantial certainty of harm was present, and the trial court's denial of summary judgment was proper.

JUSTICE ALBIN, dissenting, contends that the employer's willful and knowing disengagement or removal of a safety device constitutes an intentional wrong under N.J.S.A. 34:15-8, stripping the employer of immunity. He believes further that plaintiff's use of the snow blower at the behest of his employer did not transform him into a consumer of the product. On the facts contained in the record, he believes that there is ample evidence to support the jury's verdict awarding damages to the plaintiff.

CHIEF JUSTICE PORITZ and JUSTICES VERNIERO and LaVECCHIA join in JUSTICE COLEMAN's opinion. JUSTICES ZAZZALI and ALBIN filed separate dissenting opinions. JUSTICE LONG did not participate.

The opinion of the court was delivered by: Coleman, J.

[NOTE: This is a companion case to Crippen v. Central Jersey Concrete Pipe Company, and to Mull v. Zeta Consumer Products, also decided today.]

Argued March 3, 2003

This appeal involves a common-law tort action filed by an employee against his employer based on an accident that occurred while using a snow blower. The complaint alleges that the employer deactivated a safety lever on a snow blower used to clear snow from the walkways at the employer's premises and that the employer negligently trained plaintiff, Joseph Tomeo, in the use of the snow blower. The issue raised in this appeal is whether the alleged conduct of the employer satisfies the "intentional wrong" requirement of the Workers' Compensation Act, N.J.S.A. 34:15-8. The trial court denied summary judgment to the employer and a jury found in favor of plaintiff. The Appellate Division reversed, finding that the trial court erred in not granting summary judgment for defendant. We agree and affirm.

I.

Plaintiff was hired by defendant in 1988 to install sprinkler systems in commercial buildings. Whenever there was a snowstorm plaintiff and other employees were assigned to assist with snow removal from the employer's premises to avoid loss of pay. Consistent with that past practice, when plaintiff reported to work on January 9, 1996, Timothy Cahill, Vice President for Construction, assigned plaintiff and others to assist with snow removal. Although plaintiff had previously operated a snow blower for his employer at a different location, Cahill instructed Ken Williamson to show plaintiff how to use one of two identical snow blowers. The snow blower was a Toro Model 1132. Although the evidence was contradictory concerning the extent and quality of the training Williamson provided plaintiff, plaintiff concedes there was some training. Plaintiff testified that Williamson removed the snow blower from his truck and gave him "a short version of how to start the machine," consuming approximately five to ten minutes.

Before using the snow blower for snow removal, plaintiff used a shovel to clear snow from some steps. Plaintiff testified that after shoveling the steps, he used the snow blower at another building located about 500 yards across the street from where he had shoveled snow. He "turn[ed] the snow blower[]on when [he] got across the street" and "started to use it."

The Toro Model 1132 snow blower has a two-stage system. There is an intake propeller that grinds snow into the machine as it is self-propelled forward. The intake propeller delivers the snow to an ejection propeller that ejects the snow out through a chute. The two propellers work in tandem. The machine is equipped with a gear shift lever on one side of what is described as a handle-bar, like on a bicycle. On the other side is a safety lever that activates the propellers when squeezed and deactivates them when released. At the time of the accident, the ...


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