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Mull v. Zeta Consumer Products

May 22, 2003

LISA MULL, PLAINTIFF-APPELLANT,
v.
ZETA CONSUMER PRODUCTS, DEFENDANT-RESPONDENT, AND CUSTOM MACHINE DESIGN, INC. AND XYZ COMPANY, A FICTITIOUS NAME, DEFENDANTS.



On certification to the Superior Court, Appellate Division.

SYLLABUS BY THE COURT

This appeal considers whether, pursuant to N.J.S.A. 34:15-8, plaintiff is entitled to pursue a common-law remedy for work-related injuries sustained while she was emp loyed by the defendant.

Defendant employed plaintiff as a line operator at its plastic-bag manufacturing facility. One of plaintiff's duties required that she work with a machine known as a "winder," which winds plastic bags onto spools for packaging and delivery. Nylon ropes turn the machine's cylinders. Plastic frequently jammed the machine, sometimes causing the nylon ropes to break. Whenever that occurred, defendant required the line operator to clear the jam and replace any broken ropes. On March 5, 1997, plaintiff was operating the machine when it became jammed. She turned off the machine by pressing the red stop button on the control panel. She lifted a fiberglass guard, removed the lodged plastic and began to replace the broken ropes. Suddenly, the winder began to operate, pulling plaintiff's left hand into the machine. Plaintiff sustained serious injuries, including amputation of some fingers.

As a result of the incident, the Occupational Safety and Health Administration (OSHA) cited defendant for various safety violations. Several months before, OSHA had cited defendant for failing to provide its employees with lockout-tagout procedures, which are designed to control the release of hazardous energy when a worker is servicing or performing maintenance on equipment. Also prior to the date of plaintiff's injuries, another line operator had been injured when his hand was pulled into the winder, although that incident did not occur in exactly the same fashion as had plaintiff's incident.

Plaintiff filed a complaint seeking damages against defendant based on an intentional tort theory. In support of her claims, plaintiff submitted an expert report opining that defendant's desire to enhance productivity had motivated it to alter the original design of the winder. The report explained the alterations as relating to safety, and noted further that there were no warnings posted on the winder to inform workers of its sudden start-up capabilities or of the fact that the safety-interlock switches (designed to prevent operation of the machine any time the access cover was opened) had been removed. Other purported hazards were noted by the report, and the expert concluded that those hazardous operating conditions created a virtual certainty of injury. Plaintiff also presented a certification by a co-employee stating that he had complained to management about safety concerns, including the situation relating to the sudden start up of the winder machine. The certification stated also that the co-employee had experienced personally this problem and had reported it to his supervisor.

Defendant moved for summary judgment, arguing that plaintiff's sole remedy resided within the Division of Workers' Compensation. The trial court denied the motion after concluding that a reasonable jury could find that defendant's conduct created a substantial or virtual certainty of injury rising to the level of an intentional wrong, pursuant to N.J.S.A. 34:15-8. The Appellate Division summarily reversed the trial court's decision. Subsequent to that decision, this Court decided Laidlow v. Hariton Machinery Co., 170 N.J. 602 (2002), in which the Court addressed the Workers' Compensation Act's intentional-wrong standard. As a result, this Court granted plaintiff's petition for certification and summarily remanded the matter to the Appellate Division for reconsideration in light of Laidlow. After the remand, the Appellate Division affirmed its prior judgment.

HELD: Plaintiff's allegations, if proven, would satisfy the intentional wrong exception to the immunity from common- law suit provided by New Jersey's Workers' Compensation Act, and she is entitled to proceed in the Law Division with the action she filed against her employer for injuries sustained on the job.

1. The New Jersey Workers' Compensation Act, N.J.S.A. 34:15-1 to -128, provides the exclusive remedy for claims against an employer when a worker is injured on the job. The statute embodies 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. However, an employer who causes the death or injury of an employee by committing an intentional wrong will not be insulated from common-law suit. Under the intentional wrong exception, pursuant to N.J.S.A. 34:15-8, the worker may pursue a common-law remedy in the Law Division. (P. 6).

2. In Laidlow, this Court addressed an employer's disabling of a safety guard on a rolling mill. The plaintiff in that matter was injured when his hand was caught in the mill. This Court reaffirmed that two conditions must be satisfied for an employer to lose the cloak of immunity of N.J.S.A. 34:15-8. Those conditions are that the employer must know his actions are substantially certain to result in injury or death to the employee (the conduct prong), and that the resulting injury and the circumstances of its infliction must be more than a fact of life of industrial employment and plainly beyond anything the Legislature intended the Workers' Compensation Act to immunize (the context prong). In respect of the conduct prong, this Court noted that plaintiff had asked his supervisor on three occasions prior to the incident to replace the guard, and noted further that the only time the guard was activated was when OSHA inspectors came. These factors, along with the prior close calls of plaintiff and other employees that were reported to the employer and the seriousness of any potential injury that could be expected to occur, caused this Court to conclude that a reasonable jury could determine that the employer knew it was substantially certain that the removal of the safety guard would result eventually in injury to one of its employees. In respect of the context prong, this Court concluded that the Legislature would never consider it a simple fact of industrial life where the employer deliberately removed a safety device from a dangerous machine to enhance profit or production with substantial certainty that it would result in death or injury and also deliberately and systematically deceived OSHA into believing the machine was guarded. Lastly, this Court explained in Laidlow that the same facts and circumstances generally will be relevant to both prongs of the test, and that determining whether the context prong has been satisfied is a judicial function. As such, if the substantial certainty standard presents a jury question and if the court concludes that the employee's allegations if proved would meet the context prong, the employer's motion for summary judgment should be denied. (Pp. 6-8).

3. Here, plaintiff contends that the defendant disengaged the safety device knowing of the dangerous consequences of such conduct. She contends that the co-employee's prior accident and OSHA's prior citations, among other allegations, along with the expert's report, underscore the machine's hazardous condition. The facts, if proved, could result in a reasonable jury finding that defendant's conduct created a substantial certainty of injury. Although defendant contends that its lack of deception toward OSHA warrants a contrary conclusion, this Court emphasized in Laidlow that no one fact compelled its holding, and that dispositions in cases involving the remo val of safety devices will be grounded in the totality of the facts. As such, plaintiff has satisfied the conduct prong of the test. (P. 9).

4. The context prong of the test is also satisfied here because the Legislature would not have considered the removal of the winder's safety devices, coupled with the employer's alleged knowledge of the machine's dangerous condition due to the prior accidents, employee complaints and OSHA's prior violation notices, to constitute simple facts of industrial life. (P. 10).

The judgment of the Appellate Division is REVERSED, and the matter is REMANDED to the Law Division for further proceedings consistent with this opinion.

JUSTICE ZAZZALI, concurring, joins in the judgment of the Court, but he would adopt a rule that evidence of an employer's disabling or knowing toleration of the disabling of a safety device would create a rebuttable presumption that the employer knew harm to an employee was substantially certain to occur. He contends that such a rule would properly place on employers the burden of coming forward with evidence regarding their state of mind and that it would promote more equitable distribution of the costs of workplace injuries between manufacturers and employers. JUSTICE ALBIN, concurring, joins in the judgment of the Court, but he adds that it is time to adopt a clear and precise rule that an employer's willful and knowing disengagement or removal of a safety device constitutes an intentional wrong under N.J.S.A. 34:15-8.

CHIEF JUSTICE PORITZ and JUSTICES COLEMAN, LONG and LaVECCHIA join in JUSTICE VERNIERO's opinion. JUSTICES ZAZZALI and ALBIN filed separate concurring opinions.

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

[NOTE: This is a companion case to Crippen v. Central Jersey Concrete Pipe Company, and to Tomeo v. Thomas Whitesell ...


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