On certification to the Superior Court, Appellate Division, whose opinion is reported at 350 N.J. Super. 313 (2002).
This appeal considers whether an employer's failure to cure hazardous conditions in violation of directives issued by the United States Department of Labor, Occupational Safety & Health Administration (OSHA), coupled with the employer's intentional deception of OSHA, constitutes an intentional wrong under the exception to the exclusive remedy provision of the Workers' Compensation Act, N.J.S.A. 34:15-8.
On June 6, 1998, the decedent was working as a material man for defendant Central Jersey Concrete Pipe Company. The decedent was responsible for controlling the movement of sand and gravel into loading hoppers. In order to activate the lever and regulate the inflow of sand or gravel, the decedent had to walk on a single two-inch by ten-inch wooden plank and stand on a six-foot high, unsecured ladder that rested on the wooden plank. On the day of the accident, the decedent fell into the sand hopper and suffocated. His body was discovered buried in the sand when a co-worker released sand from the chute at the bottom of the hopper.
Plaintiff, as Administratrix, filed a wrongful-death claim against the defendant alleging that the accident was caused by its willful and wanton actions, thus falling within the intentional wrong exception to N.J.S.A. 34:15-8, commonly referred to as the exclusive remedy provision. Defendant moved for summary judgment, arguing that the decedent's work conditions did not create a substantial certainty that an injury would occur. Defendant argued further that the death and the circumstances around it fairly should be viewed as a fact of industrial employment. Plaintiff responded that discovery was incomplete because OSHA's investigative report was not finalized, and argued further that the claim was proper because defendant failed to correct OSHA violations and made fraudulent misrepresentations to OSHA that it had abated unsafe work conditions. The trial court granted defendant's summary judgment motion, finding that the intentional wrong exception did not apply in this case because there was no substantial certainty that injury would occur.
Following the dismissal of the intentional tort count of the complaint, plaintiff conducted further discovery related to another count. During that discovery, plaintiff obtained the entire OSHA file. The file revealed that in 1997 OSHA had issued a citation and notification of penalty against the defendant for failing to identify permit-required confined spaces, such as hoppers, failing to develop procedures for safe permit space entry operations and for emergency situations affecting those spaces, failing to implement lockout-tagout procedures, and failing to train employees in safety measures relating to this procedure. Plaintiff also deposed the defendant's Health and Safety Manager, who admitted that the defendant failed to abate many of the hazardous conditions prior to the decedent's death. The manager admitted also that the training program was insufficient and that he knew an employee could die in one of the permit spaces. Among other things, the manager stated that the defendant failed to obtain the requisite harness and retrieval devices for permit spaces and failed to implement a rescue procedure that conformed to OSHA's requirements. Plaintiff also obtained the opinion of a professional engineer, who contended that the defendant deliberately provided information to OSHA indicating that it was addressing each of the violations, but it did not follow through. The expert concluded that the decedent's death resulted from the defendant's intentional decision not to address the violations identified by OSHA as serious.
The Appellate Division affirmed the trial court's decision. 342 N.J. Super. 65 (2001). The court found that the OSHA citations made the defendant aware of the risk of injury. The court held, however, that the evidence did not support a finding that the defendant knew with substantial certainty that an injury would occur, particularly when there was no evidence of prior accidents involving a material man. This Court granted plaintiff's petition for certification and summarily remanded the matter to the Appellate Division for reconsideration in light of Laidlow v. Hariton Mach. Co., 170 N.J. 602 (2002). In its second reported decision, the Appellate Division held that Laidlow did not alter its prior analysis. 350 N.J. Super. 313 (2002).
HELD: Summary judgment was improperly granted in this matter. Based on defendant's conduct in respect of citations issued against it by OSHA, a jury reasonably could conclude that the defendant had knowledge that its actions were substantially certain to result in the injury or death of one of its emp loyees.
1. In Millison v. E.I. du Pont de Nemours & Co., the Court discussed the meaning of "intentional wrong," as referred to in N.J.S.A. 34:15-8, and it determined that "the mere knowledge and appreciation of a risk--something short of substantial certainty--is not intent." The Court explained that in applying the "substantial certainty" standard, courts must determine whether a virtual certainty of injury or death existed (the conduct prong), but they must consider also the context in which the conduct takes place, i.e., whether the injury or death and the circumstances around it fairly may be viewed as a fact of industrial life, or rather, whether they are plainly beyond anything the legislature could have contemplated as entitling the employee to recover only under the Compensation Act (the context prong). (Pp. 12-13).
2. In Laidlow, the Court emphasized that an intentional wrong is not limited to actions taken with a subjective desire to harm. It includes instances where an employer knows that the consequences of those acts are substantially certain to result in such harm. In order for an employer's act to lose the cloak of immunity under N.J.S.A. 34:15-8, both the conduct and context prongs established in Millison must be proved. The conduct prong ordinarily is to be determined by the jury, while the context prong is a question of law for the court. The absence of a prior accident does not preclude a finding of an intentional wrong. Instead, reports of prior accidents and close calls are evidence to be considered. The Court noted also in Laidlow that it was not establishing a per se rule that an intentional wrong has been committed whenever an employer violates an OSHA regulation. (Pp. 13 to 17).
3. Here, the Court finds first that the trial court improperly granted summary judgment without permitting the plaintiff to complete discovery. Because the plaintiff pursued this discovery in relation to another count of the complaint, plaintiff developed highly relevant evidence to the determination whether the defendant had knowledge of a substantial certainty of injury or death resulting from the safety hazards. In part, that evidence shows that the defendant deliberately failed to correct the violations and intentionally deceived OSHA into believing that it had abated the violations. A jury could conclude that the defendant evidenced by its deception an awareness of the virtual certainty of injury that would result from its failure to correct the safety hazards. Based on a totality of the circumstances, the substantial certainty prong of the Millison test was satisfied. (Pp. 17 to 19).
4. Similarly, plaintiff has satisfied the context prong of the Millison test because the defendant, contrary to OSHA's order, maintained the safety hazards that ultimately caused decedent's death and it deliberately deceived OSHA into believing that the violations had been corrected, thereby precluding OSHA from carrying out its mandate to protect workers. The Court is persuaded that the Legislature never intended such conduct to constitute a part of everyday industrial life and would not expect it to fall within the Workers' Compensation bar. Consequently, summary judgment was improperly granted. (Pp. 19 to 20).
The judgment of the Appellate Division is REVERSED and the matter is REMANDED to the Law Division for trial.
JUSTICE VERNIERO, concurring, joined by JUSTICE LaVECCHIA, joins in the Court's opinion based on plaintiff's allegation that the defendant attempted to deceive federal regulators into believing that it abated certain safety violations prior to the date of decedent's death. If the jury finds, however, that the deception is not proven, he believes this case falls short of clearing the Workers' Compensation bar.
JUSTICE ZAZZALI, concurring, recommends abandonment of the context prong in Millison. He believes that the knowing exposure of an employee to almost certain harm should never be dismissed as a fact of life.
CHIEF JUSTICE PORITZ and JUSTICE ALBIN join in JUSTICE COLEMAN's opinion. JUSTICE VERNIERO filed a separate concurring opinion in which JUSTICE LaVECCHIA joins. JUSTICE ZAZZALI filed a separate concurring opinion. JUSTICE LONG did not participate.
The opinion of the court was delivered by: Coleman, J.
[NOTE: This is a companion case to Tomeo v. Thomas Whitesell Construction Co., Inc., and to Mull v. Zeta Consumer Products, also decided today.]
The critical issue in this appeal is whether an employer's conduct in failing to cure hazardous conditions in violation of a directive issued by the U.S. Department of Labor, Occupational Safety & Health Administration (OSHA), coupled with its intentional deception of OSHA, constitutes an "intentional wrong" under the exclusive remedy provision of the Workers' Compensation Act, N.J.S.A. 34:15-8. Based on this Court's holding in Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 161 (1985), the trial court dismissed the common-law tort claim against the employer. The Appellate Division affirmed, and upon reconsideration after our decision in Laidlow v. Hariton Machinery Co., 170 N.J. 602 (2002), the Appellate Division reaffirmed the trial court's decision to dismiss plaintiff's intentional tort claim on summary judgment. Crippen v. Central Jersey Concrete Pipe Co., 350 N.J. Super. 313 (2002). We disagree and reverse.
This wrongful death case arises out of a workplace accident that caused the death of Harold Crippen. On June 6, 1998, Crippen was working as a "material man" in the course of his employment with defendant Central Jersey Concrete Pipe Company at its plant in Farmingdale. As a "material man," Crippen was responsible for controlling the movement of sand and gravel into loading hoppers located in an elevated shed referred to as the change-over room. Each hopper is about seventeen-feet deep and measures eight feet by ten feet. In order to activate the lever and regulate the inflow of sand or gravel, Crippen had to walk on a single two-inch by ten-inch wooden plank and stand on a six-foot high, unsecured ladder that rested on the wooden plank. That process consumed less than two minutes and was performed approximately ten times a day. On the day of the accident, while performing those duties, Crippen fell into the sand hopper and suffocated. Crippen's body was discovered buried in the sand when a co-worker released sand from the chute at the bottom of the hopper.
On January 22, 1999, Annabelle Crippen, Administratrix ad Prosequendum and General Administratrix, filed a wrongful-death complaint against Crippen's employer. The complaint alleges that the accident was caused by the willful and wanton actions on the part of defendant, and as a result, the claim falls within the intentional wrong exception to N.J.S.A. 34:15-8.
N.J.S.A. 34:15-8, commonly referred to as the "exclusive remedy provision," provides:
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, ...