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Fisher v. Sears

October 27, 2003

ROBERT L. FISHER, SR. AND LORETTA FISHER, ADMINISTRATOR AND ADMINISTRATRIX AD PROSEQUENDUM AND GENERAL ADMINISTRATORS OF THE ESTATE OF ROBERT L. FISHER, JR., PLAINTIFFS-APPELLANTS,
v.
SEARS, ROEBUCK & CO., A NEW YORK CORPORATION, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-3689-98.

Before Judges Newman, Fall and Parrillo.

The opinion of the court was delivered by: Parrillo, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 14, 2003

Plaintiffs Robert L. Fisher, Sr., Administrator, and Loretta Fisher, Administratrix ad Prosequendum, and General Administrators of the Estate of Robert L. Fisher, Jr., appeal from entry of an order on December 12, 2001, granting summary judgment in favor of defendant Sears, Roebuck & Co. (Sears or defendant), dismissing their wrongful death action. In this appeal, we are once again asked to determine whether the exclusive-remedy provision of the workers' compensation statute, N.J.S.A. 34:15-8, bars plaintiffs from filing a common law tort action against decedent's employer. This time, however, the incident giving rise to the cause of action did not occur in the typical industrial-manufacturing setting, but rather in the parking lot of a Sears store where decedent was killed by two armed robbers while transporting $7000 in cash proceeds from one facility to another within defendant's Hackensack complex.

On review of this summary judgment determination, we view the facts in a light most favorable to plaintiff. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). They may be briefly stated. Decedent was an"asset protection associate" employed by defendant at its store located in Hackensack. The Hackensack facility actually consists of three separate detached structures - two outlying buildings and the main store. During the evening of April 19, 1996, at the close of business and as part of his job duties, decedent locked up one of the outlying buildings and carried a locked metal toolboX containing the day's monies and receipts to his car for further transport to the main building, its final destination. His car was parked only a few feet from the door of the building he was leaving, in what plaintiffs describe as a dimly lit parking lot separating the three buildings. En route to his car, decedent was accosted by two armed assailants. A struggle ensued for the toolbox during which decedent was fatally shot.

At the time of this incident, there was a corporate directive in effect regarding on-site transfers of funds at Sears facilities consisting of more than one building, in the northern New Jersey region. This regional directive restricted the collection and transportation of monies between buildings to morning hours and in the presence of two"asset protection" or security guards. Sears also had a longstanding national policy that its asset protection employees were not permitted to carry firearms in the course of their employment.*fn1

For at least six months prior to the incident, Sears' Hackensack facility had not implemented this regional directive. Instead, during this time, defendant's asset protection employees collected and transported store proceeds alone and at nighttime hours. Apparently this practice of transferring funds at the close of business rather than the following business day continued in an effort to stem unresolved shortages of money left overnight in the outlying buildings. While this practice remained in effect, no complaints or objections were voiced and no incidents, save for decedent's, were reported. In fact, prior to this incident, there were no reports of murders, rapes, robberies or similar violent crimes at Sears Hackensack property or in the area immediately surrounding the store.*fn2 Plaintiffs were able to refer to only two incidents, both remote in time, place and circumstance to that involving decedent. One concerned a purse snatching at Sears' Staten Island facility and another, a fatal shooting of an employee of Sears' Bergenfield store over eight years before decedent's incident and occurring outside her home in New Milford. In any event, there was no evidence that personnel at the Hackensack facility were aware of either incident.

As a result of decedent's homicide, his estate filed a Workers' Compensation Dependency Claim Petition against defendant on behalf of decedent's two year old son. On June 9, 1997, an order was entered by the Workers' Compensation Board approving an award of full benefits, which Sears has been paying and is ordered to pay until decedent's son reaches eighteen years of age. On April 17, 1998, plaintiffs, on behalf of decedent's estate, filed this wrongful death lawsuit in the Law Division against Sears and other defendants*fn3, alleging that:

Having actual knowledge of the dangerousness of the activity being undertaken, having actual and constructive knowledge of the high incidence of crime in the particular area, having actual knowledge of the risk in conducting such an activity, and having actual knowledge of the probability that such an unorthodox procedure in transporting cash would ultimately result in a criminal encounter, the Defendant, Sears, nonetheless violated its own policy of requiring two store personnel to transport cash. By thus compelling Robert L. Fisher, Jr. on the night of April 19, 1996 to transport such sums of money without being armed and alone, constitutes deliberate actions on the part of Defendant, Sears, and the same was a proximate cause of the crime committed against Decedent, Robert L. Fisher, Jr.

Plaintiffs thereby contended that defendant's conduct fell within the"intentional wrong" exception to the exclusive remedy provision of the New Jersey Workers Compensation Act (Act), N.J.S.A. 34:15-8, which provides that:

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 injured or killed, except for intentional wrong.

[N.J.S.A. 34:15-8 (emphasis added).]

After completion of full discovery, defendant moved for summary judgment on the basis of the Act's exclusivity provision, maintaining that its conduct did not amount to ...


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