The opinion of the court was delivered by: Irenas, Senior District Judge
Plaintiff, Roberto Torres, brings this personal injury / product liability suit against his former employer, Lucca's Bakery, and the distributor and manufacturer of the bakery equipment that severely injured him, Gemini Bakery Equipment Company ("Gemini") and Oshikiri Corporation of America ("Oshikiri"), respectively. Before the Court are each Defendant's Motion for Summary Judgment.*fn1
Lucca's Bakery is a family-owned and operated commercial bakery located in Winslow, New Jersey. In July 2002, Anthony Lucca hired Torres to prepare bread dough. While at work on August 9, 2002, Torres gravely injured his right arm when it became caught in a machine used to prepare dough.
Torres and another employee, George Crowder, were stationed at a machine identified as "Oshikiri Model 'MG-1' (32") Roll Line." (Pl. Ex. Y) The machine prepares raw bread dough into individual unbaked rolls that are deposited onto 18 by 26 inch wooden boards (several rolls to a board) and then transported down a conveyor belt. (Pl. Exs. H, J; Def. Lucca's Bakery Ex. S; A. Lucca Dep. Tr. at p. 34-37; Crowder Dep. Tr. at p. 18-21) At the end of the conveyor, a person manually picks up the boards carrying the rolls and places the boards in racks. (Id.) The boards are approximately one to three inches apart from each other as they move along the conveyor belt. (Pl. Exs. H; M. Lucca Dep. Tr. at p. 16; Torres Dep. Tr. at p. 50) The conveyor does not run continuously; it runs in cycles, stopping for approximately four seconds before moving each board along. (Pl. Ex. H, J; Crowder Dep. Tr. at p. 26)
Importantly, the conveyor is made up of two parallel chains and metal cross bars, called "flights," forming a ladder configuration (i.e., the flights correspond to the rungs of the ladder). (Pl. Ex. H, I) The flights are 28 inches apart. (Def. Gemini's Ex. K at p. 2) Between the flights is open space where one can see directly to the floor below. (Pl. Ex. H; Def. Lucca's Bakery Ex. S) The conveyor is advanced forward by a "tail pulley" mechanism at the end of the conveyor line. (Pl. Exs. H, I; Def. Lucca's Bakery Ex. S) The wooden boards rest on the flights as they are propelled forward by the pulley mechanism moving the chains.
On the day of the accident, Torres was standing next to the conveyor. He arranged by hand the unbaked rolls that were deposited onto the boards as the boards moved along the conveyor. (Crowder Dep. Tr. at p. 9-12, 18-21; Torres Dep. Tr. at p. 23-24, 49-51) Crowder was standing at the end of the conveyor to pick up the boards and load them onto racks for baking. (Crowder Dep. Tr. at p. 18; Torres Dep. Tr. at p. 51) Torres was still a new employee at the time, and the parties do not dispute that he had only worked with the machine three to five times before. (Torres Dep. Tr. at p. 22) Torres and Crowder were the only people in the room.
Torres testified that he could not remember how he was injured, as it happened very quickly. (Torres Dep. Tr. at p. 29, 52). Crowder testified that he saw Torres repeatedly reaching his hand and arm through the open spaces between the conveyor flights to pick up pieces of dough that had fallen to the floor below. (Crowder Dep. Tr. at 24) Torres flatly denies ever reaching into the machine. (Torres Dep. Tr. at 43)
There is no direct evidence in the record as to how Torres' arm initially came in contact with the machine. One of Torres' experts testified that he inferred from examining the machine and the location of Torres' injuries that Torres' forearm was the first point of contact with the machine. (Clauser 1/26/07 Dep. Tr. at p. 81) Clauser's report also explains:
Examination of the conveyor and Mr. Torres's arm together with descriptions of the incident by Mr. Torres and his employer made during my inspection show that he was injured when his arm was trapped between the conveyor flight and the tail pulley shaft. When the conveyor automatically advanced, the flight initially moved horizontally toward the discharge end of the conveyor. In doing so the flight contacted Mr. Torres's arm and moved it toward and against the shaft of the tail pulley. As the flight traveled around the tail pulley with the conveyor it pulled Mr. Torres's shoulder downward. His upper arm then contacted a fixed cross member in the conveyor frame located on the top surface beyond the tail pulley. At this point the moving cross flight imposed a three point bending load on Mr. Torres's arm and severely injured it.
(Pl. Ex. I) Torres suffered a near amputation of his arm in the accident and endured several surgeries afterwards. (Pl. Exs. G, N) One of the doctors who examined him concluded that he has "for all practical intent and purposes, lost the use of his right arm." (Pl. Ex. G)
Because of the accident, Torres now receives workers' compensation benefits. (Torres Dep. Tr. at 14)
The Complaint asserts one tort claim against Lucca's Bakery, essentially alleging that Lucca's Bakery committed an "intentional wrong," which resulted in Torres' injury (Count I of the Complaint).*fn2 The Complaint also alleges product liability claims against Oshikiri, the manufacturer of the machine, asserting negligence (Count II); strict liability (Count III); and breach of implied warranties of merchantability and fitness (Count IV). These same claims are also advanced against Gemini, the distributor of the machine (Counts V, VI and VII).
"[S]ummary judgment is proper 'if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed. R. Civ. P. 56(c))). In deciding a motion for summary judgment, the Court must construe the facts and inferences in a light most favorable to the non-moving party. Pollock v. Am. Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3d Cir. 1986). "'With respect to an issue on which the non-moving party bears the burden of proof, the burden on the moving party may be discharged by 'showing'-- that is, pointing out to the district court -- that there is an absence of evidence to support the nonmoving party's case.'" Conoshenti v. Public Serv. Elec. & Gas, 364 F.3d 135, 145-46 (3d Cir. 2004) (quoting Celotex). The role of the Court is not "to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
Lucca's Bakery moves for summary judgment, asserting that Torres' claim is barred by New Jersey's Workers' Compensation Act, N.J.S.A. § 34:15-8, which states, . . . 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.
The New Jersey Supreme Court has provided specific guidance on how to approach this issue:
[W]hen an employee sues an employer for an intentional tort and the employer moves for summary judgment based on the Workers' Compensation bar, the trial court must make two separate inquiries. The first is whether, when viewed in a light most favorable to the employee, the evidence could lead a jury to conclude that the employer acted with knowledge that it was substantially certain that a worker would suffer injury. If that question is answered affirmatively, the trial court must then determine whether, if the employee's allegations are proved, they constitute a simple fact of industrial life or are outside the purview of the conditions the Legislature could have intended to immunize under the Workers' Compensation bar. Resolving whether the context prong . . . is met is solely a judicial function. Thus, 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; if not, it should be granted.
Laidlow v. Hariton Machinery Co., Inc., 170 N.J. 602, 623 (2002).*fn3 The two prongs of the analysis are generally referred to as the "conduct" and "context" prongs respectively. Crippen, 176 N.J. at 408. The Court's disposition must be "grounded in the totality of the facts contained in the record." Laidlow, 170 N.J. at 623.
Viewing the disputed facts in the light most favorable to Torres, he has not put forth sufficient evidence from which a reasonable juror could conclude that Lucca's Bakery acted with knowledge that it was substantially certain that Torres would be injured. The machine was purchased in 1994. Between that date and 2002, when Torres was injured, only two other employees*fn4 suffered relatively minor injuries on the machine. Sometime between 1996 and 1998, Patrick DeVries suffered "just cuts and bruises" on his arm after he intentionally reached down between the conveyor flights. (DeVries Dep. Tr. at 10-11)*fn5 In 1998, Geraldo Reyes also injured his arm when he slipped and fell into the machine.*fn6 (Pl's Ex. E) Reyes broke his left arm and required a cast. (Id.)*fn7
Torres has also put forth evidence that Lucca's Bakery failed to train him, and specifically failed to instruct him in Spanish (the only language in which he is fluent) how to properly use the machine. (See Def. Lucca's Bakery Ex. P; Torres Dep. Tr. at 29-31, 34, 45) This evidence, however, even when considered in light of the two previous injuries, cannot support the conclusion that Lucca's Bakery acted with knowledge that Torres' injury was substantially certain to happen. "[S]ubstantial certainty needs to be 'virtual certainty.'" Tomeo, 176 N.J. at 371 (quoting Millison v. E.I. duPont de Nemours & Co., 101 N.J. 161, 178 (1985)). Even acting with an appreciation that the risk of harm to another is great-- a conclusion which could not be supported by these facts alone-- is not the requisite level of "intent" to impose liability under the Worker's Compensation statute. Id. Accordingly, summary judgment will be granted to Lucca's Bakery.
Before turning to the merits of Gemini's and Oshikiri's Motions, a choice of law analysis is warranted. Torres asserts that Pennsylvania law should govern his product liability claims, while Gemini and Oshikiri assert that New Jersey law should apply.*fn8
Sitting in diversity, this Court applies the choice of law provisions of New Jersey. Woessner v. Air Liquide, Inc., 242 F.3d 469, 472 (3d Cir. 2001). New Jersey courts apply the governmental-interest analysis: (1) determine whether a conflict exists between the laws of the interested states and (2) identify the governmental policies underlying each law and examine how those policies are affected by each ...