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Whitten v. Sybron Chemicals

August 22, 2007

DAVID WHITTEN AND CHARMAINE WHITTEN, HIS WIFE, PLAINTIFFS-APPELLANTS,
v.
SYBRON CHEMICALS, INC., DEFENDANT-RESPONDENT, AND BAYER CHEMICALS, INC., DEFENDANT.



On appeal from the Superior Court of New Jersey, Law Division, Burlington County, L-1796-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted August 14, 2007

Before Judges S.L. Reisner and Lyons.

Plaintiffs David and Charmaine Whitten appeal from a trial court order dated September 13, 2006, dismissing their complaint against defendant Sybron Chemicals, Inc. (Sybron) for workplace injuries suffered by David Whitten.*fn1

I.

Sybron, a chemical manufacturing company, hired Myers Maintenance (Myers) to work on Sybron's plant, including its tanks. Plaintiff, a foreman employed by Myers, was injured in a fall from a ladder while repairing a piece of machinery inside a sludge tank owned by Sybron. According to plaintiff, Sybron employees had pumped the sludge out of the tank twice before he started his work, but on the day he was scheduled to work in the tank, he noticed that there were still a few inches of sludge in the center of the tank. After asking the Sybron employees to remove the sludge, and being told that they had done the best they could and that they wanted to "go with it," plaintiff entered the tank and started work. According to plaintiff, he walked through the sludge before he started climbing the ladder to work on the machinery in the tank, and the sludge on his boots caused him to slip off the ladder.

The owner of Myers testified at his deposition that his company performed maintenance on a vast variety of different industries. This included "a lot of pipe work. We do wastewater treatment plants." His employees were given extensive safety training and were instructed that "the various plants have various hazards. . . . If you're working in a roofing manufacturer there is asphalt which is hot. If you're working in a chemical plant there are chemicals. Some could be acidic or caustic." The owner also instructed his employees that if they felt any workplace was unsafe in any respect they should report that to their foreman or directly to him. Sybron also gave a safety orientation to the employees of all independent contractors working at its plant, although its materials made clear that the independent contractors were responsible to ensure the safety of their own employees.*fn2

On the day of the accident, Whitten observed some sludge in the tank. Sybron employees told him that "This is the best we can get." He also admitted that he could have refused to go into the tank if he felt it was not safe; he could have insisted that Sybron clean out the tank completely if he felt it was not safe. However at a later point in his deposition he testified that he did not feel that he could refuse to do the work unless the tank was cleaned out, because he "was under the gun to get the job done." He said that he did not want his company to "lose the work" and he would not get paid for the day if he did not work. However, he also admitted that he did not recall anyone from Myers or from Sybron talking to him about "the timing of the completion of the job." He also admitted that he knew he had walked through sludge and that it was slippery, but he did not try to remove it from his boots or ask one of his fellow employees to go back to his work truck to get his spare pair of work boots before he started climbing the ladder.

Sybron's Safety Regulations for Outside Contractors provided that a confined space permit is "required when any worker must enter a confined space. Any confined space must be tested, cleaned, ventilated and purged." Sybron required Myers' employees to sign a confined space permit before working in the tank. Accordingly, before plaintiff entered the tank, plaintiff signed a permit attesting that the tank had been cleaned as much as possible.

Joseph Marzilli, a Sybron manager, testified that it was possible to remove all of the sludge from the tank, through a process lasting several days. However, he did not testify that Sybron agreed with Myers that there would be no sludge in the tank when Myers' employees were working in the tank. Nor was there testimony from any other witness that Sybron had agreed to completely remove all sludge from the tank before Myers' employees began working in it.

Relying on Wolczak v. National Electric Products Corp., 66 N.J. Super. 64 (App. Div. 1961), the trial judge concluded that since plaintiff worked for an independent contractor, and since the presence of sludge in the tank was a known and visible hazard which was "incidental to the very work [plaintiff was] hired to perform," Sybron had no duty to ensure plaintiff's safety with respect to that work place hazard.

II.

Our review of a trial court's grant of summary judgment is de novo, using the Brill standard used by the trial court. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Applying that standard we conclude that there were no ...


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