On appeal from Superior Court of New Jersey, Law Division, Gloucester County, L-600-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 4, 2007
Before Judges Payne and Messano.
Plaintiff, Willard E. Applegate, Jr., a former employee of defendant, Arch Aluminum & Glass, Inc., together with his wife, Loretta J. Applegate, suing per quod, appeal from an order of summary judgment entered against them on their amended complaint against Arch. In that complaint, Applegate, a known diabetic, alleged injury as the result of Arch's decision to request Applegate's adult son to pick up his father, who had become ill at work, rather than to summon an ambulance by calling 911, "with full knowledge that it was substantially certain Willard would suffer injury," thereby "precluding the workmans compensation bar to a tort action." Applegate additionally alleged that Arch's failure to provide him with proper assistance constituted discrimination against the handicapped in violation of law.
On appeal, Applegate makes the following arguments:
I. THE DEFENDANT-EMPLOYER COMMITTED AN INTENTIONAL WRONG WHEN IT REFUSED AND FAILED TO CALL 911 THEREBY OVERCOMING THE WORKER'S COMPENSATION BAR OF N.J.S.A. 34:15-8.
II. THE DEFENDANT-EMPLOYER FAILED TO ACCOMMODATE WILLARD E. APPLEGATE, JR., A JUDICIALLY DETERMINED HANDICAPPED EMPLOYEE MAKING THE DEFENDANT-EMPLOYER LIABLE TO WILLARD E. APPLEGATE, JR., UNDER THE NEW JERSEY LAW AGAINST DISCRIMINATION (LAD), N.J.S.A., SECTION 10:5-1, ET SEQ.
The evidence submitted in connection with Arch's motion for summary judgment demonstrated that Applegate fell ill at work on July 12, 2002. He had been diagnosed as a Type I diabetic at the age of four, and he had commenced to use an insulin pump for the treatment of his condition five years before the incident at issue. Applegate's employer, Arch, was aware of his diabetic condition and his use of an insulin pump. Arch was also aware that, as the result of his condition, Applegate would on occasion need to take unscheduled breaks in order to eat. Applegate does not allege any failure on Arch's part to accommodate him in this regard.
According to an internal Arch memorandum, on March 7, 1997, while employed at Arch's Pennsauken facility, Applegate "went into a diabetic coma/passed out-and stared into space." Paramedics, responding to Arch's 911 call, checked Applegate's blood sugar level and administered glucose. Applegate refused to be taken to the hospital, stating that "this has happened before and that he would be fine." He drove himself home approximately two hours later. Testimony regarding this incident disclosed that, at the time, Applegate had appeared disoriented, recognized the cause of his disorientation, and had eaten a Tastykake prior to the arrival of emergency personnel.
Applegate was later transferred to Arch's Bridgeport facility. On July 12, 2002, Applegate clocked in at Bridgeport at 7:40 a.m. Several hours later, he fell ill and vomited. Upon his return to work, Applegate's supervisor, Matt McGowan, observed that Applegate was ill, informed the plant manager, Steven Tenney, and the two walked Applegate to the plant's lunchroom. According to Tenney, Applegate informed the two men that his symptoms resulted from his diabetes, and after requesting and receiving his lunch bucket, he ate something. Tenney also testified at his deposition that both he and McGowan urged that an ambulance be summoned, but Applegate rejected the suggestion, insisting instead that his son be called. A call was placed at approximately 1:00. However, the son did not leave home until approximately 2:30 p.m., arriving at the plant at approximately 3:00.
During the period before the son's arrival, Applegate remained in the lunchroom. Initially, he was supervised by McGowan and Tenney, but later both returned to work, and Wayne Gallo was summoned to sit with him, where he remained for forty-five minutes to one hour. While Gallo was present, Applegate requested water, ice and a cold towel, all of which were supplied to him by Gallo. There is no evidence that Applegate was ever left alone.
At some point while Applegate and Tenney remained together in the lunchroom, a CPR-trained employee, Carol Wright, entered the room. It was her opinion, based upon Applegate's alleged poor color, lack of responsiveness,*fn1 and sweating, that he was having a heart attack, and that his condition was not attributable to diabetes. She urged that 911 be called, regardless of Applegate's opposition to this course of action. Tenney directed Wright to return to her desk and did not follow her advice, but instead awaited the arrival of the Applegate's son. Wright, who was present in ...