On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. CAM-L-9094-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 11, 2007
Before Judges Skillman and Yannotti.
Plaintiff Sheldon Norwood appeals from orders entered by the Law Division on May 26, 2006, which granted summary judgment in favor of defendants Genesis Logistics, Inc. (Genesis); Tibbett & Britten Group of North America, Inc. (Tibbett); Exel; Jean Coleman (Coleman); and William Hansen (Hansen), and dismissed plaintiff's claims with prejudice. For the reasons that follow, we affirm the grant of summary judgment to defendants but modify the orders to provide for the dismissal of plaintiff's claims without prejudice to their reinstatement, in the event that the Division of Workers' Compensation (Division) determines that the claims are not compensable under the Workers' Compensation Act, N.J.S.A. 34:15-1 to -128 (the Compensation Act).
In May 2004, plaintiff and Jerome Williamston (Williamston) were employed as truck drivers by Genesis, an entity that provides trucking and related services to other companies. At the time, Coleman was employed by Genesis in a supervisory or management capacity, and Hansen was employed as a truck driver and in a supervisory capacity. On May 15, 2004, Williamston stabbed plaintiff with a seven-inch knife, allegedly causing plaintiff to sustain serious and permanent injuries. Plaintiff alleges that the assault occurred on Genesis' premises, during the course of his employment.
On October 19, 2005, plaintiff filed a four-count complaint in the Law Division against Genesis, Tibbett, Exel, Coleman and Hansen.*fn1 Plaintiff alleges that in or about 1998, while employed by Genesis, Williamston assaulted a co-worker, using a metal object as a weapon. According to plaintiff, at the time of this assault, both Coleman and Hansen were working for the company. Genesis terminated Williamston because of his participation in the assault. Plaintiff claims that Coleman and Hansen both knew about the incident. In or about 2000, Genesis re-hired Williamston. Plaintiff alleges that Genesis, Coleman and Hansen knew that Williamston was suffering from certain emotional, psychological, and substance abuse problems.
According to the complaint, sometime after Genesis re-hired Williamston, he assaulted plaintiff. As a result, Genesis suspended both Williamston and plaintiff for one day. Plaintiff claims that after this incident, Williamston's co-workers "taunted and agitated" Williamston concerning the assault and what plaintiff says was its "lack of success." Plaintiff alleges that Hansen participated in "taunting and agitating" Williamston, and Williamston "repeatedly told" Hansen and his co-workers that he "would settle the score or otherwise retaliate against plaintiff." Plaintiff asserts that Genesis had actual or constructive knowledge of the "danger" that Williamston posed to plaintiff.
In the first three counts of his complaint, plaintiff asserts claims against Genesis, Coleman and Hansen, respectively. Plaintiff alleges that each of these defendants was negligent because they failed to: 1) take "precautionary measures to preclude" Williamston from encountering plaintiff on Genesis' property; 2) provide adequate security; 3) require Williamston to participate in counseling; 4) discipline, admonish, counsel and advise Genesis' employees about the "taunting and agitating" of Williamston; 5) advise plaintiff of Williamston's threats; and 6) "exert reasonable and adequate supervisory authority" over Genesis' personnel.
In the fourth count of the complaint, plaintiff alleges that defendants' actions were "outrageous, reckless, grossly negligent, complicit and/or [willful]." He claims that defendants' actions and inaction "fostered the atmosphere" in which Williamston's May 15, 2004 assault upon plaintiff "became a virtual certainty." Plaintiff asserts that defendants' conduct "was the substantial equivalent [to] intentional behavior."
In April 2006, Genesis moved for summary judgment, arguing that plaintiff's claims were barred by the exclusive remedy provision in N.J.S.A. 34:15-8. In their statement of material facts, Genesis asserted, among other things, that plaintiff's lawsuit arose from injuries sustained by plaintiff during the course of his employment with Genesis. At or about the same time, Coleman and Hansen also moved for summary judgment.*fn2 In their moving papers, Coleman and Hansen argued that because they were plaintiff's co-workers at the time of the assault, plaintiff's claims against them also were barred by N.J.S.A. 34:15-8.
Plaintiff opposed the motions. In a certification dated May 8, 2006, plaintiff's attorney noted that three of the counts in the complaint asserted claims of negligence; however, the fourth count included a claim that defendant's conduct was "intentional behavior" that created a "virtual certainty" that Williamston would assault plaintiff. Counsel stated that while the workers' compensation exclusivity bar in N.J.S.A. 34:15-8 may require dismissal of the first three counts of the complaint, dismissal of the fourth count was not warranted because the "intentional wrong" exception in the statute applied.
In addition, plaintiff filed a supplemental certification, dated May 23, 2006, in which he stated that it was "amazing" that Genesis had taken the position that his claims were compensable under the Compensation Act. Plaintiff appended to his certification a letter from Genesis' compensation carrier, which had denied coverage, based on its view "that there was neither a specific accident nor any medical evidence that the injury is causally related to the worker[']s employment." Plaintiff asserted that he could "only imagine" that if the court were to dismiss his claims, Genesis would take the position in the Division that his claims were not compensable.
Plaintiff also submitted a certification dated May 24, 2006 from Victor Rivera (Rivera), who was one of his co-workers. Rivera asserted that before Williamston stabbed plaintiff, he was present on "various occasions" when Hansen and other employees "taunted and harassed Williamston about the previous encounter between Williamston and [plaintiff] and ...