On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-1581-04 (A-0928-06T3); Department of Labor and Workforce Development, Case No. 2006-19596 (A-5274-06T3).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, Grall and Chambers.
Bryan Williams appeals from a judgment of the Division of Workers' Compensation (Division) dismissing his petition for compensation for an occupational disease he contracted while employed by Parkway Motors of Leonia, Inc. (Parkway). He and his wife, Myrna Williams, appeal from a judgment of the Law Division dismissing their common-law claims against Parkway and a motion for reconsideration of that final order.*fn1 We consolidate the appeals, affirm the Law Division's grant of summary judgment in favor of Parkway, modify the order of dismissal and transfer Mr. Williams' claim to the Division. The transfer moots Mr. Williams' appeal from the judgment dismissing his petition for workers' compensation.
Except in cases where an employee can establish that a workplace injury or illness is a result of the employer's "intentional wrong," workers' compensation is the employee's exclusive means of recovering damages for such harm from the employer. N.J.S.A. 34:15-8; Laidlow v. Hariton Machinery Co., Inc., 170 N.J. 602, 605-06 (2002). The question on this appeal is whether the evidence of Parkway's conduct under the circumstances was adequate to establish an "intentional wrong." See id. at 622-23; see also Crippen v. Central Jersey Concrete Pipe Co., 176 N.J. 397, 405-11 (2003).
An employer's conduct qualifies as an "intentional wrong" within the meaning of N.J.S.A. 34:15-8 if: "(1) the employer [knows] that his actions are substantially certain to result in injury or death to the employee"; and "(2) the resulting injury [and the circumstances of its occurrence are] (a) more than a fact of life of industrial employment and (b) plainly beyond anything the Legislature intended" to address within the limits of the Workers' Compensation Act, N.J.S.A. 34:15-1 to -142. Laidlow, supra, 170 N.J. at 617 (explaining Millison v. E.I. Du Pont de Nemours & Co., 101 N.J. 161, 179 (1985)); see Crippen, supra, 176 N.J. at 409-11. Our courts refer to the first prong of the test as the "conduct" or "substantial certainty" prong and to the second prong as the "context" prong. See Crippen, supra, 176 N.J. at 406-07; Laidlow, supra, 170 N.J. at 614-15; cf. Crippen, supra, 176 N.J. at 413 (Zazzali, J., concurring) (recommending abandonment of the "context prong" of this test).
On an employer's motion for summary judgment based on the absence of "intentional wrong," the trial court must first determine whether a jury could conclude that the "substantial certainty" prong is established. That determination requires the court to consider whether the evidence, viewed in the light most favorable to the employee, is adequate to permit the jury to find that the "employer acted with knowledge that it was substantially certain that a worker would suffer injury." Laidlow, supra, 170 N.J. at 623. If the plaintiff's evidence on the "substantial certainty" prong is inadequate, the court need not address the "context prong." See ibid. This court applies the same standards on appeal. See Fisher v. Sears, Roebuck & Co., 363 N.J. Super. 457, 461-62 (App. Div.), certif. denied, 179 N.J. 310 (2003).
On the motion for summary judgment, Parkway did not dispute the injury Mr. Williams alleged -- occupational disease from exposure to toxins. Mr. Williams has been diagnosed with toxic encephalopathy, a cluster of symptoms -- such as dizziness, behavioral mood changes, respiratory distress, cognitive deficits and impact on the nervous system -- attributable to exposure to toxins. He left his job with Parkway in June 2003.
Mr. Williams started working in Parkway's auto body shop in 1997. He was a welder but also did some grinding, sanding, priming and painting. The body shop was equipped with a "spray booth," but priming and painting was also done outside the booth. In 2000, Mr. Williams noticed that when he was working in the shop, he became dizzy and felt as if his head were "puffing up." The symptoms diminished when he left the shop on break but returned when he reentered the shop.
In February 2001, Mr. Williams wrote a letter to his shop manager to report that the paint and primer were making him sick. On the day that letter was received, management called a meeting of all of the employees. According to Williams, he and his co-workers were told that "as of this minute now every car ha[s] to be primed and paint[ed] inside the spray booth. Everybody ha[s] to do it as of now. Anybody who refuse[s] to do it, [will] be sent home. Anybody that cause[s] painting or priming a car in the working are[a] as of now, they [are] going to be sent home for the rest of the day."
The ban on painting outside the spray booth was relaxed on the day it was issued. An employee complained that there was no space available in the spray booth to paint the inside of a car door. After directing Mr. Williams to go outside, the supervisor allowed the employee to do the job in a corner of the shop near the spray booth. According to Williams, for an unspecified period of time thereafter, Williams was asked to leave when others painted outside the spray booth. Subsequently, any painting done in areas other than the spray booth was completed either before Williams came to work, during his lunch breaks, or after he left work. Williams saw that cars ready for painting when he left work had been painted by the time that he returned. The placement and position of the cars, which Mr. Williams had marked with chalk before leaving, was the same when he left and when he returned. He could smell paint and sometimes see fumes or vapors in the air.
Mr. Williams produced photographs of several cars that were painted in areas of the shop outside the spray booth -- a Toyota 4 Runner in January 2002 and a Honda Civic in spring 2002. The Honda Civic was painted while Mr. Williams was in the body shop working on another car. The Toyota was painted while he was out of the shop on lunch break. He also had a photograph of the radiator of a car that he painted in the shop.*fn2
Parkway gave Mr. Williams and his co-workers respirators to wear in the shop. Mr. Williams did not recall whether he had been given the respirator before or after he wrote his letter of complaint in February 2001. The filters for the respirators were kept in a closet that was accessible ...