May 30, 2008
ZDZISLAW KRZYZANSKI AND EWA KRZYZANSKI, PLAINTIFFS-APPELLANTS,
SWEPCO TUBE CORPORATION, SWEPCO TUBE, LLC, AND STC ACQUISITION CO., LLC, DEFENDANTS-RESPONDENTS.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-5880-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 7, 2008
Before Judges Lisa, Lihotz and King.
Plaintiff Zdzislaw Krzyzanski*fn1 received benefits pursuant to the Workers' Compensation Act (Act), N.J.S.A. 34:15-1 to -128. This matter is a direct action against Swepco Tube Corporation (Swepco)*fn2 seeking damages beyond those benefits available under the Act. Plaintiff sued his former employer for the intentional infliction of serious bodily injury and the intentional infliction of emotional distress caused by continuous exposure to hazardous material in the workplace. Following discovery, the court dismissed plaintiff's complaint concluding plaintiff was limited to workers' compensation remedies as he failed to prove Swepco committed intentional harm. Plaintiff appeals from the order of summary judgment entered on June 28, 2007. We affirm.
In our review of the summary judgment record, we view the evidence in a light most favorable to plaintiff. R. 4:46-2; Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995). Plaintiff began working at Swepco on March 13, 1987.
He stopped working at the plant in August 2001, after developing serious health conditions, which included colorectal cancer, chronic heavy metal toxicity, chronic fatigue syndrome and depression. Swepco manufactures specialized metal pipe. While employed at Swepco, plaintiff held various positions in the east bay of the production facility. For almost twelve years, plaintiff was a machine operator working with metals, corrosive resistant alloys, stainless steel alloys, and nickel cobalt alloys. Additionally, plaintiff worked with nitric acid and kerosene. He later worked in the receiving department handling steel plates.
The various machines in the east bay emitted fumes, gas, smoke, and dust, which plaintiff states remained in the building at all times because the building had no windows and limited doors. Dean Turner, a former plant supervisor, acknowledged workers were exposed to fumes and dust at the plant. Plaintiff was told by another supervisor, Frank Molina, that dust created a health hazard. Plaintiff asserted his complaints regarding the poor ventilation were ignored. Moreover, he was disciplined for asserting there were too many "pollutants in the air." Turner corroborated that plaintiff had vocalized concerns about smoke and dust and complained about the poor ventilation. Specific changes to diffuse fumes were made in the area of the plasma arc machine after plaintiff voiced an objection to the limited ventilation.
Material Safety Data Sheets (MSDS) accompanying the metals and alloys that plaintiff handled suggested that exposure to unreasonably high levels could "cause cancer." The MSDS were not distributed to the employees, although Swepco maintained they were available. At times, a specific MSDS was discussed during safety meetings in the context of an accident. Also, plaintiff recalled reading "How to Use a [MSDS]" while working at the plant.
Plaintiff maintains he did not receive adequate safety training; during safety meetings, the administration failed to discuss issues of importance; during Occupational Safety and Health Administration (OSHA) inspections, employees shut down those machines that caused the most smoke and dust; OSHA disclosures were not distributed and training was not provided; and the plant had no policy requiring mandatory use of air respirators by plant workers.
Plaintiff's expert, Dr. Brois concluded plaintiff was exposed to carcinogenic chromium and a variety of other heavy metals. This exposure to heavy metals, along with plaintiff's exposure to kerosene without personal ventilation equipment, "induced" his colon cancer.
Former Swepco plant employees corroborated that both smoke and dust were in the plant. Testimony confirmed the ventilation fans were noisy and at times were turned off or broken, and employee complaints about smoke, dust or fumes were ignored. One employee asked for a mask but was told none were available. Swepco does not dispute that fumes, smoke, and dust were created as a result of the plant processes; however, the company asserts it employed numerous safety measures to assure that the levels of hazardous substances did not exceed permissible emission levels.
Swepco documented its adherence to all state and federal safety requirements for the materials handled in the plant. Swepco demonstrated it fully complied with warning labeling requirements for all hazardous products after OSHA's enactment of the requirements in 1986 and plaintiff acknowledged warning labels were affixed to certain products disclosing potential health hazards.
At no time was Swepco cited by OSHA for failure to provide proper training. Victor Battistuz, Swepco's Vice President of Operations, produced documentation verifying the company performed mandated OSHA employee training, including "Right to Know" training for employees. He did not have actual verification that plaintiff participated in the training.
Plaintiff did receive OSHA hazard communication training, watched various safety films, and attended a video demonstrating the use of personal protective equipment. All employees had access to personal protective equipment, however, masks were not mandated and were worn at an employee's option.
Also, plaintiff served as a member of the Safety Committee and had been appointed by the Safety Committee to walk through areas of the plant, make observations and suggest safety improvements. Safety Committee meetings were held regularly.
Although plaintiff asserted management was generally unresponsive to employee complaints about the dust and smoke, Swepco initiated air emission assessments and exhaust fans were installed at each bay. Plant tests of air quality revealed emissions within permissible exposure limits. The fans received a New Jersey Department of Environmental Protection (NJDEP) approval permit in 2001. And additional wall and floor mounted fans were placed throughout the plant.
Swepco disputes plaintiff's assertion that offending machines were shut down during inspections. Swepco was subject to various plant inspections, many of which, including visits by OSHA and the Environmental Protection Agency were unannounced and random. Documentation from spot reviews and voluntary compliance inspections by the NJDEP and the Department of Labor reflects Swepco corrected any noted safety violation.
Finally, Traveler's Insurance Company conducted numerous hygiene surveys, performed "risk assessments" and conducted annual tests regarding the adequacy of ventilation at the plant. When Travelers detected unacceptable levels in the Pickel Area, where employees worked with nitric and hydrofluoric acid, changes were implemented to return the toxins to permissive ranges. Also, Swepco implemented other safety recommendations presented by Travelers.
On appeal, plaintiff seeks reinstatement of his complaint arguing the motion judge improperly made credibility determinations when weighing the sufficiency of the evidence to defeat summary judgment. We use the same standard as the trial court to determine whether summary judgment is warranted pursuant to Rule 4:46-2. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.) certif. denied, 154 N.J. 608 (1998). Our inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Brill, supra, 142 N.J. at 536 (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 251-52, 105 S.Ct. 2505, 2512, 91 L.Ed. 2d 202, 214 (1986)).
For plaintiff to recover outside of the agreed workers' compensation remedies, he must prove Swepco engaged in intentional wrongful conduct to overcome the exclusivity bar precluding an employee's common law action against an employer. N.J.S.A. 34:15-8; Millison v. E.I. DuPont de Nemours & Co., 101 N.J. 161, 174 (1985). As in Millison, plaintiff argues Swepco knowingly and deliberately exposed him to a hazardous work environment and fraudulently concealed existing occupational diseases.
The Supreme Court held that "an intentional wrong can be shown not only by proving a subjective desire to injure, but also by a showing, based on all the facts and circumstances of the case, that the employer knew an injury was substantially certain to result." Laidlow v. Hariton Mach. Co., 170 N.J. 602, 614 (2002). Further,
[c]courts must examine not only the conduct of the employer, but also the context in which that conduct takes place: may the resulting injury or disease, and the circumstances in which it is inflicted on the worker, fairly be viewed as a fact of life of industrial employment, or is it rather plainly beyond anything the legislature could have contemplated as entitling the employee to recover only under the Compensation Act? [Millison, supra, 101 N.J. at 179.]
"In other words, under Millison, if only the conduct prong is satisfied, the employer's action will not constitute an intentional wrong within the meaning of N.J.S.A. 34:15-8. That standard will be met only if [the conduct and the context] prongs of Millison are proved." Laidlow, supra, 170 N.J. at 615. Disposition of these cases is "grounded in the totality of the facts contained in the record and the satisfaction of the standards established in Millison." Id. at 623.
Following our review, we conclude, as did Judge Martinotti, that plaintiff failed to prove Swepco engaged in an intentional wrong, which would allow recovery beyond the scope of the Act. Examining the conduct of the employer, as well as the context in which that conduct takes place, we discern the circumstances of the plant inflicted on plaintiff can only be fairly "viewed as a fact of life of industrial employment," and was not "beyond anything the legislature could have contemplated" when limiting recovery solely to compensation defined in the Act. Millison, supra, 101 N.J. at 179.
Plaintiff successfully showed that ventilation fans, at times, were not working, that there may have been an insufficient number of ventilation masks, that MSDS were not distributed to employees as required by 29 C.F.R. § 1910.1200, that plaintiff may not have received all mandated safety trainings and that some employee complaints about air quality were ignored.
It was also undisputed, however, that Swepco employed safety instruction, training and inspections; that it monitored air samples, which were often found well below the stated preferred limits; posted hazard labels; and made personal safety equipment available. When plant areas emitted hazardous substances above acceptable levels, corrective measures were implemented.
Reviewing the totality of the facts, Laidlow, supra, 170 N.J. at 623, even giving plaintiff all favorable inferences, we determine plaintiff failed to demonstrate with "substantial certainty" Swepco's conduct amounted to an "intentional wrong" resulting in avoidance of the exclusive-remedy bar of N.J.S.A. 34:15-8. Id. at 615.
In the face of the legislature's awareness of occupational diseases as a fact of industrial employment, we are constrained to conclude that plaintiffs-employees' initial resulting occupational diseases must be considered the type of hazard of employment that the legislature anticipated would be compensable under the terms of the Compensation Act and not actionable in an additional civil suit. [Millison, supra, 101 N.J. at 179.]
Finally, the claimed deception practiced on OSHA inspectors is proffered by plaintiff alone. The statement may not be considered evidential as it is a "conclusory and self-serving assertion . . . insufficient to overcome the motion" for summary judgment. Puder v. Buechel, 183 N.J. 428, 440-41 (2005) (citing Martin v. Rutgers Cas. Ins. Co., 346 N.J. Super. 320, 323 (App. Div. 2002)).