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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...