June 3, 2008
JANET CUMMINGS AND GARY CUMMINGS, HER HUSBAND, PLAINTIFFS-APPELLANTS,
TUSCAN DAIRIES, DEFENDANT-RESPONDENT, AND BALTIC CONVEYOR COMPANY, MATERIAL HANDLING COMPANY, AND AMERICAN CONVEYOR CORPORATION, DEFENDANTS.
On appeal from Superior Court of New Jersey, Law Division, Union County, L-2832-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 5, 2008
Before Judges Cuff, Lisa, and Simonelli.
Plaintiff, Janet Cummings, sought damages against her employer, defendant, Tuscan Dairies, Inc., for injuries she sustained on July 31, 2001, when she fell while attempting to step over a moving conveyor (the conveyor).*fn1 Fifteen days after filing an answer to plaintiff's complaint, and prior to any exchange of discovery, defendant filed a motion to dismiss, which the motion judge granted. Plaintiff appealed. We reversed and remanded, concluding that there should be full discovery, and that defendant could seek summary judgment following the completion of discovery. Cumming v. Tuscan Dairies, No. A-3566-03T1 (App. Div. January 24, 2005).
After completion of discovery, defendant filed a summary judgment motion. Plaintiff appeals from the order of January 19, 2007, granting the motion and dismissing her complaint with prejudice. We affirm.
The facts are derived from evidence submitted by the parties in support of, and in opposition to, the summary judgment motion, viewed in a light most favorable to plaintiff. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). Plaintiff was employed by defendant as a general utility worker. One area in which plaintiff regularly worked was a room containing conveyor belt systems and link systems used to assemble boxes. Plaintiff's job duties included feeding "flat cardboard cartons into a carton assembly machine" and, when ordered to do so, clearing jams in the machine. The room contained about eight machines. The subject machine had a conveyor, which was approximately twenty-two inches from the floor and three-quarter inches wide. The machine also had an "off" switch to shut down the conveyor's power. However, the "off" switch was located approximately fifteen to twenty feet away from the machine on the opposite end of the room. In order to access the "off" switch, employees had to step over the conveyor. Although employees were instructed to shut off the machine before clearing jams, workers would routinely step over the conveyor without doing so. Plaintiff admitted that she stepped over the conveyer "[p]lenty of times" in order to clear jams.
Defendant provided a two-step stairway (the stairs) on either side of the machine, which allowed employees to cross over the conveyer and access the "off" switch. The stairs did not have handrails, and although they were designed to be secured with a bolt, the bolt often came loose, causing the stairs to wobble, and requiring calls to a company mechanic numerous times throughout a day to come "with a hammer and bang [the stairs] down" to secure them. Plaintiff raised concerns over the stairs multiple times at monthly safety committee meetings. She eventually left the committee because she felt it was not accomplishing much.
On the day of the accident, plaintiff was summoned to clear a jam in the machine. There were approximately fifty boxes left to be assembled, and without shutting off the machine, plaintiff stepped over the conveyor using the stairs, went through a doorway down to a lower level, and cleared the jam. As plaintiff attempted to re-cross the conveyor using the same stairs, she used her hand to stop the boxes on the conveyor from moving, placed one foot over the conveyor, and as she attempted to cross the other foot, lost her balance and fell awkwardly, sustaining multiple bone fractures. Plaintiff admitted that prior to stepping over the conveyor, she chose not to shut off the machine, despite having the authority to do so. Plaintiff claimed that she did not shut off the machine because if she did so, other employees would "yell at [her]," doing so would also shut off two other machines, and she was nearing the end of her shift and "had about 50 boxes" left to assemble. Plaintiff received full statutory workers' compensation benefits for her injuries.
In the accident report plaintiff prepared the day of the accident, she indicated that her injuries were not the result of a mechanical defect or an unsafe act; proper safety equipment was in use; and the only way to avoid future accidents would be for her to be more careful when crossing the conveyor. Also, there were no prior accidents similar to plaintiff's accident.
Plaintiff's liability expert opined that defendant's "requiring [plaintiff] to step over the dangerous and hazardous operating conveyor[,]" using unanchored stairs without handrails, along with defendant's failure to provide a walkway around the conveyor or "an appropriate crossover structure [with] a walkway with railings," all combined to cause plaintiff's injuries. He concluded that:
It is substantially certain that requiring [plaintiff] to step over the unguarded moving conveyor; to and from stairways without railings; to and from an obstructed, unanchored, moveable stairway, without the ability to shut it down and restart it, would result in her being injured.
Defendant sought summary judgment on the grounds that plaintiff's claim was barred by the Workers' Compensation Act, N.J.S.A. 34:15-1 to -127. Judge Anzaldi granted summary judgment, finding as follows, in relevant part:
With regard to the substantial[ly] certain to injure[e] prong, we're talking about those cases that I recall that talked about, amongst other things, where an employer had taken steps to deceive OSHA inspectors, Laidlow [v. Hariton Machinery Co., 170 N.J. 602 (2002)], or where an employer deceive[d] OSHA inspectors that violations had been corrected, that's the Crippen [v. Cent. Jersey Concrete Pipe Co., 176 N.J. 397 (2003)] (phonetic) case. Or where there was fraudulent concealment of disease or potential disease created by the area. Or there was a deliberate removal of a safety device from a labeling machine for profit and production motives.
I'm satisfied that in looking at the two prongs that are set forth and then the cases that have come since then that can assist the court in its analysis that plaintiff has failed to meet both the substantial certain[t]y to injure prong and the context prong.
This case does not rise to the level of egregious wrongs held in those prior cases that I just made reference to.
The Legislature intended workman's comp. to act and immunize employers except under certain circumstances and those circumstances I find have not been met.
In this appeal, plaintiff contends Judge Anzaldi erred in granting summary judgment because a genuine issue of material fact existed as to whether defendant's conduct constituted an "intentional wrong" under N.J.S.A. 34:15-8, which would remove the bar of the Workers' Compensation Act. We disagree.
A moving party is entitled to summary judgment if there is no genuine issue as to any material fact in the record. R. 4:46-2. In deciding a summary judgment motion, we must apply the standard articulated in Brill, supra, 142 N.J. at 540:
[A] determination whether there exists a "genuine issue" of material fact that precludes summary judgment requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.
We must assume plaintiff's version of the facts is true and give plaintiff the benefit of all favorable inferences. Id. at 536. To prevail on a summary judgment motion, defendant must show that plaintiff's claim was "so deficient as to warrant dismissal of her action." Butkera v. Hudson River Sloop "Clearwater," Inc., 300 N.J. Super. 550, 557 (App. Div. 1997).
New Jersey's Workers' Compensation Act states, in relevant part:
If an injury or death is compensable under this article, a person shall not be liable to anyone at common law or otherwise on account of such injury or death for any act or omission occurring while such person was in the same employ as the person injured or killed, except for intentional wrong. [N.J.S.A. 34:15-8 (emphasis added).]
"Because the [Workers' Compensation] Act involved a historic 'trade off' whereby employees relinquished their right to pursue common-law remedies in exchange for automatic entitlement to benefits for work-related injuries, the 'intentional wrong' exception . . . must be interpreted very narrowly[.]" Mabee v. Borden, Inc., 316 N.J. Super. 218, 226 (App. Div. 1998) (citing Millison v. E.I. Du Pont de Nemours & Co., 101 N.J. 161, 177-79 (1985)). The test for "intentional wrong" requires satisfaction of two conditions:
(1) the employer must know 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 infliction on the worker must be (a) more than a fact of life of industrial employment and (b) plainly beyond anything the Legislature intended the Workers' Compensation Act to immunize. [Laidlow, supra, 170 N.J. at 617.]
Thus, "an intentional wrong is not limited to actions taken with a subjective desire to harm, but also includes instances where an employer knows that the consequences of those acts are substantially certain to result in such harm." Id. at 613 (citing W. Prosser and W. Keeton, The Law of Torts § 80 at 569 (5th ed. 1984)). "[R]eports of prior accidents like prior 'close-calls' are evidence of an employer's knowledge that death or injury are substantially certain to result. . . ." Id. at 621. However, "mere toleration of workplace hazards 'will come up short' of substantial certainty." Id. at 616 (quoting Millison, supra, 101 N.J. at 179). Furthermore, negligent acts of the employer or its employees, no matter their degree, are subject to the "exclusive remedy" bar of N.J.S.A. 34:15-8. Millison, supra, 101 N.J. at 183. A substantial or virtual certainty of injury must be known to the employer; gross negligence or even an excessive lack of concern for employee safety is insufficient. Kaczorowska v. Nat'l Envelope Corp.-E., 342 N.J. Super. 580, 587 (App. Div. 2001) (quoting Marinelli v. Mitts & Merrill, 303 N.J. Super. 61, 72 (App. Div. 1997)); Millison, supra, 101 N.J. at 171-73. "Our law does not impose a duty on an employer to prevent an employee from engaging in self-damaging conduct absent a showing that the employer encouraged such conduct or concealed its danger." Tomeo v. Thomas Whitesell Constr. Co., 176 N.J. 366, 377 (2003).
When an employer moves for summary judgment to preclude an employee from suing on an "intentional wrong" theory, the trial judge must perform a two-step inquiry: it must first ask "whether, when viewed in a light most favorable to the employee, the evidence could lead a jury to conclude 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 yes, the judge must then detemine "whether, if the employee's allegations are proved, they constitute a simple fact of industrial life or are outside the purview of the conditions the Legislature could have intended to immunize under the Workers' Compensation bar." Ibid. If the answer to both questions is yes, summary judgment should be denied; "if not, it should be granted." Ibid.
Our courts have allowed the "intentional wrong" issue to reach the jury where the employer deliberately exhibited some type of egregious conduct that not only helped create the danger, but multiplied the risk of serious injury involved therewith, as opposed to conduct bespeaking ordinary or gross negligence. See Crippen, supra, 176 N.J. at 409-11 (summary judgment erroneously granted to employer who had received numerous OSHA violations regarding improper confined space and lockout/tagout procedures, deliberately did not make corrections, took affirmative steps to deceive OSHA into believing the problems were solved, and employed a manager who admitted he knew there was a substantial certainty of a risk of death in such confined space); see also Laidlow, supra, 170 N.J. at 608-09, 623 (employer's removal of a machine's safety guard for "speed and convenience," placing the guard into position only when OSHA visited, and knowledge of prior near accidents involving the same machine constituted "intentional wrong" precluding summary judgment); Delane ex rel. Delane v. City of Newark, 343 N.J. Super. 225, 240 (App. Div. 2001) (employer's practices of raising ladders near high voltage power lines, in violation of state and federal laws, and failure to provide specialized training for electrical hazards, although both reckless, were not "intentional wrongs" because there was no substantial certainty these practices would lead to injuries); Kaczorowska, supra, 342 N.J. Super. at 584-85, 590 (plaintiff's action was properly precluded where she fell and caught her arm in a machine for which safety guards, originally shipped with the machine, had not been installed, where there were no prior accidents involving the machine or other evidence putting employer on notice of a problem, and where the employer provided safety training on the machine).
Here, the conduct prong was not satisfied. There were no prior accidents similar to plaintiff's accident, no OSHA violations, no failure to install or removal of safety devices, no deception of OSHA or employees, and no concealment of or failure to correct a mechanical defect. All we have is defendant's knowledge of loose stairs. Defendant designated a particular employee to tighten the bolts on the stairs upon request, thus negating any contention that defendant's conscious objective was to harm its employees. Defendant's mere knowledge of a risk does not per se create an "intentional wrong." Laidlow, supra, 170 N.J. at 616 (citing Millison, supra, 101 N.J. at 179). Complaints about the loose steps at most provided defendant with knowledge that plaintiff's accident was possible, not virtually certain to occur. Whether defendant's actions were adequate to prevent any unreasonable harm is a question of negligence, and negligent employer acts, no matter how egregious, are compensable solely by the Workers' Compensation Act. Millison, supra, 101 N.J. at 183.
Although it is not necessary for us to decide the issue, we agree with Judge Anzaldi that the context prong was also not satisfied. As a matter of law, this accident was nothing more than a fact of industrial employment and did not exceed what the Legislature intended to immunize.