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Cummings v. Dairies

June 3, 2008

JANET CUMMINGS AND GARY CUMMINGS, HER HUSBAND, PLAINTIFFS-APPELLANTS,
v.
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.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

I.

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 ...


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