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Shen v. Do Do Plastics


June 24, 2008


On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-6762-05.

Per curiam.


Submitted May 13, 2008

Before Judges Simonelli and King.

Plaintiff Wen Xue Shen sought damages against his employer, defendant Poly Pro Plastics, Inc., for injuries he sustained on October 23, 2003, while attempting to change a heat seal on a converter machine. Plaintiff appeals from the order of July 20, 2007, granting summary judgment to defendant dismissing his complaint with prejudice. We affirm.


Defendant filed a summary judgment motion after the close of discovery. In support of the motion, defendant submitted the transcript of plaintiff's deposition testimony and photographs marked during the deposition, and the transcript of the deposition of one of defendant's employees. Plaintiff did not oppose the motion. The following undisputed facts were considered by the motion judge.

Plaintiff was employed by defendant as a maintenance worker. Plaintiff's job duties included overseeing defendant's machines and fixing any electrical or mechanical problems that caused the machines to shut down. On October 23, 2003, plaintiff injured his fingers while attempting to change the heat seal on the lower part of the converter machine at issue.

The converter machine was delivered to defendant in 2002, and was installed by the manufacturer's representatives. After the machine's delivery, defendant obtained a heat shield, which "was used during spring and fall to regulate the temperature so that the seals and the bags which were being cut would not stick together." The heat shield was not a protective device, which was removed when the heat seal tape had to be changed. The machine was also equipped with a gear lock.

Plaintiff was neither trained nor authorized to change the heat seal tape on the converter machine; no one instructed him to change the heat seal tape; and he changed the heat seal on his own when he discovered a problem with the seal. Plaintiff also failed to use the gear lock when changing the heat seal tape, which would have prevented the sealing bar from dropping onto his fingers. Prior to plaintiff's injury, no employee had ever been injured by the converter machine.

We use the standard the trial court uses in deciding a summary judgment motion. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.) (citing Antheunisse v. Tiffany & Co., Inc., 229 N.J. Super. 399, 402 (App. Div. 1988), certif. denied, 115 N.J. 59 (1989)), certif. denied, 154 N.J. 608 (1998). Summary judgment must be granted if "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 528-29 (1995). "Genuine" means "only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." R. 4:46-2(c).

In determining whether there is a genuine issue of material fact for summary judgment purposes, the trial court must ascertain "what reasonable conclusions a rational jury can draw from the evidence[.]" Brill, supra, 142 N.J. at 535. To make the determination, the judge "'must accept as true all evidence which supports the position of the party defending against the motion and accord him [or her] the benefit of all legitimate inferences which can be deduced therefrom[.]'" Ibid. (quoting Pressler, Current N.J. Court Rules, comment 1 on R. 4:40-2 (2007)). If reasonable minds could differ, the motion must be denied. Ibid.

The "essence of the 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.'" Id. at 536 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 2512, 91 L.Ed. 2d 202, 214 (1986)). The trial court is required 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." Id. at 540. The opposing party must nevertheless offer facts which are substantial or material in opposing the motion, in order to defeat the grant of summary judgment. Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 75 (1954).

Even though the allegations of the pleadings may raise an issue of fact, if the other papers show that, in fact, there is no real material issue, then summary judgment can be granted. Ibid. Thus, "[b]are conclusions in the pleadings, without factual support in tendered affidavits, will not defeat a meritorious application for summary judgment." U.S. Pipe & Foundry Co. v. Am. Arbitration Ass'n, 67 N.J. Super. 384, 399-400 (App. Div. 1961) (citing Gherardi v. Bd. of Educ. of the City of Trenton, 53 N.J. Super. 349, 358 (App. Div. 1958)). Furthermore, disputed issues that are "of an insubstantial nature" cannot overcome a motion for summary judgment. Brill, supra, 142 N.J. at 530 (citing Judson, supra, 17 N.J. at 75). Therefore, "when the evidence 'is so one-sided that one party must prevail as a matter of law,' . . ., the trial court should not hesitate to grant summary judgment." Id. at 540 (citation omitted). In light of this standard, we conclude the motion judge properly granted summary judgment.

This case is governed by the New Jersey Workers' Compensation Act, N.J.S.A. 34:15-1 to -127. N.J.S.A. 34:15-8 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. (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. DuPont de Nemours & Co., 101 N.J. 161, 177 (1985)). The test for "intentional wrong," namely whether an employee may escape from the confines of N.J.S.A. 34:15-8 and sue an employer in court, is the Millison/Laidlow test, which 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 v. Hariton Machinery Co., Inc., 170 N.J. 602, 617 (2002) (citing Millison, supra, 101 N.J. at 177-79).]

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, 184. 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, 587-88 (App. Div. 2001). "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., Inc., 176 N.J. 366, 377 (2003).

"Outside the industrial-manufacturing context, . . . courts have generally been reluctant to find satisfaction of the 'intentional wrong' standard." Fisher v. Sears, Roebuck & Co., 363 N.J. Super. 457, 470 (App. Div. 2003), certif. denied, 179 N.J. 310 (2004). Those cases in which our courts denied summary judgment to employers, and allowed the "intentional wrong" question to reach the jury, all involved some type of egregious employer conduct that not only helped create the danger but also multiplied the risk of serious injury involved therewith. See Crippen v. Cent. Jersey Concrete Pipe Co., 176 N.J. 397, 409-11 (2003) (employer was improperly granted summary judgment on the "intentional wrong" issue where it had received numerous OSHA violations regarding improper confined space and lockout/tagout safety measures, deliberately did not make such 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 employee death in such confined space); Mull v. Zeta Consumer Prods., 176 N.J. 385, 391-93 (2003) (employer's prior OSHA violations for failing to provide employees with proper lockout/tagout procedures on the release of hazardous energy, removal of certain safety devices from the machine at issue, and a co-worker's similar accident the same day were sufficient for the "intentional wrong" question to reach the jury, thus making a summary judgment grant erroneous); Millison, supra, 101 N.J. at 182, 186 (employees' contentions that employer fraudulently hid its knowledge of diseases employees already contracted, from exposure to asbestos in the workplace, were sufficient to state a cause of action for aggravation of plaintiffs' illnesses, cognizable at common law).

Conversely, our courts have not hesitated to grant summary judgment to employers where the alleged "intentional wrong" bespoke more of ordinary, or even gross, negligence, not involving deliberate and extreme conduct by the employer. In Laidlow, the Court summarized the propriety of a summary judgment grant when an "intentional wrong" issue is presented:

[W]hen an employee sues an employer for an intentional tort and the employer moves for summary judgment based on the Workers' Compensation bar, the trial court must make two separate inquiries. The first is 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. If that question is answered affirmatively, the trial court must then determine 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. Resolving whether the context prong of Millison is met is solely a judicial function. Thus, if the substantial certainty standard presents a jury question and if the court concludes that the employee's allegations, if proved, would meet the context prong, the employer's motion for summary judgment should be denied; if not, it should be granted. [Laidlow, supra, 170 N.J. at 623.]

Here, although the motion judge failed to make findings of fact on the record, Rule 4:46-2(c), where, as here, "the record is so clear and complete," and the claim is wholly without merit, we will exercise our original fact-finding jurisdiction. Huster v. Huster, 64 N.J. Super. 29, 34 (App. Div. 1960); R. 2:10-5. In so doing, we conclude that there were no genuine issues of material fact that required submission of either the "substantial certainty" or "context" prong of Millison/Laidlow to the jury, and the motion judge was correct in so concluding. Plaintiff's claims are barred as a matter of law by the Workers' Compensation Act.

We decline to address plaintiff's contention that the motion judge erred in ignoring prior counsel's ineffectiveness in failing to oppose the summary judgment. This contention was not raised below. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (quoting Reynolds Offset Co., Inc. v. Summer, 58 N.J. Super. 542, 548 (App. Div. 1959), certif. denied, 31 N.J. 554 (1960)); R. 2:6-2. Even if plaintiff had raised the issue below, we conclude that it is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).



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