On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-375-04 and L-466-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Yannotti and LeWinn.
Plaintiffs Richard Bellomy and Floyd Thomas were employees of defendant FCI Transport, Inc. (FCI), a garbage hauling business. In February 2002, Bellomy and Thomas suffered serious injuries during the course of their employment when the garbage truck in which they were riding veered off the road and hit a tree, crushing both of them in the cab.
In February 2004, plaintiffs filed personal injury suits against FCI under the "intentional wrong" exception to the Workers' Compensation Act's bar in N.J.S.A. 34:15-8. In October 2006, FCI moved for summary judgment pursuant to that statute. On January 5, 2007, the trial court entered an order granting summary judgment in favor of FCI and dismissing the complaints with prejudice. Both plaintiffs appeal and their appeals have been consolidated for our consideration.
We summarize the relevant evidence as established by the depositions and exhibits submitted on the motion. When plaintiffs reported for work on February 16, 2002, FCI operations supervisors David Phillips and Corey Van Note informed them that their driver that day would be James Alamo. Plaintiffs had ridden with Alamo on previous occasions and had incurred no problems.
The garbage truck to which plaintiffs and Alamo were assigned had a cab equipped with two seats, each with a seat belt. There was no seat or seat belt for an additional passenger. The practice was for plaintiffs to ride on the outside of the truck during the actual collection of garbage. However, if the truck had to travel some distance between routes, plaintiffs rode inside the cab. Therefore, when riding in the cab, plaintiffs had two options: (1) they both could stand in the passenger area of the cab with the seat flipped upright and without the use of a seatbelt; or (2) one could sit in the seat with the seatbelt and the other could sit on top of the engine cover, an elevated hump between the two seats.
Plaintiffs departed the FCI facility with Alamo driving. As they traveled, plaintiffs noted that Alamo was nodding off and appeared to fall asleep while driving; he veered the truck into some garbage cans and missed some of the pick-up stops. Plaintiffs contended that they made continual efforts to keep Alamo focused on his driving throughout the morning.
While on one of their routes, a call came over the radio from Phillips advising Alamo that residents on an earlier route were complaining of missed stops. Phillips instructed Alamo to return to those residences and collect the trash.
In order to return to the residences in question, Alamo had to drive downhill on a narrow winding road. This required both plaintiffs to ride inside the cab. Neither plaintiff chose to sit on the hump. Rather, they both decided to stand in the passenger compartment area of the cab without being belted.
As Alamo drove down the winding road, he lost control of the truck, causing it to leave the roadway and collide with a tree. Alamo sustained minor injuries and was able to walk away from the accident site. However, plaintiffs were trapped inside the crushed passenger compartment area and had to be freed by the fire department. They each sustained massive trauma to their legs; Bellomy underwent ten surgeries to repair the damage to his legs and Thomas' left leg was amputated above his knee.
Bellomy testified that prior to the accident, he was generally assigned once a week to a two-seated truck along with a driver and a second trash loader. Bellomy also testified that on prior occasions when he was assigned to ride with Alamo, he always felt safe. On the morning of February 16, 2002, Bellomy stated that Alamo seemed tired and distracted but did not appear to be intoxicated.
Thomas testified that on those occasions when three workers rode in a truck, one would sit on the hump and the other would be belted in the passenger seat. Thomas further stated that, on the morning of the accident, he did not ...