On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-4512-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Baxter and King.
This is a personal injury action that arises out of an incident which occurred on April 29, 2005 at a construction site located at 44 Chapel Street in Newark. Plaintiff commenced this action to recover damages for personal injuries he sustained while working in a trench which collapsed at that location. At the time of the incident, plaintiff was employed by DNA Construction Corp. (DNA). Dominguez Holding Company, LLC (Dominguez Holding) owned the subject property.
Leopoldo M. Dominguez owned DNA, a company specializing in building restoration and waterproofing. Dominguez, through Dominguez Holding, had purchased the 44 Chapel Street property as a warehouse for DNA. As part of the construction project, which involved paving the property, Dominguez hired ALV General Contractors (ALV) to perform the excavation necessary for the installation of piping. Jose Rodriguez, the principal for ALV and an alleged expert in digging trenches, personally dug one of the trenches at the premises.
Leonardo Skrzypek, a DNA employee, had been injured on April 21, 2005, when Elvis Paris-Currais, an employee of ALV, accidentally dumped dirt on him with a backhoe while he was standing in one of the trenches. Thereafter, at Dominguez's direction, plaintiff and other DNA employees installed plywood and shoring in the trench so the walls would not cave in. Adolfo Gonzalez, a foreman for DNA, supervised the installation of the plywood and shoring; Dominguez instructed Gonzalez to do whatever was necessary to ensure that another accident did not occur in the trenches.
Pipes for sewer and electrical lines were later installed in the trenches. After the pipes were installed, plaintiff and another DNA employee removed the wood shoring so the trenches could be backfilled. They were instructed to stand outside the trench, one on each side, grab a portion of the corresponding vertical planks that extended above the walls of the trench, move the vertical planks side-to-side to free up the pressure of the horizontal shoring, and remove the planking and shoring.
According to Gonzalez, before the planking and shoring is removed, that portion of the trench is backfilled with several feet of dirt, at which point the laborers maneuver the vertical planks side-to-side and lift the shoring on top of the backfilled dirt. That portion of the trench is then backfilled with several more feet of dirt, and the process is repeated until approximately half of the trench is backfilled; the laborers then remove the planking and shoring.
Gonzalez was not at the site when plaintiff's accident occurred. Thus, DNA did not have anyone supervising the removal of the planking and shoring or the backfill of the remaining section of the trench on April 29, 2005. At the time of the accident, plaintiff was standing in a ten-foot-deep trench, removing the shoring and handing it up to another DNA employee who was standing outside the trench. This was a mistake. While carrying out this task, the shoring collapsed, pinning plaintiff against the side of the trench. Plaintiff was covered up to his neck in dirt and debris and immediately lost consciousness. He was rushed to University Hospital in Newark, where he remained for five days. As a result of the accident, plaintiff allegedly sustained severe injuries, including a fractured neck and ribs.
Plaintiff filed a complaint against his employer on September 18, 2006. During discovery, plaintiff filed a notice of motion to amend his complaint in order to add an intentional tort claim against DNA. That motion was denied on November 29, 2007. Following discovery, defendants DNA, Dominguez Holding and Dominguez moved for summary judgment based on the Workers' Compensation bar, which was granted on April 25, 2008. On May 30, 2008, summary judgment was granted in favor of ALV on the basis that the accident in question was the result of the negligent conduct of plaintiff's employer and the subsequent intervening actions of plaintiff. Plaintiff thereafter filed a motion for reconsideration as to the trial court's determination regarding ALV, which was denied on July 18, 2008.
The first question we consider is whether the Workers' Compensation Act, N.J.S.A. 34:15-1 to -142, precludes an employee injured during the course of employment from asserting a cause of action against his employer in addition to the workers' compensation benefits already provided by statute. The statute reads, 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 ...