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Su v. David's Cookies


August 10, 2009


On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-8186-05 and L-6976-07.

Per curiam.


Argued June 9, 2009

Before Judges Lisa and Collester.

Plaintiff appeals from a summary judgment dismissing her complaint against her employer for injuries suffered in a work related accident. The trial judge found that plaintiff did not present sufficient evidence to overcome the intentional wrong exception to the workers' compensation exclusivity bar. We agree and affirm.

Considering the evidential materials in the light most favorable to plaintiff, see Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), these are the pertinent facts. Defendant is in the business of manufacturing cookies, pastries, and other dessert items. Defendant employed about 130 factory workers, who worked on about forty-five to fifty machines of various types.

Plaintiff, a Vietnamese immigrant, does not speak, read, or understand English. She worked at defendant's facility for about one year before the November 7, 2003 accident. She worked on various machines, but she had not worked on the biscotti machine prior to the date of the accident. That machine measures about four feet by six feet, with two tables, on which a conveyor belt transports the biscotti forward, where it is cut into equal pieces by a guillotine-like blade, and taken away by a second conveyor belt to be packed into pans. The machine is operated by four workers.

To prevent a hand from entering the area in which the blade operates, the back of the machine has a ten-inch wide sheet metal guard that is located about one-and-one-half inches above the table's surface. The guard is about nine inches away from the location of the blade inside the machine. Therefore, in order to insert one's hand into the area of the blade, one would have to slide his or her hand under the guard and into the oneand-one-half inch opening, a distance of at least nine inches.

The machine contained a warning label depicting a circular illustration with a cross through it and writing in English to indicate not to put a hand near the blade. However, plaintiff's engineering expert noted that the warning label looked new compared to the machine. The expert suggested that the label might have been affixed to the machine after the accident. Defendant denies this. Although plaintiff's expert's comment in this regard is somewhat speculative, we accept for purposes of our analysis that the warning label was not present at the time of the accident.

On the day of the accident, plaintiff's job was to pack the cookies coming out of the back of the machine. At the end of a loaf of biscotti, smaller pieces of cookies had a tendency to break off and clog within the machine. Defendant was aware that these clogs sometimes occurred. Plaintiff testified in her deposition that no one told her how to turn the machine off, alerted her to the danger from the blade inside the machine, or provided her any instruction as to the operation or safety procedures for use of the machine. She stated she never saw the blade and no one told her there was a blade in the machine.

A clog occurred. While the machine was still running, plaintiff reached her hand under the one-and-one-half inch space under the guard and into the machine. Her hand came into contact with the blade, and its chopping motion caused her significant injuries.

There was no evidence that anyone had ever been injured by the machine prior to the accident. There had been no employee complaints regarding the machine or any safety aspects associated with it. Defendant had never received any citation from the Occupational Safety and Health Administration (OSHA) regarding the machine.

According to plaintiff's expert, even if the warning labels were present on the day of the accident, they would not have provided any meaningful information to an individual who could not speak or read English. The expert also observed that the metal guard could not prevent a person from inserting his or her hand into the area containing the blade. He opined that this danger presented such a high risk that "it was not only reasonably foreseeable but substantially certain that somebody would have been seriously injured by this machine without appropriate training."

The Workers' Compensation Act, N.J.S.A. 34:15-1 to -128, "seeks to protect injured workers from becoming mired in costly and protracted litigation that could delay payment of their claims." Crippen v. Cent. Jersey Concrete Pipe Co., 176 N.J. 397, 411 (2003) (Verniero, J., concurring). It does this "by providing within its purview the exclusive remedy for claims against an employer when a worker is injured on the job, except for those injuries that have resulted from the employer's intentional wrong." Ibid. (internal quotations omitted). This exclusive remedy established by N.J.S.A. 34:15-8 "embodies 'an historic trade-off whereby employees relinquish their right to pursue common-law remedies in exchange for prompt and automatic entitlement to benefits for work-related injuries.'" Id. at 411-12 (Verniero, J., concurring) (quoting Laidlow v. Hariton Mach. Co., Inc., 170 N.J. 602, 605 (2002) (internal quotation omitted)).

To overcome the exclusivity bar, an injured worker must satisfy two separate conditions originally articulated by the Supreme Court in Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 161, 176-79 (1985), and later revisited in Laidlow. The claimant must first satisfy the "conduct" prong by alleging sufficient facts to demonstrate that his or her employer knew its actions were "substantially certain to result in injury or death to the employee." Laidlow, supra, 170 N.J. at 617. Though "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, "an employer's mere knowledge that the workplace is dangerous does not qualify as an intentional wrong." Crippen, supra, 176 N.J. at 412 (Verniero, J., concurring).

"[T]he dividing line between negligent or reckless conduct on the one hand and intentional wrong on the other must be drawn with caution, so that the statutory framework of the Act is not circumvented simply because a known risk later blossoms into reality. [The Court] must demand a virtual certainty." Millison, supra, 101 N.J. at 178. And while "the absence of a prior accident does not preclude a finding of an intentional wrong[,] [r]eports of prior accidents and 'close-calls,' are merely evidence 'that may be considered in the substantial certainty analysis.'" Crippen, supra, 176 N.J. at 408 (quoting Laidlow, supra, 170 N.J. at 621-22).

The second condition the claimant must satisfy is the "context" prong. Laidlow, supra, 170 N.J. at 617. This requires a showing that "the resulting injury and the circumstances of its infliction on the worker" constituted "more than a fact of life of industrial employment" and were "plainly beyond anything the Legislature intended the Workers' Compensation Act to immunize." Ibid.

An injured worker must establish both prongs "in order for an employer's act to lose the cloak of immunity of N.J.S.A. 34:15-8." Ibid. "When evaluating whether a claimant has satisfied those two conditions," the court must "consider 'the totality of the facts contained in the record[.]'" Crippen, supra, 176 N.J. at 412 (Verniero, J., concurring) (quoting Laidlow, supra, 170 N.J. at 623). The same facts and circumstances generally will be relevant to both prongs, but the conduct prong ordinarily is to be determined by the jury, while the context prong is a question of law for the court. Laidlow, supra, 170 N.J. at 623.

Judge Cifelli found that neither prong was satisfied. He rejected plaintiff's argument that, as to the first prong, the training plaintiff never received was much like a safety device removed, and such conduct ignored the risk that an untrained worker would be substantially certain to be injured by the blade in the biscotti machine. Addressing plaintiff's "failure to train" argument, the judge reasoned that an employer "could just as easily assume that a rational person is not gonna stick his hand in a machine that's being operated by electrical power" but would "call somebody or pull the plug or disengage the machinery." The judge concluded that a rational jury could not find that the failure to instruct plaintiff not to insert her hand into the machine while it was operating rose to the level of substantial certainty that an untrained employee would be injured.

The judge also found that plaintiff failed to satisfy the context prong. He concluded that, as a matter of law, "the acts complained of . . . , a failure to train, failure to supervise, failure to warn as well as the type of injury sustained in the matter of the occurrence clearly fall within the workplace hazards intended to be covered by the Worker's Compensation Act." The judge was satisfied that this was a typical workplace accident that did not differ in any significant way from the types of industrial accidents the Legislature intended to compensate exclusively through the provisions of the Workers' Compensation Act.

We agree with the judge's reasoning and conclusions. Addressing the second prong first, the context of this accident was a typical, albeit unfortunate, industrial accident. No facts are present to indicate that any employer negligence or even gross negligence which may have caused plaintiff's injuries were not contemplated by the Legislature as falling within the ambit of the Workers' Compensation Act. The biscotti machine was not modified in any way that would increase the risk to employees. It contained a safety device, which had not been altered or removed. The employer did not engage in any deceptive or underhanded conduct. There had been no OSHA violations and no deception of OSHA or other safety inspectors.

The context prong requires a determination of whether the employer's conduct comes within the hazards the Legislature considered as constituting simple facts of industrial life, or whether such conduct or injury undermines the Act's intended trade-off to such a degree that the Legislature would never have intended to preclude tort recovery. Laidlow, supra, 170 N.J. at 622. We are satisfied that the facts and circumstances here present precisely the type of workplace accident for which the Legislature intended to limit recovery to the remedies provided through the Act. Accordingly, Judge Cifelli did not err in concluding that the context prong was not met.

With respect to the conduct prong, the issue is one of fact for the ultimate factfinder. Our review of the trial judge's summary judgment decision in that regard is de novo, applying the same standard, under Brill, as the trial court. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). We agree with Judge Cifelli's conclusion that no rational factfinder could find that defendant acted with knowledge that it was substantially certain that an injury such as plaintiff's would have occurred.

Factors to be considered as relevant, although not dispositive, include whether the employer knew of prior injuries, prior close calls, the seriousness of any potential injury that could occur, prior complaints from employees regarding unsafe conditions, and prior OSHA violations. Laidlow, supra, 170 N.J. at 622. There is no doubt that the biscotti machine inherently posed a risk of injury to workers. It obviously contained a cutting device that rapidly cut the biscotti into sections. By the very nature of its mechanism, which would be apparent to any observer, a cutting device inside the machine was operating under electrical power to accomplish this purpose. Of course there would be a risk of injury from such a machine. Such is the reality of industrial life. However, a rational factfinder could not conclude that it was virtually certain that a worker would insert his or her hand under the safety guard and inside the machine while it was under power and operating. This would be so even in the absence of specific training about the mechanism of the machine and its operation.

Although we view the conduct prong as a closer call than the context prong, we agree that plaintiff did not present sufficient evidence to withstand summary judgment on the conduct prong.



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