Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Su v. David's Cookies

August 10, 2009

CONG SU, PLAINTIFF-APPELLANT,
v.
DAVID'S COOKIES, COOKIE CUPBOARD, FAIRFIELD GOURMET FOODS CORP./COOKIE CUPBOARD, FAIRFIELD GOURMET FOODS CORP. D/B/A DAVID'S COOKIES, DEFENDANT-RESPONDENT, AND INSTANT STAFF SERVICES, LLC, DANG HUONG, TRI-STATE EMPLOYMENT, DEFENDANTS, AND FAIRFIELD GOURMET FOOD, CORP. (D/B/A DAVID'S COOKIES AND COOKIE CUPBOARD), THIRD-PARTY PLAINTIFF-RESPONDENT,
v.
L&H EMPLOYMENT, PREFERRED SERVICES, JOEL SCHREIBER, AND LOU FINKELSTEIN, INDIVIDUALLY, JOINTLY AND SEVERALLY, THIRD-PARTY DEFENDANTS.
FAIRFIELD GOURMET FOOD, CORP., PLAINTIFF-RESPONDENT,
v.
THE ATLANTIC COMPANIES (D/B/A ATLANTIC MUTUAL INSURANCE COMPANIES AND/OR CENTENNIAL INSURANCE COMPANY), DEFENDANTS.



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

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.