On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-5193-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher, Sapp-Peterson and Espinosa.
In this appeal, we are again asked to interpret the intentional wrong exception under the Workers Compensation Act, N.J.S.A. 34:15-1 to -128 (Act). Plaintiffs, Jerry Mann, individually and on behalf of the Estate of Michael G. LaPoint and his heirs, and Rebecca LaPoint,*fn3 decedent's wife, appeal from the grant of summary judgment dismissing claims against LaPoint's employer, defendant Edison Township (Township), arising out of fatal injuries LaPoint sustained when he fell off the back of a garbage truck that then ran over him while in reverse mode. On appeal, plaintiffs contend the trial court erred in dismissing the complaint because the intentional wrong exception under the Act applied to LaPoint's claims. Additionally, plaintiffs contend the trial court improperly resolved issues of fact in reaching its decision. We affirm.
The facts viewed most favorably to plaintiffs disclose that on April 15, 2002, LaPoint, who had been an employee of the Township for at least fifteen years, was part of a three-person crew manning a Township sanitation truck. LaPoint worked as a garbage picker, collecting and depositing refuse into the rear hopper of the truck.
The truck on which LaPoint was working at the time of his fatal accident was a Formula 5000 (F5000) manufactured by Heil Packer (Heil). The truck was delivered to the Township in 1993. The bid specifications for the truck included a requirement that steps installed on the tailgate "must conform to ANSI standards."*fn4 As delivered, the truck was equipped with steps mounted to the side of the truck that were made out of Grip Strut, a self-cleaning and slip-resistant material. The rear sides of the truck also bore warning decals stating: "CAUTION: Do not use riding step when vehicle is exceeding 10 MPH, operating in reverse or traveling in excess of 2/10 miles."
Although the truck, as originally designed, had an L-shaped, wraparound step that extended several inches into the rear, the truck delivered to the Township did not have the L-shaped step because it was equipped with a container-lifting mechanism. After the Township accepted delivery of the truck, it had one of its employees retrofit the truck by installing a platform step across its rear. Retrofitting sanitation trucks with a rear platform step had been a practice of the Township's Public Works Department since sometime in the 1980s. At the time of LaPoint's fatal accident, twelve of the Township's thirteen sanitation trucks had been modified with a rear platform step and grab bar. The Township's welder testified during his deposition that he installed a platform step across the rear of their sanitation trucks at the direction of his supervisor, who reported to the Public Works Director, and he received a work order to perform the modifications. Township administration officials, however, claimed they were unaware of this modification prior to LaPoint's fatal accident.
Plaintiffs' expert, Donald T. Aull, prepared a report in which he opined that defendant's modification of its sanitation trucks to install the "additional step and associated grab handles clearly provided a substantial hazard that was certain to result in accidents, injury or death." He noted that a worker riding on the rear step was not visible to the truck's driver and therefore at risk of being run over if the truck was being operated in reverse before the driver became aware that a worker had fallen off.
During his deposition, Jerald Zanzig, who worked for Heil for twenty-seven years before forming his own consulting firm and who continued to consult for Heil, testified that he participated in the design of the steps for the F5000 model. He described the steps on that model as a "wrap-around design. That is they had somewhat [of an] L-shape, if you will, as viewed from the top and were principally to the sides of the tailgate of the unit, but additionally it wrapped around to a small extent in the rear of the unit." He acknowledged that in a few instances in the past, Heil supplied vehicles with a rear platform, but as of the "late '70s Heil refused to supply such a rear platform on any of its rear loaders from that point on." When asked why Heil no longer manufactured trucks with a rear platform, he stated:
Well, the general answer is that a rear platform places the workers in what could be a very hazardous position with respect to the pinch points of the packing mechanism. The pinch point that occurs between the packer panel of the unit and the hopper of the unit is in effect right there. When you put such a rear platform in that position . . . it poses, you know, a potential threat of pinch point injuries, especially if the packing mechanism is able to be cycled while the vehicle is moving[,] which generally is the practice of many of the users. Secondly, Heil was involved in such [a] pinch point injury and litigation associated with such an episode and decided that they would no longer supply such a rear platform because of that.
Zanzig also testified that ANSI eliminated rear platform steps on sanitation trucks from its standards in 1999 principally because of backup accidents that had continued to occur regardless of any requirements in the ANSI standards for loaders not riding while the vehicle was backing, requirements for the employers to train and institute work rules that eliminated the practice. It was still being done. And, unfortunately, anyone riding to the rear of a vehicle when it was backing who happened to fall off or maybe even step off intentionally often resulted in that worker being run over as the vehicle continued to back.
A number of LaPoint's co-workers were deposed. Anthony Ruvolo testified that he was hurt on two occasions while working on a sanitation truck retrofitted with a rear platform step. The first injury occurred when he banged his left knee as the truck traveled over a pothole. He sustained the second injury while the truck was moving forward and stopped short. In both instances, his left foot was on the retrofitted rear step. Ruvolo indicated that following his first injury in 1993, his co-worker, Frank Mantuano told their superiors that the steps were illegal and that he did not want them on the truck. Mantuano, in his deposition, acknowledged that he believed the retrofitted platform step was illegal but denied reporting his beliefs to his supervisors. Rather, he testified that he and his co-workers "all used to talk about it at work because you can't alter a vehicle." Neither Ruvolo nor any of LaPoint's other co-workers who were deposed recalled any accident involving a worker falling from the rear of the truck. Nor did discovery reveal any other mishaps related to the retrofitted rear platform steps.
Prior to LaPoint's fatal accident, the Township had never been cited for violating any laws or regulations related to its retrofitted trucks, nor does the record reveal that any regulatory or law enforcement agency advised the Township that the rear platform step ...