On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-861-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall and Messano.
Plaintiff Lee E. Holck appeals from the grant of summary judgment dismissing his complaint against defendant P.H.A. Incorporated. When reviewing a grant of summary judgment, we employ the same standards used by the motion judge. Atl. Mut. Ins. Co. v. Hillside Bottling Co., Inc., 387 N.J. Super. 224, 230 (App. Div.), certif. denied, 189 N.J. 104 (2006). We first determine whether the moving party has demonstrated there were no genuine disputes as to material facts, id. at 230, we then decide "whether the motion judge's application of the law was correct." Id. at 231.
[A] determination whether there exists a "genuine issue" of material fact that precludes summary judgment requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party. [Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).]
In "our review, we owe no deference to the" motion judge's conclusions on issues of law. Atl. Mut. Ins. Co., supra, 387 N.J. Super. at 231.
The motion record in this case revealed that on March 14, 2005, plaintiff was a construction supervisor/mechanic employed by defendant and was repairing the company's Caterpillar D-5 bulldozer at a worksite. Plaintiff was sitting on the tread of the bulldozer with his legs hanging between it and the engine compartment. Charles "Joe" Peterson, the sole shareholder of defendant, was operating a rented compactor roller when he accidentally struck the bulldozer. Because plaintiff had not applied the emergency brake, the bulldozer rolled backwards, he was jolted forward, and his legs were pinned between the operator's platform and the tread. He sustained injuries to his back, left knee, and right ankle. Plaintiff made a claim for Workers' Compensation benefits which was eventually settled.
On March 12, 2007, plaintiff filed a complaint against defendant and fictitious parties seeking damages for injuries incurred as a result of the accident. Plaintiff claimed that defendant committed an "intentional wrong" because, realizing the bulldozer "would need to be disassembled in order to free [him] and . . . avoid further injuries," defendant "intentionally refused to permit the machine to be disassembled." Plaintiff also alleged defendant acted negligently "by failing to provide a safe workplace, failing to provide proper instruction . . . and failing to provide proper rescue and first-aid procedures . . . ." He alleged "product defects" against the fictitious "manufacturers of the bulldozer." Defendant filed its answer, asserting, among other defenses, the statutory immunity contained in N.J.S.A. 34:15-8. After pre-trial discovery, defendant moved for summary judgment on this ground.
Plaintiff testified at deposition that after the impact, Peterson "refused" to call emergency assistance, claiming he did not have network service from his cellular phone. Instead, plaintiff claimed Peterson spent "precious time" trying to convince plaintiff to allow him to lightly tap the rear of the bulldozer with the roller in an attempt to "reverse the process" that led to plaintiff's entrapment. Plaintiff protested, believing that Peterson would essentially "crush" him by "shov[ing] the machine [in] the other direction." After five to ten minutes elapsed, plaintiff grabbed his cell phone which he had left on the platform of the bulldozer prior to the accident. He dialed 911 and handed the phone to Peterson who requested assistance from the Egg Harbor Township dispatcher. Records revealed that three and one-half minutes later, emergency personnel responded.
Peterson testified at deposition that after the accident occurred, he got off the roller and rushed to plaintiff's side. He realized that plaintiff "was in agony." Peterson claimed he made the 911 call within two minutes, though he could not recall which phone he used; Peterson claimed he did not attempt to extricate plaintiff.
Vince Jones of Atlantic County's Emergency Management Office was the first responder at the scene. He testified at deposition that plaintiff "was sitting on the track of [the] bulldozer with his legs trapped between the track and the body of the bulldozer." Jones also saw Peterson "trying to free [plaintiff's] leg[,] utilizing some sort of tool or bar." Jones was "never more than a few feet away from" plaintiff as emergency personnel were trying to extricate him; Jones observed that Peterson never left the scene, appeared "concerned" and was "absolutely trying to help." Jones never observed anyone "obstructing or attempting to delay" the extrication.
Robert Charles Winkler III, a rescue manager with the fire department, arrived within fifteen minutes of Jones. He and his men spent some minutes strategizing how to extricate plaintiff. Their initial attempt, using the "jaws of life," failed, and they then contemplated using a cutting torch. Plaintiff, however, was concerned that he would be burned in the process, as was Peterson. He thought plaintiff was too close to the fuel tank and that using the torch would cause an explosion or else create burning debris that would cause further injury. Plaintiff, however, believed that Peterson did not want the torch used because it would damage the bulldozer. Ultimately, Winkler and his men decided not to use a cutting torch.
Instead, Peterson called Bill,*fn1 who told the firemen how to disassemble the bulldozer. They did so, and Peterson was safely extricated and taken to the Atlantic City Medical Center. Both Peterson and Winkler testified that no one impeded plaintiff's rescue, which ...