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Holck v. P.H.A. Inc.


July 29, 2010


On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-861-07.

Per curiam.


Submitted May 11, 2010

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 occurred within forty-five minutes of the fire department's arrival.

Plaintiff produced no medical proof that the physical injuries caused by the initial impact were exacerbated by the delay in extricating him; instead, plaintiff alleged that he suffered psychiatric injuries as a result. Dr. Regis F. Acosta, a board-certified forensic psychiatrist, was retained to consider "any damage that occurred as a result of the delay in [plaintiff's] rescue . . . ." Plaintiff visited Acosta on nineteen occasions from 2005 to 2008. Initially, plaintiff claimed he was experiencing "problems with his sleep, nightmares, and continuous worrying about his financial situation." Acosta diagnosed plaintiff with Post-traumatic Stress Disorder (PTSD). At his second meeting on June 16, 2005, however, plaintiff stated that he no longer had symptoms "of PTSD in terms of physiologic arousal or nightmares," telling Acosta that he "'fe[lt] pretty good.'"

Acosta continued treating plaintiff who no longer demonstrated signs of PTSD but continued having "some depressive ideations in connection with his physical health." In December 2005, plaintiff complained of insomnia, pain, and discomfort, and Acosta characterized plaintiff's mood as "'depressed, [and] worthless.'" In January 2006, plaintiff did not show marked improvement and was concerned about his lack of income as a result of his unsettled Workers' Compensation claim. During plaintiff's next six visits, from February through December, he suffered a reoccurrence of PTSD, nightmares, and expressed continued frustration over his financial difficulties. Acosta opined that the "more accurate diagnosis" of plaintiff was "Depressive Disorder due to General Condition, (chronic pain)." Plaintiff continued to see Acosta through 2007 and into 2008; in May of that year, plaintiff suffered a relapse of PTSD.

In his report, Acosta opined that plaintiff experienced symptoms of PTSD, nightmares, sleep disorder, anxiety attacks, and mood depression. Acosta further opined that the length of time plaintiff was trapped under the bulldozer was important in determining plaintiff's psychological effects. He noted,

[The] logical implication is that had [plaintiff] been rescued immediately, he could have possibly had a lesser sense of threat to his physical integrity. The longer he stayed trapped under the equipment, the more difficult his rescue became, the greater the sense of threat to his physical well-being was to develop.

Additionally, Acosta testified at deposition that a factor contributing to plaintiff's depression was plaintiff's perception that Peterson lacked empathy. This was particularly troublesome to plaintiff because his family and Peterson's family were social friends. While plaintiff attributed his anxiety and PTSD to the initial impact and the alleged delay in rescuing him, Acosta testified that plaintiff never believed his entrapment was "intentional," nor did he express "that he was trapped in there longer than he had to be . . . ." He never told Acosta that Peterson "refused to call the police," but rather he was "upset [that] he[, plaintiff,] had to call; . . .

[H]e expected some degree of consideration" from Peterson.

At oral argument on defendant's summary judgment motion, the parties stipulated that plaintiff's recovery for physical injuries and loss of employment was barred by N.J.S.A. 34:15-8. In his oral decision, the judge extensively reviewed the evidence in the motion record. Citing Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 174 (1985) and Laidlow v. Hariton Mach. Co., Inc., 170 N.J. 602, (2002), the judge noted that plaintiff's claim was barred unless his employer's conduct was intentional. He concluded that plaintiff had failed to establish that Peterson's conduct met the statutory standard, and entered an order granting defendant summary judgment. This appeal followed.

Plaintiff essentially contends that material factual disputes exist, in large part turning on credibility determinations regarding his and Peterson's versions of the events, and that summary judgment was improvidently granted. While we agree that the scenarios described by both men differed, those disputes, even if resolved in plaintiff's favor, would not permit a rational factfinder to conclude that defendant's conduct amounted to an "intentional wrong," so as to vault the statutory bar. N.J.S.A. 34:15-8. We therefore affirm.

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). See Millison, supra, 101 N.J. at 174 ("[T]he quid pro quo . . . [i]s that employees . . . receive assurance of relatively swift and certain compensation payments, but . . . relinquish their rights to pursue a potentially larger recovery in a common-law action."). As part of the bargain, "the employer assumes an absolute liability. He gains immunity from common-law suit, even though he be negligent, and is left with a limited and determined liability in all cases of work-connected injury." Dudley v. Victor Lynn Lines, Inc., 32 N.J. 479, 489 (1960).

N.J.S.A. 34:15-8 provides that Workers' Compensation is the exclusive remedy for work-related injuries except when the employer's actions amount to an "intentional wrong." In order to overcome the exclusivity bar and stave off summary judgment, an injured employee must satisfy two conditions, first articulated by our Supreme Court in Millison, supra, 101 N.J. at 176-79, and revisited in Laidlow, supra, 170 N.J. at 617. Under the "conduct" prong of the analysis, the employee must raise a genuine factual dispute that the employer evidenced a "deliberate intent[] to injure[,]" Mabee v. Borden, Inc., 316 N.J. Super. 218, 227 (App. Div. 1998) (quotation omitted), or that the employer knew that his actions were "substantially certain to" result in injury or death to the employee. Laidlow, supra, 170 N.J. at 621.

If a factual disputes exists as to the employer's intent, then in considering summary judgment, the court must examine the "context" prong. Id. at 623. Here, the judge must "determine whether, if the employee's allegations are proved, they constitute a simple fact of industrial life or are outside the purview of the conditions that the Legislature could have intended to immunize under the Workers' Compensation bar." Ibid. "Thus, if the substantial certainty standard presents a jury question and if the court concludes that the employee's allegations, if proved, would meet the context prong, the employer's motion for summary judgment should be denied; if not, it should be granted." Ibid.

The motion judge concluded that plaintiff failed as to both prongs of the Millison/Laidlaw test. We agree that plaintiff failed to raise a material factual dispute as to prong one, and therefore defendant's motion was properly granted.

Plaintiff concedes Peterson's action in striking the bulldozer with the compactor was accidental, that he was trapped as a result, and that he could not be extricated, despite the efforts of everyone involved, until the machine was disassembled. Furthermore, it must be conceded that there was no additional delay in extricating him once Jones arrived on the scene. In this regard, although plaintiff claims that Peterson did not want to use the torch to cut the metal on the bulldozer because he did not want to damage the machine, it is undisputed that plaintiff, too, did not want the emergency personnel to use the torch, and that they rejected its use as an option.

Therefore, according plaintiff the benefit of all other favorable evidence and inferences, his claim that defendant, through Peterson, committed an "intentional wrong" is limited to two facts. First, that Peterson wanted to use the compact roller to reverse the process that entrapped plaintiff, and, second, that he failed to call 911 as quickly as possible.

As to Peterson's suggestion that he nudge the bulldozer in the opposite direction, the motion judge characterized this as "a bad choice" at most. It certainly cannot be said that Peterson made the suggestion with a "deliberate intent[] to injure" plaintiff, Mabee, supra, 316 N.J. Super. at 227 (quotation omitted), or that Peterson knew his proposed action was "substantially certain to result" in injury or death to plaintiff. Laidlow, supra, 170 N.J. at 621. It is essentially undisputed that Peterson's intention was quite the opposite.

Assuming arguendo that Peterson delayed calling 911 --Peterson said he called within two minutes, plaintiff claimed he took as much as ten minutes -- the delay was attributable to Peterson's suggestion that he attempt to move the bulldozer. There was no inference available from the record that permitted a finding that he intentionally delayed calling 911 with the purpose of causing plaintiff further harm, or with the substantial certainty that it would.

In fact, to the extent either of these two things caused some delay in the response of others to plaintiff's plight, it is undisputed that plaintiff suffered no greater physical injury as a result. We are unaware of any case, and plaintiff has brought none to our attention, where an employee demonstrated an employer's "intentional wrong" so as to vault the statutory bar, yet suffered no physical injury as a result.

However, we need not directly confront that hypothetical problem. In short, Peterson's conduct, though unfeeling and unempathetic as it might have been, did not amount to the egregious conduct that occurred in other cases wherein the plaintiff has satisfied the heavy burden of demonstrating an "intentional wrong." Compare Laidlow, supra, 170 N.J. at 608-09 (finding the employer's actions constituted an "intentional wrong" when he removed a machine's safety guard for "speed and convenience," and only replaced it when OSHA visited the worksite); Crippen, supra, 176 N.J. at 409-11 (holding summary judgment improper where the employer received several OSHA violations, and the employer intentionally did not remediate the problem, and took affirmative steps to deceive OSHA into believing the problems were fixed); Fisher v. Sears, Roebuck & Co., 363 N.J. Super., 457, 466 (App. Div. 2003) (involving the purposeful disabling of a safety device by the employer). In considering the totality of the circumstances, the facts surrounding this accident simply do not as a matter of law permit a jury to find that Peterson's conduct, to a "substantial" or "virtual certainty," would result in plaintiff's alleged psychiatric injuries. See Laidlow, supra, 170 N.J. at 623.


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