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Shawn Harter v. Fire Suppression

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 28, 2011

SHAWN HARTER, PLAINTIFF-APPELLANT,
v.
FIRE SUPPRESSION, INC., STRAUBE REGIONAL CENTER, LLC, WINN THOMPSON AND BILLY HOLMES, DEFENDANTS-RESPONDENTS, AND GEO MATRIX CONSTRUCTION CORPORATION, STRAUBE CENTER, LLC, STRAUBE CENTER INTERNATIONAL CORPORATION, AND THE STRAUBE FOUNDATION, INC., DEFENDANTS.

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1020-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Telephonically argued February 3, 2011

Before Judges Fuentes, Gilroy and Ashrafi.

This is a personal injury cause of action filed by plaintiff Shawn Harter to recover damages for a work-related accident. The trial court dismissed plaintiff's claims against all of the named defendants as a matter of law. Plaintiff now appeals. We affirm. We derive the following facts from the record developed before the trial court.

I

Defendants Straube Regional Center, LLC, and Winn Thompson own the Straube Regional Center (Straube Center). Defendant Geo Matrix Construction was the general contractor who built the Straube Center and retained defendant Fire Suppression, Inc. (FSI) to install and maintain the fire suppression and sprinkler systems at the Straube Center.

At all times relevant to this case, plaintiff was employed by FSI as an apprentice pipe fitter. Plaintiff first started working for FSI in 2003. He had held various other jobs before beginning with FSI, including working as a "helper" for about six months at another fire sprinkler company. On the day of the accident in 2007, plaintiff and defendant Billy Holmes, a mechanic employed by FSI, responded to an emergency service call at the Straube Center.

When they arrived at the Straube Center, Holmes told plaintiff that he was going to talk to a maintenance man about the job. Plaintiff remained in the van to organize the tools that would be needed to complete the work. When Holmes returned, he told plaintiff that the system was "shut down" and that they needed to "pipe out a relief valve." Although he never had any prior contact with that maintenance man, plaintiff testified at his deposition that he believed he was an employee of the Straube Center.

According to plaintiff, while he and Holmes were inside the building's control room, Holmes received a call from FSI supervisor Jay Lane who told Holmes that someone from the Straube Center had called him and indicated that "the system was shut down and everything was good to go." Holmes, the only person who had spoken to Lane about the service call, relayed this information to plaintiff. Plaintiff specifically asked Holmes whether the system was "shut down," and Holmes answered "yes" on two separate occasions - once before plaintiff went outside to retrieve tools from the van, and again upon plaintiff's return.

Plaintiff testified that when he returned from the van with the tools, Holmes was "messing with certain things on the valves, the dry system, the wet system." At this point, Holmes directed plaintiff to "take the plate off of the dry valve," a task that he had never done before that day. Holmes told plaintiff that this task could be done because the system was "down" and "drained down." Plaintiff understood this to mean that "[t]he system was drained. All the pressure was relieved off the valve." Although plaintiff acknowledges that he was aware at the time that he could verify this critical condition by checking both the water pressure and air pressure gauges, which were both located in the "immediate vicinity" of where the work was to be performed, he did not do so because he relied on Holmes as "his mechanic."

When plaintiff began taking the plate off the dry valve, Holmes was standing approximately ten to fifteen feet away right outside the doorway of the control room, smoking a cigarette. Plaintiff removed seven of the eight bolts surrounding the plate, and then tapped on the plate with his Crescent wrench because "the plate kind of molds itself a little bit to the valve. . . ." When the metal plate came loose, it struck plaintiff in the face due to air and water pressure. The force of the blow "knocked [plaintiff] back into duct work and the plate cut into [his] face." Holmes was the first person to come to plaintiff's aid. Plaintiff cannot remember the substance of Holmes's statements; the only thing he recalls is Holmes repeatedly telling him he was sorry.

Plaintiff suffered "a severe facial laceration" resulting in a scar. He lost seven teeth and required eleven root canals to salvage other teeth. He underwent "numerous surgeries for [his] injuries caused by the impact including a bone graft in the gum area." Plaintiff received workers' compensation benefits and returned to work at FSI approximately one month after the accident.

II

Holmes was incarcerated after this litigation commenced. FSI was unable to locate him after his release, and none of the parties were able to depose him. The Straube Center employee who allegedly informed Holmes that the system had been shut down has not been identified.

Defendant's causes of action included claims of negligence and recklessness against both FSI and Holmes, negligence against Straube, Winn, and Thompson, and a claim of product liability against Straub and Geo Matrix Construction.*fn1 The trial court granted summary judgment to defendants FSI and Holmes based on the exclusive remedy provision of the Workers' Compensation Act, N.J.S.A. 34:15-8. The court granted summary judgment to Straube, Winn, and Thompson because plaintiff's allegations of wrongdoing against these defendants were based on the inadmissible hearsay of the false statements allegedly made by the unidentified Straube Center maintenance employee that the system was shut down and depressurized. Plaintiff appeals from these two orders.

We review a grant of summary judgment de novo, by applying the same standard under Rule 4:46-2(c) that governs 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). Summary judgment must be granted if "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c).

In assessing whether a genuine issue of material fact exists, we determine whether "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, 142 N.J. 520, 540 (1995). With this standard in mind, we affirm substantially for the reasons expressed by Judge Thomas W. Summers in his oral opinion delivered from the bench on November 13, 2009.

Plaintiff's claims against his employer, FSI, and his fellow employee, Holmes, are barred under N.J.S.A. 34:15-8. Plaintiff did not present any evidence that these two defendants' actions amounted to intentional wrongs, thus falling outside the immunity provisions of the Worker's Compensation Act. Laidlow v. Hariton Mach. Co., Inc., 170 N.J. 602, 606 (2002).

Plaintiff's claims against the remaining defendants are based exclusively on incompetent hearsay evidence from an unidentified individual. Indeed, because Holmes has not been deposed, plaintiff's claims against Straube, Winn, and Thompson are based on double hearsay.

Affirmed.


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