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Craig Kane v. County of Burlington

December 9, 2011

CRAIG KANE, PLAINTIFF-APPELLANT, AND DIANA KANE, HIS WIFE, PLAINTIFF,
v.
COUNTY OF BURLINGTON, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-1946-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 29, 2011

Before Judges Fisher and Baxter.

Plaintiff Craig Kane appeals from a December 3, 2010 Law Division order that granted the summary judgment motion of defendant, the County of Burlington, thereby dismissing plaintiff's work-related personal injury complaint. The judge reasoned that none of the facts produced by plaintiff were sufficient to defeat the exclusive remedy provision of a portion of the Workers' Compensation Act (Act), N.J.S.A. 34:15-1 to -142. In particular, the judge concluded that plaintiff failed to establish a genuine issue of material fact on whether defendant's conduct constituted an "intentional wrong" within the meaning of the Act. We affirm.

I.

Plaintiff was hired by the County of Burlington as a maintenance mechanic and heating, air conditioning and ventilation (HVAC) mechanic in 1993. He also owned his own mechanical business, Evesham Mechanical, L.L.C., and worked for a local mental health center, where he performed a variety of maintenance, mechanical and HVAC tasks. As a licensed mechanic, plaintiff was familiar with the methods for installing compressors on roof tops. On more than twenty occasions, he had hoisted compressors to the roof of County buildings by hand, although none of the compressors he had hoisted by hand weighed more than fifteen pounds. Whenever plaintiff installed heavier compressors, the compressor was lifted to the roof by a crane. The decision whether to use a crane, or instead hoist the compressor up to the roof by hand, was made by plaintiff's immediate County supervisor, Ken James.

Plaintiff was in excellent physical condition, having been trained by a professional weightlifter. He was "able to dead lift 570 pounds and incline bench 375 pounds, . . . curl 135 pounds, hammer curl 55 pounds, . . . leg press . . . 800 pounds, [and] decline press 360 [pounds]."

Toward the end of June 2006, James issued a work order directing plaintiff to install a 121-pound compressor onto the roof of the Burlington County Library. James initially assigned plaintiff to install the compressor by himself; however, Gary Watkins, a County Assistant Superintendent, decided to assign one of plaintiff's co-workers, Donald Staiger, to assist plaintiff because of the weight of the compressor.

When plaintiff and Staiger arrived at the work site on the morning in question, June 26, 2009, and saw there was no crane present, neither man raised an objection. Later asked why he had not done so, plaintiff responded, "I'm not there to disagree with management, my job is to do what I am instructed to do." He testified that when he arrived at the Library, it was his opinion he could hoist the compressor, "[o]r [he] would not have attempted the job." He commented, "I am a professional, I should be able to know my job. I should not be told how to do my job. I'm trained, I'm certified, that's why they hired me, for my knowledge and my expertise."

Plaintiff and Staiger decided that plaintiff would stand on the roof of the Library to pull the compressor up using a rope, while Staiger remained on the ground to guide the compressor so it would not get caught on the overhang of the roof. While hoisting the compressor, the rope slid from plaintiff's hands, causing him to fall backward, hit his head and sustain injury.

Plaintiff's workers' compensation claim petition was approved, and he began receiving benefits. On June 26, 2008, he filed a personal injury complaint against the County in the Law Division, alleging that the County, through its agents and employees James and Watkins, acted recklessly by "intentionally placing [him] in [a]n unsafe job detail with minimum safety equipment[,] and knew or should have known that the hoisting of a compressor to the roof was certain to cause serious injury or death to an employee."

Staiger testified at his deposition that he did not recall any discussions regarding Occupational Safety and Health Administration (OSHA) guidelines because it was "kind of hush," by which he meant that a person could get "written up for that, because you're not supposed to refuse a job." He felt his employment would be at risk if he refused to complete a job assignment, although he could not be certain because he "never refused a work order." Staiger did not know of anyone who had ever been disciplined for insubordination.

James acknowledged that hoisting a compressor weighing more than seventy-five pounds was "typically a two man job" for safety reasons, and that one person hoisting a 120-pound compressor alone "wouldn't be safe." James admitted that he maintained a grudge against plaintiff because plaintiff once reported him to management for using racial slurs on the job, which resulted in James being ...


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