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Martha Orbe, Administratrix Ad Prosequendum of the Estate of v. the Manitowic Company

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


March 8, 2012

MARTHA ORBE, ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF AMADO GUILLERMO ORBE, DECEASED, PLAINTIFF-APPELLANT/ CROSS-RESPONDENT,
v.
THE MANITOWIC COMPANY, INC.; MANITOWIC CRANE GROUP D/B/A GROVE; 1825 MCCARTER HIGHWAY CORP.; AND SAFER PIGMENT CORP., DEFENDANTS,*FN1 AND GAR EQUIPMENT CORPORATION, DEFENDANT-RESPONDENT, AND SAFER TEXTILE PROCESSING CORP. AND SAFER HOLDING CORP., DEFENDANTS-RESPONDENTS/ CROSS-APPELLANTS.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-5073-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 8, 2012 -

Before Judges Axelrad, Sapp-Peterson and Ostrer.

Plaintiff's decedent, Amado Guillermo Orbe (Orbe), sustained fatal injuries while using a manlift to remove overhead piping inside a building. Plaintiff appeals from the trial court order granting partial summary judgment to Safer Holding Corporation ("Safer Holding") and Safer Textile Processing Corporation ("Safer Textile"), (collectively "defendants"). The motion judge declared that at the time of Orbe's fatal accident, his work responsibilities were such that he was part of a joint business relationship that existed amongst and between all of Safer Holding's business entities located in Newark, rendering him an employee of all of those entities for purposes of the Workers' Compensation Act, N.J.S.A. 34:15-1 to -128 ("Act"). Plaintiff also appeals the denial of her motion seeking leave to amend the complaint to name as additional defendants other entities owned by Safer Holding. Defendants cross-appeal from the motion judge's denial of their motion to dismiss plaintiff's common law intentional tort claim under Laidlow v. Hariton Mach. Co., 170 N.J. 602 (2002), and her punitive damages claim.

While we are satisfied the motion judge correctly concluded Orbe was a joint employee of Safer Holding's subsidiaries, namely Kuttner Prints (Kuttner), Meadows Knitting (Meadows), Safer Pigment, and Safer Textile, we find no such joint employment relationship with Safer Holding. It served merely as a holding company with no employees or any other indicia of an employer and employee relationship from which joint employment may be found as to Orbe.

We also reverse the denial of defendants' motion for summary judgment dismissing plaintiff's Laidlow and punitive damages claims. We are satisfied the facts, when viewed in a light most favorable to plaintiff, fail to establish a prima facie case of an intentional wrong sufficient to justify an exception to the exclusivity provisions of the Act, which must be narrowly construed.

Finally, we affirm the denial of plaintiff's motion to amend her complaint to name, as additional parties, other Safer Holding entities. We conclude that because the motion was made on the eve of trial, the motion judge did not abuse his discretion in denying the motion without prejudice to plaintiff seeking leave to conform any judgment reached to the proofs presented at trial.

I.

Our review of a trial court order granting summary judgment is de novo, and we apply the same standard as the trial court in determining whether there are any genuinely disputed issues of material fact sufficient to warrant resolution of the disputed issues by the trier of fact. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Our analysis requires that we first determine whether the moving party has demonstrated that there are no genuine disputes as to material facts, and then we decide "whether the motion judge's application of the law was correct." Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230-31 (App. Div.), certif. denied, 189 N.J. 104 (2006). In so doing, we view the evidence "in the light most favorable to the part[y] opposing summary judgment." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). Because our review of issues of law is de novo, we accord no special deference to the motion judge's conclusions on issues of law. Zabilowicz v. Kelsey, 200 N.J. 507, 512 (2009).

Following are the salient facts we have viewed in a light most favorable to plaintiff. Safer Holding is a textile business owned exclusively by Albert Safer ("Safer") and two trusts created for his children. He started the business in 1977. The holding company is the parent of several core entities: Safer Pigment, Meadows, Kuttner, and Safer Textile.*fn2

Together, these companies formed Safer's textile operation in Newark. Safer Textile, located at 1875 McCarter Highway (1875), handled the dying and finishing of fabrics. Safer Pigment, located at 1825 McCarter Highway (1825), undertook pigment printing on fabrics. Meadows, located at 241 Oraton Street, which was around the corner from 1825 and 1875, was responsible for fabric knitting. Finally, Kuttner, housed in 1875, handled the payroll for the core entities and also provided sales and marketing services for the companies.

Safer was the President and Chief Executive Officer (CEO) of all the core Safer entities. Each core entity had its own employees. Specifically, Kuttner had 51 employees, Meadows had 50 employees, Safer Textile had 151 employees, and Safer Pigment had 8 employees. Each core entity also had its own payroll identification number, but Safer Holding filed one consolidated tax return, including income and loss information for each of the core entities.

Orbe, at the time of his death, worked as an electrician and maintenance worker primarily at Meadows and, when needed, at the other core entities. He was listed on Kuttner's payroll documents, but his health insurance documentation listed Meadows as his employer. During discovery, depositions were taken of Gilberto Martinez and Robert Winning. Winning worked as the maintenance manager for Safer Textile but handled "[r]epairs and maintenance to the equipment at all the sites." Martinez was employed as the maintenance supervisor for Safer Textile and reported to Winning. Winning testified that Safer would ask employees working at one facility to perform work at another facility, stating "[i]f there wasn't a lot of work to be done at the other facility, in order to fulfill the days and time, and keep everybody working, we might have asked an employee to come over and assist in another job." Winning clarified that when he used the term "we," he was specifically referring to Safer. Winning was also unable to recall whose idea it was to use Orbe at 1825 to remove piping, but he agreed that he would have made the decision if he knew that Orbe was available.

Juan Perez, Orbe's co-worker at Meadows, was also deposed. He, like Orbe, worked at multiple locations. He explained that he might work one time at one building, and on another occasion, he might work twenty times at another building. He also testified that equipment was shared and that he observed Orbe operating the manlift at the Oraton Street location, 1875 and "[a]ll over." On the day of Orbe's fatal accident, Winning contacted him at Meadows and told him that he needed Orbe to do a job.

Martinez testified that on the morning of October 11, 2007, he went over to 1875 at the direction of Winning. He indicated that he met Orbe in the maintenance shop at 1875, and together they walked to 1825, where the piping was to be removed. Winning later paged him to meet him at another location, and he left the area at 1825 where he and Orbe had been removing piping.

There were no witnesses to the accident. Perez discovered Orbe slumped over the manlift and immediately ran for help. Winning arrived at the scene, called 911, lowered the manlift, and attempted CPR because he thought Orbe may have had a heart attack. It was not until the next day, while being interviewed by Louis G. Murphy from the Occupational Safety and Health Administration (OSHA), he learned that Orbe's liver had been crushed and that he suffered other internal injuries.

Murphy conducted the OSHA inspection the day after the accident and surmised Orbe "apparently started to raise the platform[,] either intentionally or unintentionally[,] with his left hand on the control . . . ." He believed Orbe "may have been trying to drop the lift a few feet as he was found slumped over the guard rail with his arms extended downward and his pliers, screwdriver and eye glasses on the floor." He recommended that no citation be issued as a result of the accident because it appeared the accident was caused by Orbe "inadvertently raising the platform or attempting to gain a few more inches to enable him to reach the coupling on the conduit." He issued a citation for failure to report the accident within eight hours, as required under OSHA. Murphy's inspection report revealed no equipment malfunctions.

A report from an inspection conducted on behalf of Safer Textile on December 19, 2007 stated that there had been post-sale alterations to the manlift and that it had "clearly fallen into a significant state of disrepair and/or has other deficiencies which would similarly dictate that the unit should be taken out of service until such time as the unit has been thoroughly and properly inspected and all deficiencies corrected." The report identified a number of specific problems with the manlift, including:

* The top rail at the platform entrance was missing. The chain enclosure at the mid-rail had been modified.

* The upper control box did not function correctly. Function tests indicated that the control box wiring had been altered to allow the following:

* The controller activation overrides the enable circuit for all operating modes.

* The platform was permitted to lower even when the emergency stop button was activated.

* There was damage to the electrical cable entering into the upper control box.

Plaintiff's expert conducted an inspection of the manlift on January 8, 2010. His inspection also revealed that the enable button safety feature had been bypassed and the manlift was activated by either intentional or inadvertent contact with the joystick handle. The modification also partially disabled the emergency stop (ES) function, which meant that the platform could still be lowered, even if the ES button had been pressed.

The manlift involved in the incident was a self-propelled elevating platform, serial number 44626, manufactured by Grove, and it was one of two manlifts purchased by Safer Textile from GAR Equipment in 1998. Although both manlifts were initially delivered to Newark following their purchase, manlift 44626 was immediately shipped to another Safer-owned entity, Rainbow Mills, located in Hialeah, Florida. It remained there until sometime in 2002, when it was then returned to Newark.

A manlift enables a worker to perform overhead functions. The 44626 manlift was equipped with a safety feature known as the "[e]nable function." The "[e]nable pushbutton switch," located on the upper control module, is intended to prevent unintentional movement caused by inadvertent contact with the control lever. When working properly, the manlift platform will not raise unless its operator first presses a green enable pushbutton, after which a green LED indicator, located to the left of the enable pushbutton, illuminates and remains illuminated for five seconds, during which time the operator is expected to activate the joystick handle. If the operator fails to activate the joystick handle within those first five seconds, the enable pushbutton must be pressed again in order to reactivate the joystick handle. However, when the joystick handle is activated within those first five seconds, the green LED indicator remains illuminated the entire time the joystick handle is in use.

Records maintained by defendants revealed that on August 12, 2002, a service call was made "to repair Grove Manlift." The August 12 purchase order form stated: "We were unable to repair in house." The following day, GAR Equipment's invoice stated the description of the work done at Safer Textile in Newark, New Jersey was to "[t]rouble shoot electrical problems - [b]ad ground to U.C.B. [-] [s]wapped wires - [t]ested."

Because there were no witnesses to the accident, the exact circumstances of Orbe's fatal injuries are unknown. Plaintiff's expert opined that "[t]here can be no doubt [Orbe] was crushed and fatally injured on 10/11/07 because the enable switch circuit was intentionally overridden. [Orbe] would not have been injured if the enable pushbutton circuit was functional[,]" in accordance with the Grove specifications. Defendants' expert disagreed and expressed the opinion that based upon the position in which Winning found Orbe relative to the manlift control unit and the OSHA inspector's deposition testimony, Orbe "would had to have placed his (left[]) hand on the joystick control handle and pulled it back, in order for the platform to raise." He believed that Orbe was attempting to raise the platform at the time he sustained his fatal injuries and that "he would have accomplished this action regardless of whether or not the enable safety circuit had been bypassed."

In granting partial summary judgment to defendants, the motion judge first addressed Orbe's employment status at the time of the accident. The judge found that it was clear "[Orbe] himself implicitly recognized his obligation to work at any of the core Safer sites in Newark, notwithstanding that he was listed[,] for payroll purposes[,] as an employee of Kuttner[.]" Noting that although sales and marketing services were the "ostensible" business of Kuttner, the judge found that Orbe was an electrician and maintenance worker and performed no sales or marketing services. Instead, the judge noted that Orbe was assigned to Meadows, "as part of the allocation of maintenance personnel" and that Orbe "often worked at other Safer sites in Newark and was not restricted" to Meadow's premises at Oraton Street.

The judge observed further that "[i]t was common practice to assign maintenance personnel to whatever site needed their services, irrespective of whether it was the knitting operation, the pigment operation, the printing operation or the buildings themselves." In particular, the judge found the record established that Orbe had worked at different sites more than fifty times in the six months prior to his death, and on the date of his death, he "was using a Safer Textile manlift to work on property leased to and controlled by Safer Holding." Moreover, the judge found Orbe's work was "clearly subject to the direction and control of Brian Winning, the maintenance supervisor for all the Safer entities." The judge noted Winning's services were not limited to a specific site, and he assigned maintenance personnel to tasks "irrespective of where they may have reported each morning."

Hence, the judge reasoned:

[T]he facts show an implied contract of hire that embraced services for all the Safer core entities; regular, routine and customary assignments to perform maintenance tasks at any Safer site; submission to the control and direction of the general maintenance supervisor for all the Safer companies; use of equipment owned by any Safer entity to perform maintenance tasks for any other Safer entity; and acceptance of compensation through an entity for which [Orbe] performed no services but which acted as the payroll arm for the Safer companies.

Beyond this, the judge concluded there was a joint business arrangement among all the core Safer companies, under which Kuttner handled the sales and marketing for all of the Safer fabrics, whether knitted, pigmented, or dyed. He found that all of the Safer companies were engaged in the fabric business, all shared a single CEO and CFO, filed a consolidated tax return including the income of all the core entities, and they all regularly shifted maintenance equipment and personnel without a separate record of the assignment. The motion judge therefore concluded, as a matter of law, that Safer Textile and Safer Holding were both subject to the Act based upon the "overwhelming indicia of a master-servant relationship with [Orbe] and a joint business arrangement among the Safer core companies which compels the conclusion that there is a unity [of] control and authority among Kuttner, Safer Holding, Safer Textiles and Meadows."

Turning to defendants' claim that they were entitled to summary judgment on plaintiff's common law intentional tort action and punitive damages claim, the judge found that when the facts were viewed in the light most favorable to plaintiff, prior to the accident, the manlift had been deliberately rewired with the installation of a jumper wire designed to disengage the enable button safety feature. In addition, the judge found that notwithstanding the rewiring of the enable switch button, the switch activated an "on" light when pushed. Further, the judge reasoned that because the manlift was under the care of the Safer defendants and its maintenance staff was charged with responsibility for daily inspections and routine repairs, it was reasonable to infer that the Safer defendants either "undertook the rewiring or, during their periodic maintenance and daily inspections, discovered [the rewiring] and deliberately concealed the problem from their employees."

Addressing the absence of detailed maintenance and inspection records, the judge concluded that defendants "may not rely upon their own lack of diligence in memorializing their conduct to create an inference of ignorance of the problem." Moreover, the judge reasoned that because inspectors knew employees using the manlift would rely on the thoroughness of the inspections and maintenance, users of the manlift would be "lulled by that routine program into a false sense of confidence that the manlifts [were] not rigged for their inevitable injury."

Finally, in denying summary judgment to defendants on the punitive damages claim, the judge found the facts, when viewed most favorably toward plaintiff, established that defendants had "consistent and exclusive care, custody, control and regular maintenance of the manlift[,]" from which an inference could be drawn that they rewired the manlift and that "[t]he rewiring was undertaken in such a way as to mislead a user that the enable switch still worked because the enable switch, when pushed, activated [an] 'on' light." The judge concluded: "One would be hard-pressed to envision a more nefarious trap for the unwary." The judge was satisfied that if these facts were proved, a jury could reasonably infer defendants "either undertook the rewiring or, during their periodic maintenance and daily inspections, discovered it and deliberately concealed the problem from their employees."

Plaintiff moved for reconsideration and, alternatively, to amend her complaint to name additional Safer-affiliated companies as defendants. The judge denied the motion, noting the trial date was imminent and depending upon the evidence elicited during trial, a "judgment can always be crafted to follow the proofs in a case." Thus, the judge concluded plaintiff was not "completely out of the woods with regard to the issue[,]" but that the "hour [was] too late" to add new parties to the case. The present appeal followed.

On appeal, plaintiff raises the following points for our consideration:

POINT I

SUMMARY JUDGMENT FOR THE SAFER DEFENDANTS WAS NOT WARRANTED IN THIS CASE DUE TO THE SIGNIFICANT DISPUTES OF MATERIAL FACT PRESENTED TO THE MOTION JUDGE.

A. THE GENERAL RULE IS TO DENY WORKERS COMPENSATION IMMUNITY ON THE SOLE GROUND OF CORPORATE AFFILIATION.

B. MR. ORBE CANNOT BE AN EMPLOYEE OF FOUR

(4) CORPORATE ENTITIES: SAFER HOLDING, SAFER TEXTILES AND MEADOWS FOR PURPOSES OF THE WCA IMMUNITY.

POINT II

IF THE TRIAL COURT'S APRIL 1, 2011 ORDER STANDS, THE LAW OF THE CASE SUPPORTS THE AMENDMENT OF THE PLAINTIFF/APPELLANT'S COMPLAINT TO INCLUDE ALL SAFER AFFILIATED COMPANIES.

In their cross-appeal, defendants raise the following points for our consideration:

POINT III*fn3

[THE MOTION JUDGE] ERRED WHEN HE DENIED SUMMARY JUDGMENT TO DEFENDANTS AS PLAINTIFF'S CLAIMS ARE WITHOUT MERIT AND ARE NOT SUSTAINABLE AS A MATTER OF LAW UNDER A LAIDLOW THEORY OF LIABILITY.

POINT IV [THE MOTION JUDGE] ERRED WHEN HE DENIED SUMMARY JUDGMENT TO THE SAFER DEFENDANTS AS PLAINTIFF'S PUNITIVE DAMAGE CLAIMS ARE WITHOUT MERIT AND ARE NOT SUSTAINABLE AS A MATTER OF LAW.

II.

The motion judge found that Orbe was an employee of all of the Safer core entities, given the nature of his work responsibilities. Thus, the starting point in our analysis is an examination of the employer and employee relationship between Orbe and defendants at the time he sustained his fatal injuries.

Our courts have utilized two methods of analysis for determining whether an employee has more than one employer, the "special employment" analysis and the "joint employment" analysis. See Hall v. Fanticone, 322 N.J. Super. 302 (App. Div.) (describing the joint employment theory), certif. denied, 162 N.J. 487 (1999); Blessing v. T. Shriver & Co., 94 N.J. Super. 426 (App. Div. 1967) (setting forth the special employment theory). We focus our attention upon the "joint employment" analysis because the motion judge concluded that Orbe worked at the Safer entities as a part of a joint employment venture.

In Hall, the injured plaintiff, a truck driver, claimed that he was employed by Chemical Transport, Inc. (CTI). Hall, supra, 322 N.J. Super. at 304. It was undisputed that the plaintiff received his paychecks from D & P, a CTI-affiliated company, and that D & P owned the trucks leased to CTI, which the plaintiff operated. Id. at 305. It was also undisputed that the overseer and general manager of D & P controlled the plaintiff's day-to-day work assignments. Ibid. The plaintiff nonetheless contended he was employed exclusively by CTI because the work he performed was solely to advance CTI's business purposes and not the business interests of D & P. Id. at 304. In finding that the plaintiff's suit against D & P was barred, we stated: "Although CTI and D & P were separate corporations, each of which pursuing its own business purpose, their shared business premises, equipment, and chief operating officer, enabled each to exercise sufficient control over the other's sphere of interest." Id. at 308. As such, we were satisfied the unity of control and authority was clearly established. Ibid.

In addition to considering the unity of control and authority, we have previously held that the determination whether a joint employment relationship exists should also include an examination of other indicia of a joint relationship, particularly where the circumstances of the business relationship depart from traditional modes, "in order to determine if it is truly that of master-servant." Kalnas v. Layne of New York Co., 173 N.J. Super. 492, 497 (App. Div. 1980). Therefore, we have not only looked to determine whether there is a "unity of control and authority," but we have also considered whether there is evidence of a corresponding intermingling of the employer's duties "to the point where it is impossible to separate them." Knight v. Cohen, 56 N.J. Super. 516, 520 (App. Div. 1959), aff'd, 32 N.J. 497 (1960).

Factors we have viewed as supporting joint venture employment include "the employer's supervisory power, his right to control the activities of the employee, his right to terminate the relationship, his payment to the employee of regular wages for services, and his provision of tools, equipment and facilities." Hall, supra, 322 N.J. Super. at 307 (quoting Kalnas, supra, 173 N.J. Super. at 414). When a joint employment relationship exists, the employee is barred from maintaining a negligence claim against the joint employer. Hall, supra, 322 N.J. Super. at 308.

Here, notwithstanding that Orbe was listed for payroll purposes as an employee of Kuttner, his duties were totally unrelated to Kuttner, which functioned as the sales and operating arm of Safer Holding. The undisputed evidence in the record established that Orbe was primarily assigned to Meadows but often worked at the other Safer sites located at 1875 and 1825. Additionally, notwithstanding that Winning, during his deposition, provided inconsistent testimony concerning his supervisory role over Orbe, he acknowledged that if Orbe had been available on October 11, 2007, as he obviously was, he would have directed him to 1825 to remove the piping. Further, the fact that 1875 and 1825 were next door to each other and around the corner from Meadows facilitated the ability of the Safer core entities, when necessary, to share equipment and personnel in their corresponding textile operations.

We find no merit to plaintiff's contention that the joint employment analysis is limited to those circumstances where there are only two employers involved. Rather, we express the view that the factors set forth in Hall, which we found established a joint employment relationship between CTI and D & P, may also be considered in the context of multiple employers, as long as the proofs establish the employee is under contract directly or impliedly with multiple employers and under the simultaneous control of the multiple employers, simultaneously performs services for all of the employers, and the service for each employer is the same as, or is closely related to, that for the other.

[Hall, supra, 322 N.J. Super. at 307.]

The motion judge therefore properly concluded, at least as to Safer Textile, Safer Pigment, Meadows, and Kuttner:

[T]he facts show an implied contract of hire that embraced services for all the Safer core entities; regular routine and customary assignments to perform maintenance tasks at any Safer site; submission to the control and direction of the general maintenance supervisor for all the Safer companies; use of equipment owned by any Safer entity to perform maintenance tasks for any other Safer entity; and acceptance of compensation through an entity for which [Orbe] performed no services but which acted as the payroll arm for the Safer companies.

We reach no such conclusion, however, as to Safer Holding. 1825, where Orbe sustained his fatal injuries, formerly housed Safer Pigment. It dissolved in 2006 and assigned its lease to Safer Holding. On the day of Orbe's fatal accident, he was removing piping at 1825 to facilitate the move of Meadows into the building. Orbe's work on that day was for the benefit of Meadows, not its landlord, Safer Holding. Safer Holding had no employees and no equipment, did not pay Orbe's wages, did not supervise Orbe's work, nor did it have the power to hire or fire Orbe or his supervisors, Winning and Martinez. Consequently, the unity of control and authority, along with the "intermingling of the employer's duties . . . to a point where it was impossible to separate them[,]" did not exist as to Safer Holding. Knight, supra, 56 N.J. Super. at 520. Consequently, we reverse the grant of partial summary judgment to Safer Holding as to plaintiff's claim that it was Orbe's employer.

III.

The motion judge next concluded genuinely disputed issues of fact precluded the grant of summary judgment on plaintiff's Laidlow and punitive damages claims. We disagree. In view of our determination that Safer Holding was not Orbe's employer, our consideration of plaintiff's Laidlow and punitive damages claims is limited to Safer Textile only.

A.

The Act provides the exclusive remedy for compensation to an injured worker for work-related injuries, except for an "intentional wrong." N.J.S.A. 34:15-8. An employer who causes the death or injury of an employee by committing an "intentional wrong" will not be insulated from common law actions. Laidlow, supra, 170 N.J. at 606 (citing Millison v. E.I. Dupont DeNemours & Co., 101 N.J. 161, 169 (1985)). Because the overarching goal of the Act is to provide compensation to injured workers for as many work-related injuries as possible, the Act's "intentional wrong" exception must be narrowly construed:

Even an injury caused by either gross negligence or an abysmal lack of concern for the safety of employees is insufficient to satisfy the "intentional wrong" exception. Rather, the level of intent sufficient to overcome the exclusivity of the Act is a deliberate intention to injure. An employer acts with such an intent when he desires to cause consequences of his act or is substantially certain that such consequences will result from his actions. [Kaczorowska v. Nat'l Envelope Corp., 342 N.J. Super. 580, 587-88 (App. Div. 2001) (internal citations and quotations omitted).]

In Millison, the Court was confronted with the task of identifying "what categories of employer conduct will be sufficiently flagrant so as to constitute an 'intentional wrong,' thereby entitling a plaintiff to avoid the 'exclusivity' bar of N.J.S.A. 34:15-8[.]" Millison, supra, 101 N.J. at 176. There, the plaintiffs sought to pursue their common law claims against their employer for knowingly and deliberately exposing them to a hazardous work environment and then fraudulently concealing from them the existence of occupational diseases. The Court announced the standard by which to measure whether an employer's conduct rose to the level of an "intentional wrong" of the type the Legislature contemplated should operate as an exception to the exclusivity provisions under the Act. Id. at 177-80. Before doing so, the Court stated that "we are careful to keep an eye fixed on the obvious: the system of workers' compensation confronts head-on the unpleasant, even harsh, reality -- but a reality nevertheless -- that industry knowingly exposes workers to the risks of injury and disease." Id. at 177.

The Court cited approvingly the "intent" analysis of Dean Prosser and adopted a "substantial certainty" test:

[T]he mere knowledge and appreciation of a risk -- something short of substantial certainty -- is not intent. The defendant who acts in the belief or consciousness that the act is causing an appreciable risk of harm to another may be negligent, and if the risk is great the conduct may be characterized as reckless or wanton, but it is not an intentional wrong. [Ibid. (quoting W. Prosser & W. Keeton, The Law of Torts, § 8 at 36 (5th ed. 1984)).]

The Court equated "substantial certainty" with virtual certainty, and trial courts are now required to determine whether the employer's conduct evidenced a virtual certainty of death or injury. Id. at 178. Moreover, in addition to applying Dean Prosser's "substantial certainty" test, the Court directed trial courts to make a second inquiry. This second inquiry requires trial courts to determine whether the context in which the employer's conduct occurred leading to an employee's injury or death may "fairly be viewed as a fact of life of industrial employment, or is it rather plainly beyond anything the

[L]egislature could have contemplated as entitling the employee to recover only under the [Act]?" Id. at 179.

The Court reaffirmed its holding in Millison seventeen years later in Laidlow, where it also observed that proving both the conduct and context prongs may involve consideration of the same facts and circumstances. The jury ordinarily will determine the conduct prong, and the court, as a question of law, will resolve the context prong. Laidlow, supra, 170 N.J. at 623. One year later, in what may be characterized as the "intentional wrong" trilogy of cases, Tomeo v. Thomas Whitesell Constr. Co., Inc., 176 N.J. 366 (2003), Mull v. Zeta Consumer Prods., 176 N.J. 385 (2003), and Crippen v. Cent. Jersey Concrete Pipe Co., 176 N.J. 397 (2003), the Court applied the Millison conduct and context analysis in three very different fact patterns.

The principle that emerged from those cases is that the mere act of an employer in exposing a worker to the risk of injury or death does not establish a per se intentional wrong. See Laidlow, supra, 170 N.J. at 622 (noting that it is not per se an intentional wrong to "remove[] a guard or similar safety device from equipment or machinery"). See also Mabee v. Borden, Inc., 316 N.J. Super. 218, 230-31 (App. Div. 1998) (rejecting the plaintiff's argument that alteration or removal of a safety device from a workplace machine presents a per se prima facie case of "intentional wrong.")

The Millison "conduct" prong requires the court to determine whether a plaintiff has presented evidence from which a jury could reasonably conclude "the employer acted with knowledge that it was substantially certain that a worker would suffer injury." Laidlow, supra, 170 N.J. at 623. No one factor related to the employer's conduct is dispositive; rather, it is the totality of the circumstances existing both leading up to the accident and at the time of the accident that must be examined. Id. at 621-23; see also Mull, supra, 176 N.J. at 392. If the answer to this question is affirmative, the court next determines whether the context in which the injury was sustained was a "simple fact of industrial life or are outside of the purview of the conditions the Legislature could have intended to immunize under the [Act]." Laidlow, supra, 170 N.J. at 623.

Resolution of the context prong is a question of law for the court and Laidlow recognized that "[i]n general, the same facts and circumstances will be relevant to both prongs of Millison." Ibid. At the conclusion of this analysis, "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.

Here, the motion judge made four findings that led him to deny defendants' motion to dismiss the common law intentional tort and punitive damages claims. First, the judge found "[t]he rewiring [of the upper control box] was undertaken in such a way as to mislead a user that the enable switch still worked because the enable switch, when pushed, activated [an] on light. One would be hard-pressed to envision a more nefarious trap for the unwary." Second, the judge found the manlift had been under the control of defendants and their maintenance personnel for several years that therefore it was "reasonably inferable that [defendants] either undertook the rewiring or, during their periodic maintenance and daily inspections, discovered it and deliberately concealed the problem from their employees."

Third, the judge concluded the fact that defendants did not keep records of daily inspections and periodic repairs could not be used to "create an inference of ignorance of the problem." Finally, the judge reasoned that defendants had to know that employees who periodically used the manlift would rely upon defendants' inspections and maintenance as a basis for having confidence that the machine was "not rigged for their inevitable injury." We now address each of these findings in our consideration of the conduct and context prongs.

While the motion judge referenced the two-pronged approach found in Laidlow, he did not explain the relationship of his findings to the two prongs. Moreover, his conclusion that defendants created a "trap for the unwary" was based upon his apparent conclusion that defendants manipulated the green LED in addition to the rewiring that disengaged the enable button. There is, however, nothing in the record to indicate defendants manipulated the LED light so as to give the appearance that the "enable switch still worked because the enable switch, when pushed, activated [an] 'on' light." What the undisputed evidence revealed is that the enable button and the green LED were two separate functions.

Both experts found that as a result of the rewiring, a manlift operator could activate the joystick handle without first pressing the enable button. When properly operating, however, the enable button prevented unintentional movement caused by inadvertent contact with the control lever. Once the rewiring bypassed that step, the control lever could be activated either through intentional contact as well as by inadvertent contact. The green LED to the left of the enable button served a separate function. It illuminated when the enable button was pressed and remained illuminated for five seconds. If the control lever was not activated during those five seconds, the machine would disengage and the manlift operator would have to repeat the step of pressing the enable button. On the other hand, if the control lever was activated during the five seconds the green LED was illuminated, the LED would remain illuminated for as long as the control lever was being utilized. Therefore, because the green LED functioned as a signal that the machine was in operation mode, it illuminated any time there was contact with the machine's control lever, whether intentional or inadvertent.

Although the modification of the wiring eliminated the enable button's safety feature, there is no evidence in the record that the green light's apparent purpose -- to alert operators when the machine was in operation mode -- was in any way altered by the modification. Likewise, there is nothing in the record to indicate that the modification altered the mechanism of the green LED. Whether illuminated due to intentional contact or illuminated as a result of inadvertent contact, the green LED's illumination continued to alert operators that the machine was in operation mode.

Next, proof that the manlift was under the control of defendants and that defendants more than likely undertook the rewiring merely established, for summary judgment purposes, that the rewiring was intentionally undertaken but nothing more. As the Court made clear in Laidlow, "[o]ur holding is not to be understood as establishing a per se rule that an employer's conduct equates with an 'intentional wrong' within the meaning of N.J.S.A. 34:15--8 whenever that employer removes a guard or similar safety device from equipment or machinery[.]" Id. at 622-23 (emphasis added). Thus, when viewed in the light most favorable to plaintiff, beyond establishing that defendants' intentional rewiring disengaged the enable button, plaintiff presented no additional evidence from which the jury could reasonably conclude defendants acted with knowledge that it was substantially certain plaintiff would have inadvertent contact with the control lever, thereby causing inadvertent movement of the manlift. There is, for example, no evidence of any prior history of complaints of the machine's unintentional movement due to inadvertent contact. Nor is there any evidence in the record of any deceptive conduct by defendants to conceal the fact that the machine moved through inadvertent contact. We do not suggest that such factors must always be found in order to establish conduct that constitutes an intentional wrong under the Act. See Mull, supra, 176 N.J. at 391 (noting that lack of deception was not fatal to worker's intentional wrong because of other factors unique to the case). Here, however, beyond presuming defendants intentionally rewired the upper control panel, which caused the enable button to become disengaged, plaintiff presents no other factors evidencing an "intentional wrong" within the meaning of the Act.

Next, poor records of maintenance and repairs may establish negligence or even gross negligence, but they do not establish knowing conduct from which a jury could reasonably conclude that it was substantially certain plaintiff would sustain any injury. See Millison, supra, 101 N.J. at 183 (noting that "[p]roof that the doctors negligently misdiagnosed plaintiffs' x-rays or estimated poorly concerning the seriousness of plaintiffs' maladies will be insufficient to establish a cause of action outside the [Act]").

Finally, the motion judge's finding that defendants' knowledge that workers would rely upon their inspections and repairs as a basis for their confidence the machine was working properly, rather than "rigged," is rooted in the judge's finding that defendants acted intentionally in rewiring the manlift and attempted to conceal their intentional behavior with the green LED light mechanism. As noted earlier, the fact of the intentional rewiring, which resulted in the disabling of the enable button safety feature, does not, per se, establish an "intentional wrong" within the meaning of the Act. Laidlow, supra, 170 N.J. at 622-23. Likewise, there is nothing in the record directly or impliedly establishing a deliberate intent to conceal the rewiring through the green LED illumination, as the motion judge mistakenly found.

Moreover, noticeably absent from the facts here is any evidence of how long the enable button had been disengaged, how often the manlift was used on any given day following the modification, prior complaints as to the manlift's sudden startup proclivity, or prior injuries to workers related to the manlift's start-up mechanism. Further, it is undisputed that plaintiff presented no evidence of defendants' subjective intent to injure Orbe or conceal the modifications. These are factors critical to the determination of whether a disputed issue of fact exists as to the substantial certainty of injury resulting from defendants' conduct. Without the presence of such factors in the record, the finding that a jury could reasonably conclude defendants knowingly acted with a virtual certainty that death or injury would occur is a finding based solely upon the fact of the rewiring alone. As the Court cautioned in Laidlow, it is not per se an "intentional wrong" to "[remove] a guard or similar safety device from equipment or machinery." Id. at 622.

In short, the totality of the facts in the record failed to establish a jury question on the conduct prong. Plaintiff also alleges that Orbe's "safety was intentionally disregarded by [defendants] to increase productivity." Other than advancing this contention by way of argument, the record is devoid of any facts in the record from which even an inference could be drawn that increased productivity was the reason why the enable circuit was overridden. Bare allegations, without more, will not defeat a summary judgment motion. Peterson v. Twp. of Raritan, 418 N.J. Super. 125, 132 (App. Div. 2011).

Because the proofs fail to raise a jury question as to the conduct prong, we need not address the context prong, namely, whether plaintiff's allegations, if proved, constitute a simple fact of industrial life or are outside the purview of the conditions the Legislature could have intended to immunize under the Act's bar. Id. at 623. We note, however, the limited facts that we have found to be insufficient to raise a jury question on the conduct prong of the Millison analysis are the same facts we consider under the context prong. Based upon those facts, the conclusion is inescapable that the context in which Orbe sustained his fatal injuries was intended to be addressed under the Act's compensation scheme, rather than as a common law intentional tort, because such facts reflect the reality of industrial life. Ibid.

In view of our disposition of plaintiff's common law intentional tort claim, plaintiff's proofs are equally lacking to submit her claim for punitive damages to a jury. Finally, in light of our conclusion that Safer Holding was not Orbe's employer, we take no position as to what, if any, cause of action remains against Safer Holding.

We affirm the summary judgment granted to Safer Textile, reverse the summary judgment granted to Safer Holding, and remand for further proceedings. Additionally, we reverse the denial of summary judgment as to the Laidlow intentional tort and punitive damages claims against Safer Textile and enter judgment in favor of Safer Textile. We do not retain jurisdiction.


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