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Bernard Menkevich v. Delta Tools

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


March 26, 2012

BERNARD MENKEVICH, PLAINTIFF-APPELLANT,
v.
DELTA TOOLS, DEFENDANT, AND HILL PHOENIX REFRIGERATION, DEFENDANT-RESPONDENT.

On appeal from Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-2322-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 7, 2012

Before Judges Messano and Yannotti.

Plaintiff Bernard Menkevich was injured while operating a table saw during the course of his employment as a carpenter in a mill owned and operated by defendant Hill Phoenix Refrigeration. In this action, plaintiff asserted a tort claim against defendant seeking damages for his personal injuries.*fn1

Plaintiff appeals from an order entered by the trial court on October 29, 2010, granting summary judgment in favor of defendant on the ground that his claims are barred by the Workers' Compensation Act (the WCA), N.J.S.A. 34:15-1 to -142. We affirm.

I.

This appeal arises from the following facts. In September 2005, plaintiff began working for East Coast Displays (East Coast), an entity owned by Thomas Sellers (Sellers). Plaintiff was employed as a carpenter in the company's mill. Defendant acquired East Coast in April 2008, and retained Sellers as the production manager for the mill. After defendant acquired the company, it mandated the use of protective guards on all saws; however, defendant did not install guards on the machinery.

On June 4, 2008, plaintiff was using a table saw to make plunge cuts in six pieces of lumber. A saw operator makes these cuts by holding the lumber at an angle and lowering it onto the blade of the saw. Plaintiff successfully made five plunge cuts when he noticed that the saw blade was dull.

Plaintiff changed the blade but the replacement blade was duller than the blade he used to make the other cuts. When he attempted to make the sixth plunge cut, the board became caught in the blade and kicked back towards plaintiff, pulling his hand toward the blade. Plaintiff sustained severe injuries to several fingers of his left hand.

At his deposition, plaintiff testified that he has been a cabinetmaker for over thirty years, and he considered himself an expert in the use of a table saw. He stated that, on the day of the accident, he set the blade of the saw at two-and-one-half to three inches in height. Plaintiff said that it would have been safer if he lowered the blade but if he did so, it would have taken him more time to make the cuts and the cuts would have been "sloppier."

Plaintiff also said that it would have been safer if he clamped each piece of wood down to the saw when he made the cuts but he believed he could make the cuts faster if he did not use the clamps. Plaintiff acknowledged that it was riskier to make the cuts in this manner but he believed he could manage the risk. Plaintiff also acknowledged that he could have made the cuts using a jigsaw, router or band saw, or have someone else make the cuts on a computerized machine.

Plaintiff said that he did not use the router or jigsaw because it would have taken him more time to make the cuts. He did not use the band saw because the blade on that saw was dull. In addition, plaintiff did not have the cuts made on the computerized machine because the machine's operator was out and plaintiff would not have been able to complete the cuts at least until the following day. He admitted that it would have been safer to make the cuts using the jigsaw, router or band saw in the mill.

It is undisputed that there was no safety guard on the table saw plaintiff was using. Plaintiff testified that he never saw a safety guard on the table saw. He said that a safety guard had been placed near the saw but it did not fit the machine. He claimed that defendant tried to locate safety guards for the saws but was unable to find them. Plaintiff was not concerned by the lack of safety guards, and he never complained to either East Coast or defendant about this situation.

Karl Bateman (Bateman) worked with plaintiff during the time East Coast owned the mill. Bateman was deposed. He testified that a day or two before an inspection by the Occupation Safety and Health Administration (OSHA) or an insurance agent, Sellers directed him to "put the [safety] guards back on the saws and clear the alleyways" so that the company would appear "somewhat compliant" with safety regulations. According to Bateman, Sellers did not want safety guards on the saws because it slowed down the work. Bateman stated that, after an inspection, Sellers told him "to get [the guards] off" so the workers "can cut wood."

Joshua Wallace (Wallace) also worked with plaintiff while East Coast owned the mill. Wallace was deposed and testified that he never saw a safety guard on the table saw. He said that, when East Coast hired him, he asked Sellers about the safety guards. Sellers "basically" told him that he "should be good enough" to operate a saw without a guard.

Emily Gritchell (Gritchell) also was deposed. She testified that shortly after defendant acquired East Coast, she conducted a safety training session for the workers at the mill. Gritchell said that, during the training session, plaintiff asked her about situations in which he might need to remove a safety guard in order to make a certain cut. Gritchell told plaintiff he was not allowed to remove a safety guard from a saw.

In discovery, plaintiff presented an expert report from Barry White (White), who opined that defendant and East Coast violated OSHA standards, which required that that safety guards be attached to all saws to "protect workers who do not use good judgment at all times." White stated that defendant should have fastened a safety guard to the table saw in such a manner so that it could not be removed. White opined that, because defendant had not done so, there was a substantial certainty that someone would be injured while operating the saw.

A Delta Tools employee, Richard Schafebook (Schafebook), was deposed. He testified that a placard on the table saw in the mill warned users against free-hand cutting of wood. Schafebook said that a plunge cut is a type of free-hand cutting. He said that there also is a warning on the machine which states that the material being cut must "be flat on the table top and firmly supported against the 'fence[.]'" Schafebook states that plaintiff was not using the saw in this manner when he was injured.

Lewis C. Brickner, Jr. (Brickner), who was Vice President of Engineering and Product Development from 1986 to 2003 at Delta Tools, watched a video recording in which plaintiff demonstrated how the accident occurred. Brickner said that video indicated that plaintiff violated several rules for the use of the saw. Among other things, plaintiff failed to secure the wood he was cutting, fed the wood in the same direction of the rotation of the blade, used a dull blade, and performed a free-hand operation. Brickner said that the simplest way for plaintiff to cut the wood here would have been to stack the pieces and cut them on the band saw all at once. This would have been time efficient and safe.

On September 1, 2010, defendant filed a motion for summary judgment, arguing that plaintiff's claims were barred because the WCA provided the exclusive remedy for plaintiff's injuries. The trial court considered the motion on October 29, 2010, and on that date, filed a written opinion concluding that plaintiff's claims were barred by the WCA. The court entered an order dated October 29, 2010, granting summary judgment to defendant. This appeal followed.

II.

Plaintiff argues that the trial court erred by determining that his claims are barred by the WCA. We disagree.

The WCA provides that when an employer and it's employee have, by express or implied agreement, accepted the WCA's provisions, and the employee qualifies for benefits thereunder, the employee "shall ordinarily be barred from the pursuit of other remedies." Millison v. E.I. Du Pont de Nemours & Co., 101 N.J. 161, 169 (1985). The WCA states that if an employee's injury or death is compensable under [the WCA], a person shall not be liable to anyone at common law or otherwise on account of such injury or death for any act or omission occurring while such person was in the same employ as the person injured or killed, except for intentional wrong. [N.J.S.A. 34:15-8.]

In order for an employee to fall within the exception for an "intentional wrong" in N.J.S.A. 34:15-8, the employee must establish that the employer knew that its actions were substantially certain to result in an employee's injury or death. Millison, supra, 101 N.J. at 177-78. The employee also must show that the resulting injury and the circumstances under which it was sustained are not "a fact of life of industrial employment" and are "plainly beyond anything the [L]egislature could have contemplated as entitling the employee to recovery only under the [] Act[.]" Id. at 179.

In Laidlow v. Hariton Machinery Co., Inc., 170 N.J. 602 (2002), the Court stated that, when an employee brings a tort action against his employer for an injury compensable under the WCA, and the employer moves for summary judgment based on the WCA's exclusive remedy provision, the trial court must make two inquiries.

The first is whether, when viewed in a light most favorable to the employee, the evidence could lead a jury to conclude that the employer acted with knowledge that it was substantially certain that a worker would suffer injury. If that question is answered affirmatively, the trial court must then 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 the Legislature could have intended to immunize under the Workers' Compensation bar. Resolving whether the context bar of Millison is met is solely a judicial function. 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. [Id. at 623.]

In this case, the trial court determined that plaintiff had not presented sufficient evidence to raise a jury question as to whether defendant acted with knowledge that it was substantially certain a worker would suffer injury. The court also concluded that plaintiff's injuries and the circumstances under which they were sustained are a fact of industrial employment and within the scope of the immunity provided by N.J.S.A. 34:15-8.

As we have explained, the evidence before the trial court established that defendant instructed its workers that they should not operate the equipment without safety guards but defendant never implemented or enforced that policy. The evidence also established that plaintiff and defendant's other employees operated the saws in the mill without safety guards.

This evidence would permit a reasonable fact finder to infer that defendant appreciated the risk resulting from operation of the saws without safety guards, and its conduct may have been negligent. However, based on this evidence, a reasonable fact finder could not conclude that defendant acted with a substantial certainty that one of its employees would be injured under the particular circumstances presented in this case.

Here, plaintiff chose to use the unguarded table saw to make the plunge cuts in the lumber, and he acknowledged that he could have made the cuts safely on a jigsaw, router or band saw. He also could have had the cuts performed by another worker on the computerized machine, but chose to make the cuts on the unguarded table saw. Brickner testified that plaintiff violated several rules for use of that saw. Brickner said that the use of the band saw would have been safer and time-efficient.

In our view, the trial court correctly determined that plaintiff had not presented sufficient evidence to raise a genuine issue of material fact as to whether defendant acted with substantial certainty that an employee would be injured making plunge cuts in wood on the equipment available for that purpose. We are satisfied that the evidence on this issue was "'so one-sided'" that defendant was entitled to prevail as a matter of law. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986)).

Even if we were to conclude that the evidence presented a jury question as to whether defendant acted with a substantial certainty that an employee would be injured if he used an unguarded table saw to make plunge cuts, we are convinced that the trial court correctly found that the injuries at issue here, and the circumstances under which they occurred, can fairly be viewed as a fact of life of industrial employment, and defendant's conduct was not beyond the purview of the conduct the Legislature intended to immunize from liability under N.J.S.A. 34:15-8.

Here, defendant provided plaintiff with equipment that would have allowed him to make the plunge cuts in a safe and time-efficient manner. He nevertheless chose to use the unguarded table saw to make the cuts. In our view, it is a fact of industrial employment that an employee could be injured under these circumstances. Therefore, defendant is entitled to immunity under N.J.S.A. 34:15-8.

III.

Our conclusion is supported by Tomeo v. Thomas Whitesell Constr. Co., Inc., 176 N.J. 366 (2003). In that case, the plaintiff was employed to install sprinkler systems in commercial buildings. Id. at 367. The plaintiff and other employees were assigned to assist in snow removal. Ibid. After a snow storm, the plaintiff was assigned to operate a two-stage snow blower, which had an intake propeller that delivered snow to an ejection propeller that ejected the snow out through a chute. Id. at 368.

The snow blower had a safety lever that activated the propellers when squeezed and deactivated the propellers when released. Ibid. The safety lever had been taped in the operational position. Ibid. While the plaintiff was operating the machine, snow became stuck in the ejection chute two or three times. Ibid. The plaintiff used his hand to push the snow down into the chute. Ibid. The last time he did so, the propeller caught his hand, injuring his fingers. Ibid.

The plaintiff filed a tort action against his employer, and the employer filed a motion for summary judgment based on the immunity provided by N.J.S.A. 34:15-8. Id. at 369. The trial court denied the motion, the case was tried and a judgment entered for the plaintiff. Ibid.

We reversed, holding that summary judgment should have been granted. Ibid. The Supreme Court affirmed. Id. at 378. The Court concluded that the plaintiff failed to satisfy either the conduct or context prongs of the Millison test. Id. at 376-77.

The Court determined that, even if the defendant had disabled the safety lever on the snow blower, there was insufficient evidence to show that the defendant acted with virtual certainty that one of its employees would be injured when using the machine. Id. at 374. The Court also determined that there was no evidence that the employer's actions were egregious and beyond any conduct the Legislature intended to immunize in N.J.S.A. 34:15-8. Ibid.

Furthermore, when discussing the context prong of the Millison test, the Court stated that the plaintiff should have known of the dangers inherent in inserting his hand into the snow blower's chute while the propellers were operating. Id. at 377. The Court stated that the labels on the machine warned of the dangers of the machine, which were obvious. Id. at 377-78.

Significantly, the Court said that the facts were "analogous to the case of a carpenter whose hand is injured on a power saw when the carpenter removes a piece of wood from an unguarded saw blade. In both instances, the Legislature contemplated that those accidents would be part and parcel of workplace hazards covered by workers' compensation." Id. at 378.

In this case, plaintiff was not operating a consumer product but he had thirty-years of experience as a carpenter and was experienced in the use of table saws. He was well aware of the dangers posed by the use of an unguarded table saw to make plunge cuts. He chose to make those cuts using the unguarded machine, even though there were other machines in the mill that he could have used to make the cuts safely.

In Tomeo, the Court said that "[o]ur law does not impose a duty on an employer to prevent an employee from engaging in self-damaging conduct absent a showing that the employer encouraged such conduct or concealed its danger." Id. at 377. There is no such evidence in this case. Indeed, as we have explained, the evidence established that defendant made other equipment available which plaintiff could have used to make the cuts safely.

Plaintiff argues, however, that the facts here are analogous to those in Laidlow, where an employee was injured using a machine from which a safety guard had been removed. Laidlow, supra, 170 N.J. at 608. The Court held that the plaintiff presented sufficient evidence to raise a jury question as to whether the employer was aware of a substantial certainty of injury from use of the unguarded machine. Id. at 620-21. The Court noted that the machine was dangerous to operate. Ibid. The Court also noted that employees had experienced "close calls" and had avoided "potentially serious accidents" These incidents had been reported to the employer "to no avail." Ibid.

The Court stated that those "close calls" were persuasive evidence that the employer not only knew that injury was substantially certain but also that any such injuries would be "very serious[.]" Id. at 620. The court also stated that the fact that the employer had activated the safety guards to deceive the OSHA inspectors permitted a fact finder to infer that the employer knew that operating the machine without the guards would inevitably cause injury and the inspectors would not allow such a dangerous condition to exist. Id. at 621.

We are convinced, however, that plaintiff's reliance upon Laidlow is misplaced. In this case, there is no evidence that any employee had been injured using an unguarded saw, nor is there any evidence of any "close calls." Furthermore, the evidence established that plaintiff could have used other saws in the mill to make the plunge cuts safely.

Although there was some evidence that Sellers acted to deceive OSHA inspectors and insurance agents by placing the safety guards on the machinery for inspections, there was no evidence that any such deception occurred when defendant owned and operated the mill. In addition, there was some evidence that Sellers did not want safety guards on the machinery because it might slow down the work but that evidence also related to the time when Sellers owned the mill. Moreover, there is no evidence in this case that defendant did not install safety guards on the saws in order to expedite the work in the mill.

IV.

Plaintiff additionally argues that defendant is liable for the actions of East Coast under a theory of successor liability. Plaintiff acknowledges that, in general, a corporate successor in interest is not liable for the tortious acts of its predecessor. Plaintiff claims, however, that this case falls within an exception to that rule because defendant is alleged to be "merely a continuation" of East Coast.

We note that plaintiff did not raise this argument in the trial court. "It is a well-settled principle that our appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such presentation is available 'unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest.'" Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973); State v. Robinson, 200 N.J. 1, 20 (2009). Plaintiff's argument does not pertain to the trial court's jurisdiction, nor is it matter of public concern.

Nevertheless, we have considered plaintiff's argument and conclude that it entirely without merit. Successor liability involves "strict tort liability of a successor corporation for damages caused by defects in products manufactured and distributed by its predecessor." Ramirez v. Amsted Industries, Inc., 86 N.J. 332, 335 (1981). Therefore, when a "successor corporation acquires all or substantially all the assets of the predecessor corporation . . . and continues essentially the same manufacturing operations . . . the successor remains liable for the product liability claims of its predecessor." Ibid.

In this case, plaintiff is not asserting that East Coast is liable to him on a products liability claim and that defendant is liable on the claim because it acquired East Coast's assets. Rather, plaintiff is asserting a direct claim against defendant, which arose from a injury that plaintiff sustained while he was defendant's employee.

Whether plaintiff may assert such a claim depends upon whether defendant engaged in conduct that amounts to an "intentional wrong" under N.J.S.A. 34:15-8. That issue must be decided based on defendant's actions, not East Coast's actions.

Successor liability principles therefore have no application to this case.

Affirmed.


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