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Bernard Menkevich v. Delta Tools

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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" ...


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