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James Mackenzie and Kathleen Mackenzie v. Macy's Inc


April 5, 2012


On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-7834-08.

Per curiam.


Argued November 15, 2011 Before Judges Payne and Hayden.

Plaintiffs, James MacKenzie and his wife, Kathleen MacKenzie, appeal an order of summary judgment entered against them and in favor of defendant, Macy's, Inc., following a determination that their product liability action was barred by N.J.S.A. 34:15-8, the exclusive remedy provision of the Workers' Compensation Act, N.J.S.A. 34:15-1 to -142, and that the "intentional wrong" exception to that statutory exclusivity was inapplicable in the present matter. Following our review of the record in light of applicable legal standards, we affirm.


The record discloses that, in 2007, James MacKenzie was employed by Macy's as a roving engineer. On November 8, 2007, he was assigned to report to Macy's Essex Green store to assist an outside contractor, Energy Conservation and Supply, Inc., in the installation and adjustment of HVAC equipment. The work was being supervised by Macy's employee Domenic Ruggeri. Additionally, Energy Conservation employee Rick Rian was working on the job.

During the course of the work, it became apparent that an adjustment of the actuators that controlled air flow was required. The actuators in question were part of air handling units that occupied approximately half of a twenty- by twenty-five-foot air handling room. The room itself was windowless and lit only by a drop light on an extension cord and the flashlights carried by plaintiff, Ruggeri and Rian.

To perform the necessary adjustment, a ladder was required. As plaintiff was leaving the room to get one, Rian noticed a ladder, left by someone in the air handling room, which he set up under the actuators. The ladder in question was seven feet in height and A-frame in shape. Ruggeri was the first to climb the ladder, which he did without incident. Thereafter, plaintiff climbed the ladder and commenced work, while Rian provided him with the necessary tools, at times climbing on a plastic bucket and at times climbing on the back of the ladder to reach plaintiff. However, either while Rian was on the ladder or shortly after he had gotten off its rear supports, one of the rear legs of the ladder collapsed, and plaintiff fell to the ground, severely injuring his shoulder and lacerating his head.

On the following day, Norman Decker, another of Macy's roving engineers, was instructed either by plaintiff's foreman, Norman's brother Fred Decker, or by another employee "to go to Store 94, which is Essex Green, and throw away a ladder that had broken before someone else is injured on it." He did so, but prior to disposing of the ladder, he took pictures of it with his cell phone. Those pictures, which form part of the record, disclose that the two rear legs of the ladder had each been taped in two places with what appears to be packaging tape. Close-up photographs of the leg that had given way disclose a vertical split in the wood or fiberglass comprising the leg that extends at least to the level of the second rung on the back of the ladder. The ladder, manufactured by Werner Company, exhibits a Macy's logo. A label on the ladder states that it had a 300-pound load capacity.*fn1

In deposition testimony given by plaintiff and Rian, each stated that he had not noticed the tape on the ladder prior to its use. However, Ruggeri testified otherwise, stating that he had noticed tape on the ladder before plaintiff's accident, but that he had not mentioned it to plaintiff and had not suggested that he use a different ladder. When asked whether he was "concerned in any way about the ladder" before plaintiff climbed it, Ruggeri replied: "No. I was up it myself."

Ruggeri testified further that he had observed Rian on the support rungs on the back of the ladder handing tools to plaintiff before the accident, and that he had not told Rian not to stand there. When asked whether he had been instructed that it was a bad idea for two people to simultaneously use a ladder, Ruggeri testified: "I'd have to say it's not the optimal thing to do, but I have done it myself in the past working with my partners. We work together like that all the time. Either I was on the back side or he was on the back side, and we just assisted each other on the ladder." However, Ruggeri acknowledged that "[a]ccording to the training, it's unsafe to work that way." Ruggeri testified that, prior to the accident, he did not observe the ladder's stability to change when Rian got off of it, and he neither saw or heard anything that would give him the idea that "something bad" was going to happen to plaintiff.

Plaintiff's engineering expert, Neal A. Growney, opined in a report issued in the matter that the likely physical cause of the ladder's failure was Rian's weight and/or movement in addition to the pre-existing defect in the ladder. Growney found the lighting in the air handling room to have been inadequate under accepted standards, impairing the workers' ability to recognize that the ladder was defective. Additionally, Growney found Ruggeri's failure to inform plaintiff of the presence of tape on the ladder to have been a cause of plaintiff's injuries.

At the conclusion of discovery, Macy's moved for summary judgment, and as previously stated, its motion was granted.

Thereafter, a settlement was reached with the remaining parties, and the matter was dismissed. This appeal followed.


After employing the same standard that was applicable in the trial court, we are satisfied that summary judgment was properly entered in this case. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).

N.J.S.A. 34:15-8 provides, in relevant part, If an injury or death is compensable under this [workers' compensation] article, 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 an intentional wrong.

The "intentional wrong" exception to the exclusivity of relief provided by workers' compensation was first construed by the New Jersey Supreme Court in Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 161 (1985). In that decision, the Court held that plaintiffs' claim that, to prevent employees from leaving the workforce, du Pont fraudulently concealed from them the fact that they were suffering from asbestos-related diseases, thereby delaying treatment and aggravating their existing illnesses, constituted such an intentional wrong, excepting that cause of action from the workers' compensation bar against civil litigation. Id. at 181. In defining the parameters of the exception, the Court recognized that:

[T]he statutory scheme contemplates that as many work-related disability claims as possible be processed exclusively within the Act. Moreover, if "intentional wrong" is interpreted too broadly, this single exception would swallow up the entire "exclusivity" provision of the Act, since virtually all employee accidents, injuries, and sicknesses are the result of the employer or a co-employee intentionally acting to do whatever it is that may or may not lead to eventual injury or disease. [Id. at 177.]

In determining the level of risk that the employer must contemplate as resulting from its conduct so as to constitute an "intentional wrong," the Court adopted "substantial certainty" as the required standard, utilizing the analysis of Dean Prosser, who discussed intent in the following terms: the 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 and W. Keeton, The Law of Torts, § 8 at 36 (5th ed. 1984)).]

However, the Court observed that "the dividing line between negligent or reckless conduct on the one hand and intentional wrong on the other must be drawn with caution, so that the statutory framework of the Act is not circumvented simply because a known risk later blossoms into reality. We must demand a virtual certainty." Id. at 178.

The Court further held that, in determining the existence of an intentional wrong, courts must examine "not only the conduct of the employer, but also the context in which that conduct takes place: may the resulting injury or disease, and the circumstances in which it is inflicted on the worker, fairly be viewed as a fact of life of industrial employment, or is it rather plainly beyond anything the legislature could have contemplated as entitling the employee to recover only under the Compensation Act?" Id. at 179. Employing this component of the analysis, the Court held that portion of plaintiffs' complaints seeking civil damages for work-related occupational diseases was insufficient to overcome the workers' compensation bar, because the occurrence of those diseases constituted a fact of industrial employment. Id. at 179.

Millison's precepts were further discussed by the Court in a summary judgment context in Laidlow v. Hariton Machinery Co., Inc., 170 N.J. 602 (2002). There, the Court observed:

In general, the same facts and circumstances will be relevant to both prongs of Millison. However, as a practical matter, when an employee sues an employer for an intentional tort and the employer moves for summary judgment based on the Workers' Compensation bar, the trial court must make two separate 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 prong 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 Laidlow, the Court held that fact issues existed as to whether the employer acted with knowledge that it was substantially certain that a worker would suffer an injury when the employer tied up a safety guard on a rolling mill, releasing it only when the Occupational Safety and Health Administration (OSHA) inspectors were present and, although no injuries had occurred in the twelve preceding years, there had been several close calls that had been reported to the employer. Id. at 620-22. The Court further held that, if an employee were injured when an employer deliberately removed a safety device from a dangerous machine and systematically deceived OSHA as to its safety compliance, such evidence would never be considered by the Legislature to constitute the simple facts of industrial life. Id. at 622. The matter was therefore remanded for further discovery and trial. Id. at 624. See also Mabee v. Borden, Inc., 316 N.J. Super. 218 (App. Div. 1998).

The Court reached a similar conclusion in Mull v. Zeta Consumer Products, 176 N.J. 385 (2003), a case in which evidence suggested that the plastic bag winder upon which plaintiff was working when injured suddenly started up as the result of the removal of safety interlock switches that were to operate when the machine's safety cover was raised and as the result of machine modifications to increase productivity that automatically commenced the operation of the winder when an associated machine known as a "bagger" was activated. Before plaintiff's injury, another worker had been injured on the machine, albeit in a somewhat different fashion. Id. at 388-90, 392-93.

That same day, the Court decided Crippen v. Central Jersey Concrete Pipe Co., 176 N.J. 397 (2003). There, the Court held that an employer's conduct in failing to cure hazardous conditions in violation of a directive issued by OSHA, coupled with its intentional deception of that entity, if proven at trial, satisfied the "intentional wrong" exception to the Workers' Compensation bar. In that case, decedent, a "material man," controlled the movement of sand and gravel into seventeen-foot-deep loading hoppers by activating a lever that required him "to walk on a single two-inch by ten-inch wooden plank and stand on a six-foot high, unsecured ladder that rested on the wooden plank." Id. at 399-400. On the day of his death, decedent fell into the hopper and suffocated. Id. at 400. Prior to decedent's death, the company had been cited and penalized for "serious" safety violations in connection with decedent's work space that the employer failed to abate, despite the admission by the company's Environmental Health and Safety Manager that "he knew an employee could die in one of the confined spaces if the violations were not abated." Id. at 401-04. This evidence, the Court found, was sufficient to meet both Millison's conduct and context prongs. Id. at 409-10.*fn2

Our review of cases in which the Supreme Court has found a jury issue to exist as to whether the employer engaged in an "intentional wrong" leads us to conclude that those decisions are distinguishable from the present matter, and that the conduct at issue here constituted negligence or, at most, recklessness as to which the statutory bar applies.

First of all, there was no evidence presented in this case that Macy's regularly supplied its employees with faulty equipment, or that the presence of this particular ladder at the worksite was anything more than a fluke. Further, although the presence of tape on the ladder suggested that some repair had been attempted, prior to the accident there was no evidence that would lead anyone present to believe that the repair had been unsuccessful or that the damage was particularly serious. In fact, Ruggeri had climbed the ladder once without incident, and plaintiff had been working on it for some period of time before the accident took place. Thus, before the accident, the ladder appeared to be safe. It was steady, it did not move or sag when climbed, and it did not creak or otherwise manifest signs of damage.

While Rian should not have climbed up the back of the ladder to hand tools to plaintiff, in the circumstances presented, it is difficult to cast his conduct as other than negligent. Similarly, while Ruggeri acknowledged that his training suggested the practice of climbing the back of a ladder was unsafe, and it is reasonable to claim that he should have instructed Rian to pass tools to plaintiff in a different fashion, there is no evidence that Ruggeri had previously witnessed either an accident or injury occurring because someone climbed a ladder's back rungs. Moreover, doing what Rian did was expedient; his actions were not motivated by an unwholesome profit motive or a desire to speed the work while sacrificing safety. Nor was there any evidence that Ruggeri's conduct was impelled by such motives. As a final matter, while Macy's may have committed OSHA violations as the result of inadequate illumination in the air handling room or as the result of the circumstances of plaintiff's accident, there is no "per se rule that an intentional wrong has been committed whenever an employer violates an OSHA regulation." Crippen, supra, 176 N.J. at 408 (citing Laidlow, supra, 170 N.J. at 622-23).

In summary, the evidence, when viewed in plaintiff's favor, is simply insufficient to support the claim that Macy's knew that its actions were substantially certain to result in injury to plaintiff or anyone else. Because our analysis of the evidence relevant to the conduct prong leads us to conclude that plaintiff has failed to meet his burden at this stage of the litigation of proffering prima facie proof of an intentional wrong, we need not address the context prong. See Laidlow, supra, 170 N.J. at 623.


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