On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-7834-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...