June 4, 2012
JUSTIN FITZPATRICK, PLAINTIFF-APPELLANT,
VREELAND BROTHERS LANDSCAPING, DEFENDANT-RESPONDENT, AND WALKER MANUFACTURING COMPANY, DEFENDANT.
On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Docket No. L-0706-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 31, 2012
Before Judges Messano and Kennedy.
Plaintiff Justin Fitzpatrick was injured while clearing leaves from the discharge chute on a riding mower he was operating in the course of his employment for defendant Vreeland Brothers Landscaping (Vreeland). He filed suit against the manufacturer of the riding mower, Walker Manufacturing Company (Walker), on theories of negligence and strict liability, and Vreeland, alleging it had "knowingly permitt[ed], direct[ed] and/or compell[ed] the plaintiff to utilize equipment with a disabled safety mechanism . . . [.]" Plaintiff appeals from an order entered by the trial court on May 13, 2011, following the conclusion of discovery, granting summary judgment in favor of Vreeland.*fn1
For reasons set forth hereinafter, we are satisfied that the motion judge correctly determined that Vreeland was entitled to summary judgment dismissing plaintiff's complaint. Accordingly, we affirm.
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). 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 viewed in a light most favorable to plaintiff. In 2006, the twenty-four-year-old plaintiff worked as a foreman for Vreeland, an entity that provided landscaping and lawn maintenance services for residential, commercial and industrial premises. He had worked for Vreeland previously as a laborer doing "lawn maintenance", but returned to Vreeland in 2006 at the behest of its principals.
Plaintiff had been trained in the operation of the four Walker riding mowers owned by Vreeland and had also been trained to clear debris that accumulated in the discharge chute that funneled grass clippings from the cutting blades beneath the mower into a "grass catcher" mounted behind the operator seat. The funneling action is facilitated by a small fan blade - a "blower impeller" - located within the discharge chute approximately twelve inches below the opening into the grass catcher.
The Walker mower is equipped with a clutch lever on the right side of the machine. When the clutch lever is pulled, a mechanical linkage is engaged which transmits motor power to the wheels and cutting blades. It also releases an internal "band brake" which allows the blower impeller to turn. When the clutch lever is disengaged, the engine remains on, but the mechanical linkages to the mower's wheels and cutting blades are disconnected. Also, when the clutch is disengaged, the band brake is automatically applied to the blower impeller, causing it to stop rotating within 5 seconds, if the band brake is "properly adjusted."
Further, the mower is equipped with a safety interlocking device which automatically shuts off the engine if the operator were to get off the seat while the machine is running and the clutch is engaged. This device does not shut off the mower engine if the clutch is disengaged, however.
On November 26, 2006, plaintiff was assigned by Vreeland to undertake maintenance work with a crew at a commercial property. He was using a Walker mower to collect leaves when he noticed the grass catcher was full. Plaintiff stated that when the catcher was full, his procedure was to "disconnect the blades which is a lever on your right, which you push down. And you put the brake up, which is on your left. And you get off the mower." Then, he would open a "clam shell" to gain access to the discharge chute which he would clear of debris by hand, following which he would dump whatever had been accumulated in the grass catcher.
At his deposition, plaintiff testified in pertinent part,
Q. And the procedure you followed would be to disengage the clutch, apply the brake, get out of your seat, open up the clam shell, and then clear the clog?
A. Yes, sir.
Q. Had you ever gotten out of the seat without completely disengaging the clutch or applying the brake and the engine continued to run?
A. No, sir.
Plaintiff explained that on the date of the accident, he noticed the catcher was full and "[d]id [his] normal procedure. Shut down the blades. Put the brake on. And opened the [chute] . . . to unclog it . . . . And as [he] was unclogging it, [he] felt something smack [his] hand or grab [his] hand." At the conclusion of his deposition, plaintiff reconfirmed that he had disengaged the clutch and applied the handbrake before getting off the mower to clear the chute.
Plaintiff filed his complaint against Vreeland and Walker in 2008, less than a month before the statute of limitations expired, and thereafter hired Thomas Cocchiola, P.E., to examine one of Vreeland's Walker mowers. Cocchiola examined the mower on June 18, 2010, and found some insulation missing from two wires that served the safety interlocking device that shut down the engine if the operator were to get off the mower's seat without disengaging the clutch.
Cocchiola concluded that "someone stripped [the] insulation" and that this "allowed the installation of a jumper wire to bypass the seat safety interlocking switch." Disabling the seat safety, in turn, "causes the band brake to be applied while the engine is driving the blower if an operator gets off the seat" with the clutch engaged. This would cause "excessive band brake wear and tear" and thereby permit the blower impeller "to coast for an excessive amount of time."
The motion judge granted summary judgment dismissing plaintiff's complaint and explained:
The facts show (and are not disputed) that the [p]laintiff disengaged the PTO clutch prior to dismounting the mower. The seat safety switch was not implicated. Whether the seat safety switch was operational (or not) had no bearing on [p]laintiff's injury.
He also noted that Cocchiola had not inspected the band brake to determine whether it, in fact, showed signs of "excessive wear." Further, the motion judge also found Cocchiola's conclusion that the bypassed seat safety caused excessive wear and tear on the band brake "vague" in that the mower would continue to operate as if an operator were still on the seat with the clutch engaged - essentially a normal operating mode.
This appeal followed.
Plaintiff contends that summary judgment was improperly granted because the evidence showed that Vreeland had intentionally by-passed a safety device causing excessive wear on the band brake, allowing the impeller blade to continue to turn for more than the five seconds it should have turned if the brake were "properly adjusted." Further, plaintiff asserts that "a jury could conclude . . . plaintiff thought he did but had forgotten to disengage the clutch because the blade was still running when the accident happened . . . [.]"
We begin with a statement of some basic principles that guide our analysis. The Workers' Compensation Act (the Act), N.J.S.A. 34:15-1 to -142, provides the exclusive avenue by which an injured worker may recover compensation from his or her employer for work-related injuries, except for claims based on an "intentional wrong." N.J.S.A. 34:15-8. "[A]n employer who causes the death or injury of an employee by committing an 'intentional wrong' will not be insulated from common-law suit." Laidlow v. Hariton Machinery Co., Inc., 170 N.J. 602, 606 (2002) (citing Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 161, 169 (1985)). Because the 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).]
Millison explicitly addressed "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 asserted claims against their employer for knowingly and deliberately exposing them to a hazardous work environment and concealing from them the existence of occupational diseases arising from such exposure. The Court articulated a standard by which to measure whether an employer's conduct rose to the level of an "intentional wrong" under the Act. Id. at 177-80. The Court adverted to 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. [Id. at 177 (quoting W. Prosser & W. Keeton, The Law of Torts, § 8 at 36 (5th Ed. 1984)).]
The Court also observed 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 in Millison equated "substantial certainty" with virtual certainty, and trial courts therefore must 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 this holding in Laidlow, where it also observed that proving both the conduct and context prongs may involve consideration of the same facts and circumstances. Laidlow, supra, 170 N.J. at 623. The principle that emerged from Laidlow and subsequent 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 622-23 (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 single factor 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 v. Zeta Consumer Prods., 176 N.J. 385, 392 (2003). If the answer to this question is affirmative, the court next must address the context prong to ascertain whether plaintiff's allegations constitute 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.
With these principles in mind, there is simply nothing in the record to suggest that Vreeland's alleged disabling of the seat interlocking mechanism evidenced a deliberate intention to injure plaintiff or a virtual certainty that such injury would occur. As the motion judge noted, the record is silent as to whether the band brake on the Walker mower at issue was, in fact, excessively worn at the time of the accident or how excessive wear and tear is even defined. The record is devoid of evidence that Vreeland engaged in conduct creating a "virtual certainty" of injury to plaintiff. Tomeo v. Thomas Whitesell Constr. Co., Inc., 176 N.J. 366, 371 (2003) ("simply being aware of the risk of harm does not equate to having knowledge of a substantial certainty of harm.").
Further, the report of plaintiff's expert is premised upon the speculation that a "jumper wire" had been in place on November 26, 2006, and that Vreeland put it there. We note that plaintiff himself, in his deposition, stated he was aware of the seat safety mechanism and never saw Vreeland "do anything with those switches under the seats." However, given our conclusions noted above, we need not address whether this infirmity fatally undermines the opinion of plaintiff's expert.
Finally, plaintiff's suggestion that a jury could determine that he erred when he testified that he disengaged the clutch before opening the discharge chute is without merit. Plaintiff testified unequivocally that he disengaged the clutch before alighting from the mower to clear the chute. To assert that a jury "could conclude" otherwise is to invite the court to engage in speculation and metaphysical doubt. We do not undertake such an exercise, however, when considering a motion for summary judgment. See Merchs. Express Money Order Co. v. Sun National Bank, 374 N.J. Super. 556, 563 (App. Div.), certif. granted, 183 N.J. 592 (2005), appeal dismissed, Jan. 3, 2006; Triffin v. American Intern. Grp., Inc., 372 N.J. Super. 517, 523-24 (App. Div. 2004).