July 26, 2012
MICHAEL BROWER AND JILL BROWER, PLAINTIFFS-APPELLANTS,
WIRTGEN GROUP, L.B. SMITH, AND STAVOLA CONTRACTING COMPANY, INC., DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-2222-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 27, 2012
Before Judges Sabatino, Ashrafi, and Fasciale.
Plaintiff Michael Brower,*fn1 who was injured in a 2005 workplace accident, appeals the trial court's September 23, 2010 summary judgment order dismissing his claims against his employer, defendant Stavola Contracting Company, Inc. ("Stavola"). The trial court rejected plaintiff's argument that Stavola's actions and inactions that allegedly played a role in causing the accident were tantamount to an intentional tort, and thereby overcame the exclusive remedy provision, N.J.S.A. 34:15-8, set forth within the Workers' Compensation Act, N.J.S.A. 34:15-1 to -128.
Based upon the applicable case law narrowly construing the intentional tort exception to N.J.S.A. 34:15-8, as most recently reaffirmed in the Supreme Court's unanimous opinion in Van Dunk v. Reckson Associates Realty Corp., ___ N.J. ___ (2012), we affirm the grant of summary judgment to Stavola. We remand for additional proceedings against the remaining defendants, which are not covered by the workers' compensation bar.
The record contains the following relevant facts, which we view in a light most favorable to plaintiff. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
On April 20, 2005, plaintiff and two co-workers, Donald Tomaio and James Beslanovitz, were working for Stavola on a construction site in Point Pleasant Beach. The three men were involved in milling asphalt on a public street.
Beslanovitz was operating the asphalt milling machine, a model W2200, manufactured by co-defendant Wirtgen Group ("Wirtgen"). Stavola had purchased the machine from co-defendant L.B. Smith ("Smith"). The machine strips and grinds up the asphalt from the road surface, carrying the ground material with a conveyor belt that deposits it into a dump truck. The machine can only perform its milling function when it is moving forward. In addition to being able to move back and forth in a straight direction, the machine also can "crab," which refers to a diagonal movement either forward or backward. The machine has a back-up alarm that sounds when it is reversing, but it does not distinguish whether the machine is moving straight back or diagonally in crab mode.
The accident occurred when Beslanovitz was backing up the machine. The operation involved making a short series of multiple passes over the asphalt to expose the concrete underneath. Tomaio, the foreman on the job, had been behind the machine, painting lines on the ground to indicate where the asphalt met the exposed concrete so that Beslanovitz could see where to position the machine for each milling pass. Plaintiff was working with the crew as a "ground man."
Beslanovitz stopped the machine because there was a loader in the way behind them. At that point, Tomaio tossed his paint can to plaintiff. Plaintiff interpreted that as a direction to continue to paint, which he did. Plaintiff then saw Beslanovitz gesture to him that he was about to put the machine in reverse. Plaintiff assumed that the machine would be moving straight back and away from the area that he was painting. Instead, Beslanovitz put the machine in crab mode, moving backward in a diagonal direction toward plaintiff, whom he did not see. Plaintiff, whose back was to the machine and who was looking down at the lines he was painting, likewise did not see the machine coming toward him.
The machine ran over plaintiff's left foot. After the impact, Beslanovitz jumped off the machine and hit the kill switch. Plaintiff was taken away in an ambulance. The local police and representatives of the Occupational Safety and Health Administration ("OSHA") also responded to the accident scene.
OSHA did not issue any citations to Stavola for safety violations.
As a result of the accident and ensuing medical complications, plaintiff's left leg was eventually amputated six inches above his knee. He now uses a prosthetic device.
Plaintiff then brought this civil action in the Law Division, seeking compensatory damages from Stavola, which he alleges was responsible for the dangerous situation that led to his accident. In particular, plaintiff contends that his employer should not have allowed the milling operation to continue without another employee serving as a spotter while he painted the lines on the surface. Additionally, he alleges that Stavola should not have allowed the machine to be operated without working side mirrors. Plaintiff also has sought damages from Wirtgen and Smith, against whom he asserts products liability claims.
Following discovery, Stavola moved for summary judgment, arguing that plaintiff's sole remedy against it is through the workers' compensation system. Plaintiff opposed the motion, contending that the circumstances rise to an egregious level surmounting the workers' compensation bar.
The motion judge rejected plaintiff's arguments, concluding that this accident, at worst, involved no more than ordinary negligence on the employer's part and did not surmount the workers' compensation bar. Summary judgment was therefore granted in Stavola's favor. We granted plaintiff leave to appeal that ruling.
The workers' compensation system was created to provide injured workers with medical coverage and certain financial benefits as "swift recompense" where their injuries arose out of a workplace accident, regardless of whether the employer was shown to be at fault. Brunell v. Wildwood Crest Police Dep't, 176 N.J. 225, 235-36 (2003). In exchange for that assured recovery, the employee forfeits the right to sue his or her employer in a civil action, unless the employer's actions or inactions amount to an intentional wrong. N.J.S.A. 34:15-8.
In Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 161, 176-79 (1985), the Supreme Court instructed courts to conduct a two-pronged analysis when assessing whether an employer committed an intentional wrong. Van Dunk, supra, slip op. at 16. Courts must examine both the conduct of the employer and the context in which that conduct took place. Millison, supra, 101 N.J. at 179. The conduct prong is satisfied where the employer "know[s] that his [or her] actions are substantially certain to result in injury or death to the employee[.]" Laidlow v. Hariton Machinery Co., 170 N.J. 602, 617 (2002).
Under the context prong, courts must analyze whether the injury and the surrounding circumstances were "a fact of life of industrial employment," or "plainly beyond anything the [L]egislature could have contemplated as entitling the employee to recover only under the Compensation Act[.]" Millison, supra, 101 N.J. at 179.
Following Millison, the Court has applied this two-pronged test to various factual circumstances. In Laidlow, supra, 170 N.J. at 606-08, 622, the Court held that both prongs were satisfied where an employer had installed safety equipment prior to OSHA inspections, and promptly removed the safety equipment once the inspectors left. Similarly, in Mull v. Zeta Consumer Products, 176 N.J. 385, 387-88 (2003), the Court held that an employer's wrongful conduct in removing safety devices from a machine, despite prior injuries and complaints by other employees and despite receiving prior OSHA safety citations, met the two-part exception for an intentional wrong. Likewise, in Crippen v. Central Jersey Concrete Pipe Co., 176 N.J. 397, 409-11 (2003), the Court allowed a worker's estate to seek common law damages from an employer arising out of a fatal workplace accident in which the worker had suffocated. In that case, OSHA had cited the employer for several violations which had not been cured, and the employer's safety manager had admitted that some of the conditions at the plant were dangerous and could cause an employee's death. Ibid.
By contrast, in Tomeo v. Thomas Whitesell Construction Co., 176 N.J. 366, 375-78 (2003), the Court upheld summary judgment for the employer where the employee had been injured while using a snow blower bearing warning labels provided by the manufacturer. The plaintiff asserted that the defendant employer allegedly had disabled a safety device on the snow blower. Id. at 369. However, the Court found that, given the manufacturer's posted warnings, the plaintiff's intervening act of reaching his hand into the shoot as the propellers were rotating, and the fact that the plaintiff did not provide evidence that the defendant was aware of a substantial certainty of injury, he could not establish either prong of the test. Id. at 375-78; Van Dunk, supra, slip op. at 20-21.
Most recently, in Van Dunk,*fn2 supra, slip op. at 2-3, the Court reinstated summary judgment for an employer and enforced the Act's exclusivity bar, even in a situation where the workplace accident produced a citation by OSHA for a "willful violation" of OSHA safety rules.
Van Dunk, a construction worker, had been injured when a trench collapsed upon him at the employer's job site. Id. at 6. That trench had been excavated to a depth of almost twenty feet. Id. at 7. OSHA safety regulations require the placement of protective systems before a worker may enter a trench deeper than five feet. Id. at 5. Similarly, the company's safety program required the use of protective systems. Ibid.
The workers were trying to finish the project in anticipation of rain. Ibid. After encountering difficulty installing certain filter fabric, Van Dunk volunteered to go down into the trench to complete the work. Id. at 6. The employer's project superintendent on site initially told Van Dunk not to enter the trench because of the risks involved. Ibid. However, the workers continued to experience trouble. The superintendent, in a "moment of 'frustration,'" then directed Van Dunk to go into the trench and straighten the fabric. Ibid. After Van Dunk had been in the trench for fewer than five minutes, a wall caved in, burying and severely injuring him. Ibid. OSHA investigated the scene that day and issued a report, citing the employer with a "willful violation" of safety requirements. Id. at 7.
Van Dunk sued the employer for damages under the common law, bypassing the Act. Id. at 8. The trial judge granted the employer's motion for summary judgment pursuant to N.J.S.A. 34:15-8. The judge found that, in the totality of the circumstances, the employer's conduct was not an intentional wrong, notwithstanding the OSHA violation, and that the incident was "just a function of industrial life[.]" Id. at 8-9. A panel of this court reversed that ruling, concluding that the judge had not given sufficient "credit to the OSHA citation or the fact that [the] defendant could have made the trench more stable if it had used protective devices." Van Dunk v. Reckson Assocs. Realty Corp., 415 N.J. Super. 490, 504 (App. Div. 2010).
In reversing our decision and reinstating summary judgment in Van Dunk, the Supreme Court held that "the finding of a willful violation under OSHA is not dispositive of the issue of whether the employer in this case committed an intentional wrong." Van Dunk, supra, ___ N.J. ___ (slip op. at 29-30). The Court "decline[d] to find that every willful OSHA violation constitutes an intentional wrong for purposes of the Act." Id. at 30.
With respect to the "conduct" prong of the exception, the Court explained in Van Dunk that "[a] probability, or knowledge that  injury or death 'could' result, is insufficient." Id. at 31. Instead, the "intentional wrong must amount to a virtual certainty that bodily injury or death will result." Ibid.
(emphasis added). Furthermore, the Court observed that the "high threshold" of the context prong was not met by "the type of mistaken judgment by the employer and [the] ensuing employee accident that [had] occurred on [the] construction site[.]" Id. at 35-36. While an employer's single egregiously wrong act "might, in the proper circumstances, satisfy the intentional-wrong standard, not every intentional, or indeed willful violation of OSHA safety requirements constitutes a wrong that is 'plainly beyond anything the [L]egislature could have contemplated as entitling the employee to recover only under'" the workers' compensation system. Id. at 36 (quoting Millison, supra, 101 N.J. at 179).
The motion judge correctly applied these principles here. This case is even less compelling than Van Dunk, because OSHA's investigation did not result in a finding of a willful violation. In addition, even if, for the sake of argument, Stavola should have maintained the side mirrors on the milling machine and required an additional crew member to be present as a spotter when the machine was in reverse "crabbing" mode, those shortcomings do not entail the required "substantial certainty" that death or serious injury would occur. Even when the mirrors are kept on the machine, the driver still has blind spots to his rear, given the nature of the device. There is no indication that Stavola deliberately refused to replace the side mirrors or refused to require a spotter in order to reap higher profits. Instead, this unfortunate accident was produced by factors that, at worst, bespeak ordinary negligence. Neither the conduct prong nor the context prong have been met.
We also reject plaintiff's argument that the present case must reach a different outcome than Van Dunk because of the alleged "duration" of the employer's conduct. Although the injury in this case did not stem from an on-the-spot decision by an employer's supervisor, the circumstances nevertheless do not involve the kind of extreme and deliberate wrongdoing by the employer that was present in Laidlow, Crippen, and Mull. As we noted, an employer's vigilant replacement of the side mirrors would not necessarily have prevented the accident. Moreover, there were two workers behind the machine operator, who conceivably could have spotted for each other, until the moment that Tomaio briefly stepped aside to attend to the loader that was in the way. We do not regard that momentary event to be of sufficient duration to support plaintiff's contentions of deliberate indifference to his safety.
We consequently affirm the order granting Stavola summary judgment, and remand the case for additional proceedings against the non-employer defendants. Jurisdiction shall revert to the Law Division.