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Michael Brower and Jill Brower v. Wirtgen Group

July 26, 2012

MICHAEL BROWER AND JILL BROWER, PLAINTIFFS-APPELLANTS,
v.
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.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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


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