On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-0006-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad, Sapp-Peterson and Ostrer.
Plaintiff appeals several orders issued from the trial court: (1) an order granting summary judgment dismissing plaintiff's complaint against defendant, Cesar Productions ("Cesar"), his employer; (2) an order denying his cross-motion for summary judgment; (3) an order vacating default as to defendant Right Choice Construction ("Right Choice"), a subcontractor that subcontracted carpentry work to Cesar; and
(4) an order granting Right Choice's motion for reconsideration and dismissing plaintiff's complaint for lack of in personam jurisdiction. The motion judge concluded that plaintiff's common law intentional tort action against Cesar failed to vault the exclusivity provisions of the Workers' Compensation Act, N.J.S.A. 34:15-1 to -128 ("Act"), and that the court lacked personal jurisdiction over Right Choice, a Pennsylvania corporation whose minimum contacts with New Jersey were insufficient to invoke this state's long-arm jurisdiction. We affirm the grant of summary judgment to Cesar, but reverse the grant of summary judgment to Right Choice and remand for jurisdictional discovery.
Because the motion judge disposed of plaintiff's complaint at the summary judgment stage, we review the facts in the light most favorable to plaintiff. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). In that regard, the relevant facts reveal that in August 2007, plaintiff, who was twenty-nine at the time, was employed by Cesar as a carpenter. He had been working as a carpenter for the past eight or nine years that he had been in the United States since leaving Brazil. He had the equivalent of one year of high school education and a rudimentary understanding of the English language.
Cesar had been hired as a subcontractor by Right Choice, which in turn had been subcontracted by Barn Brothers, a Pennsylvania contractor that had secured a contract to complete a two-story residence located in Lake Ariel, Pennsylvania. Plaintiff had been working at the job site for the previous three or four days before the accident. The accident occurred as plaintiff, bending from the waist, held a pneumatic nailer to some floor planking and fired. Suddenly, he was struck in the left eye by an object ejected from the nailer. Plaintiff sustained serious injuries that resulted in the permanent loss of vision in his left eye.
At the time of the injury, plaintiff was using a Hitachi Model NV 83A2 three-quarter-inch coil nailer, a gun-type device which uses pneumatic pressure to fire or drive nails from a pre-packaged coil. The device, as packaged, is equipped with a safety shield and includes, on its exterior, a printed label warning users to wear safety goggles with side shields during use. In addition, when sold new, the device also is equipped with a set of safety glasses.
Cesar provided the nails, the compressors, and the other tools for the framing. According to plaintiff, he was never given any safety training, he was never told to wear safety goggles, Cesar never conducted site safety meetings, and there were no routine inspections conducted for safety violations. He indicated that he told Pifano, Cesar's principal who also visited the job site daily, that the device was missing its shield, and Pifano told him to go on using the device and that he would have it fixed.
Plaintiff acknowledged that prior to the accident, he had experience on other jobs and for other contractors using Hitachi nailers. During the three or four days of framing prior to the accident, he had also been using the particular nailer that injured him, and knew that it had been missing the safety shield. At his deposition, he drew a picture of a nail gun with the guard, and described his understanding of its purpose as follows:
On the top here, this area, there has to be a protection, which protects in case some nails is [sic] cut, or if there's a wire or something holding the nail, because the nail comes on a [coil] roll. And those rolls are all connected with a wire like this.
And sometimes, when you fire, these little wires fly out. And that's the reason for the protection[,] so that it doesn't hit the operator.
When asked if he had witnessed any "near misses" or other incidents with the nailer prior to this incident, plaintiff described how the nailer had sometimes cut the head off the nail it was driving, and how the shield, when in place, would deflect any pieces of wire that might "fly out, fly away," so "it doesn't hit us[.]" Following his deposition, in opposition to Cesar's motion for summary judgment, however, he provided a certification in which he elaborated on the subject, saying in part that when using the nailer previously, he had "frequently" seen the cut wire "fl[y] through the air" near his face and body.
Among the nailers plaintiff had used previously, most had guards, but some did not. As for the missing shield on the nailer that injured him, plaintiff was unsure whether the guard had been removed or had broken, though he thought it had broken because it had been missing from the time he had started using it. Notwithstanding his knowledge that the device was missing its shield, he did not take any special precautions when using that nailer, nor did he operate it differently from nailers that had a shield. To the contrary, before the accident, he had not worn eye guards while performing carpentry or framing, and had "never given it a thought[.]" He maintained that in none of his previous job-site experiences, did he ever see a worker using a coil nailer who was wearing goggles or safety glasses.
Plaintiff did acknowledge that prior to the accident, he was familiar with the box that the type of nailer he was using came in, and had seen the box graphics depicting symbols of a compressor and "a face with goggles." Nevertheless, when asked whether he understood those graphics to be a warning or direction to wear safety goggles, he responded: "No, because it has a face. There's [also] a [picture of a] compressor but there's not the words that says [sic] warning or anything like that. I don't see any warning." When questioned further whether he knew that the face and glasses symbol was "a warning or instruction . . . [to] wear safety glasses when using a Hitachi nailer[,]" he replied that he "didn't know that it was a symbol that they have." He then explained that at the time of the accident, he could "communicate a little bit" in English but had been unable to read or write English generally, and that in the period since the accident, he had improved his English skills enough to read the box warning.
In granting summary judgment, the motion judge found that the nailer was a dangerous instrument that was distributed with appropriate warnings, of which Cesar was apprised, and Pifano was aware of OSHA*fn5 regulations governing the use of nailers, including that the regulations addressed the requirement to use goggles while operating a nailer and also addressed the training of employees on its use. The judge likewise found that plaintiff had worked with nailers of the type he was using at the time he was injured and that in previously using that particular nailer, plaintiff had never ...