October 22, 2012
CARLOS MATTOS, PLAINTIFF-APPELLANT,
BARN BROTHERS, INC.; RIGHT CHOICE CONSTRUCTION; CESAR PIFANO;*FN1 HITACHI KOKI U.S.A., LTD; HITACHI POWER TOOLS; HITACHI AMERICA, LTD.; HITACHI KOKI, CO., LTD.,*FN2 DEFENDANTS,*FN3 AND RIGHT CHOICE CUSTOM HOMES, INC.*FN4 AND CESAR PRODUCTIONS, DEFENDANTS-RESPONDENTS.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 23, 2012
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 personally encountered any problems with the nail gun. The judge similarly found that Cesar had not experienced any prior "close calls" with the nailer.
Following argument, the motion judge reserved decision. Although he did not issue a separate written opinion, he noted on the order granting Cesar summary judgment that there were no genuine issues of material fact as to whether Cesar "was substantially certain that a worker would suffer injury[.]" The motion judge also said there were no material questions as to whether the "circumstances herein . . . [were] outside [the] purview of [the] Worker's Compensation bar."
In granting summary judgment to Right Choice, the judge found there was insufficient evidence to establish that the summons and complaint were properly served. In addition, he found there was no evidence that Right Choice was licensed to do business in New Jersey, that it maintained an office, bank account or other assets in New Jersey, that it had ever advertised or solicited customers in New Jersey, participated in business meetings in the state, or otherwise had sufficient contacts in New Jersey to invoke the State's long-arm jurisdiction.
On appeal, plaintiff raises the following points for our consideration:
THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO CESAR PRODUCTIONS.
AS A THRESHOLD MATTER, IT WAS PROCEDURALLY INAPPROPRIATE TO RECONSIDER THE ORDER DENYING SUMMARY JUDGMENT TO RIGHT CHOICE BASED UPON NEW ARGUMENTS AND INFORMATION IT CHOSE NOT TO ADVANCE THE FIRST TIME.
RIGHT CHOICE BEING DULY SERVED WITH PROCESS WITHIN THE GEOGRAPHICAL BOUNDARIES OF THE STATE OF NEW JERSEY, IS IN AND OF ITSELF SUFFICIENT TO ESTABLISH PERSONAL JURISDICTION.
THE RECORD IN ANY EVENT REFLECTS RIGHT CHOICE HAD MINIMUM CONTACTS WITH NEW JERSEY AND THE COURT ERRED IN ALLOWING RIGHT CHOICE TO IGNORE TWO PRIOR DISCOVERY ORDERS AND FAILING TO CONDUCT AN EVIDENTIARY HEARING.
A. CESAR PIFANO CONDUCTED RIGHT CHOICE BUSINESS OUT OF HIS HOME OFFICE IN NEW JERSEY AND OTHERWISE HAD MINIMUM CONTACTS WITH THE STATE.
B. THE COURT IN ANY EVENT ERRED IN PROHIBITING JURISDICTIONAL DISCOVERY FROM RIGHT CHOICE AND FAILING TO CONDUCT THE MANDATORY EVIDENTIARY HEARING.
THE GENERAL APPEARANCE ENTERED BY RIGHT CHOICE WAS ITSELF SUFFICIENT TO SECURE PERSONAL JURISDICTION PURSUANT TO RULE 4:4-6.
THE TRIAL COURT ABUSED ITS DISCRETION IN VACATING DEFAULT IN FAVOR OF DEFENDANT/RESPONDENT RIGHT CHOICE CUSTOM HOMES.
Because we view the facts in the light most favorable towards plaintiff, as the non-moving party, we focus upon those favorably-viewed facts to resolve the legal question, whether plaintiff's facts have vaulted the exclusivity provisions of the Act. As such, we review the judge's legal determination de novo, owing no special deference to his legal conclusion. Zabilowicz v. Kelsey, 200 N.J. 507, 512-13 (2009).
In Van Dunk v. Reckson Assocs. Realty Corp., 210 N.J. 449, 451 (2012), the Court once again tackled the "formidable standard" the Legislature has established that permits a worker to bring a common law tort action against his employer as an exception to the exclusive remedies provided under the Act for job-related injuries. In doing so, the Court reaffirmed that Millison v. E.I. Du Pont de Nemours & Co., 101 N.J. 161 (1985) remains the landmark case on defining the meaning of intentional wrong under the Act:
[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 is not an intentional wrong. [Van Dunk, supra, 210 N.J. at 460 (quoting Millison, supra, 101 N.J. at 177 (quoting Prosser and Keeton on Torts § 8 at 36 (5th ed. 1984))).]
Moreover, the Court reiterated Millison's elaboration of the substantial certainty standard, namely, "that it is not enough that 'a known risk later blossoms into reality'. . . . Rather, the standard 'demand[s] a virtual certainty.'" Id. at 461.
The Van Dunk Court then briefly revisited four cases it decided after Millison which afforded it the opportunity to further distill the factual circumstances where an employer's conduct was found to have satisfied or failed to have vaulted the substantial certainty test established in Millison. Van Dunk, supra, 210 N.J. at 461-66 (discussing, in the following order, Laidlow v. Hariton Mach. Co., 170 N.J. 602 (2002), Tomeo v. Thomas Whitesell Constr. Co., 176 N.J. 366 (2003), Mull v. Zeta Consumer Prods., 176 N.J. 385 (2003), and Crippen v. Cent. Jersey Concrete Pipe Co., 176 N.J. 397 (2003)). What the Court made clear 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. Rather, what the Court perceives as the factual predicate to vaulting the exclusivity provisions of the Act is an "employer's affirmative action to remove a safety device from a machine, prior OSHA citations, deliberate deceit regarding the condition of the workplace, machine, or . . . the employee's medical condition, knowledge of prior injury or accidents, and previous complaints from employees." Id. at 471.
Thus, the Court found that the plaintiff in Van Dunk, who sustained serious injuries when he lowered himself into a trench in an effort to straighten filter fabric necessary to complete sump relocation, failed to vault the Act's intentional wrong threshold. The trench was deeper than five feet, and OSHA regulations prohibited workers from entering a trench deeper than five feet if protective systems are not in place. The plaintiff was allowed to enter the trench, without the protective system, to straighten out the filter, which workers were unable to successfully do from outside the trench. The Court, in reversing the Appellate Division and reinstating the trial court order granting summary judgment to the employer, stated:
The events that transpired at this construction site do not equate to the more egregious circumstances involving intentional and persistent OSHA safety violations that, in the past, we found defeated an employer's motion for summary judgment on the conduct prong analysis.
What distinguishes Millison, Laidlow, Crippen, and Mull from the present matter is that those cases all involved the employer's affirmative action to remove a safety device from a machine, prior OSHA citations, deliberate deceit regarding the condition of the workplace, machine, or, in the case of Millison, the employee's medical condition, knowledge of prior injury or accidents, and previous complaints from employees. In particular, this Court was mindful in those cases of the durational aspect of the employer's intentional noncompliance with OSHA requirements or other demonstrations of a longer-term decision to forego required safety devices or practices. [Id. at 471 (internal citations omitted)]
The facts here, viewed most favorably towards plaintiff, do not meet the substantial certainty test necessary to vault the Act's exclusivity provisions. The removal of the safety guard on the nailer does not establish a per se intentional wrong under the Act. Millison, supra, 101 N.J. at 178-180. Cesar did not conceal the condition of the nailer from plaintiff or OSHA. Plaintiff was aware that the nailer did not have a safety guard and plaintiff had never worked with safety goggles at any of his other job sites where he used a nailer. He complained about the absence of the safety shield to Pifano, but there is no indication whether he complained on the first day of the job or on the day he was injured. However, even assuming he complained on the first day, the duration of the problem, at most five days, does not translate Cesar's failure to replace or repair the nailer into an intentional wrong. There was no evidence of prior accidents, and even though plaintiff, in his certification opposing summary judgment for the first time stated he had previously experienced "near misses," there is no evidence he ever reported these "near misses" to anyone.
Plaintiff's assertion that he would have been dismissed had he objected to working without the safety guard was unsupported by any evidence in the record beyond his explanation that he felt that way based upon his previous work experience with Cesar. He failed to explain, however, the nature of that previous work experience that led him to reach this conclusion. Additionally, plaintiff's expressed opinion that Pifano would not purchase a nail gun every month, because that is the average lifecycle of a shield, is also unsupported by the record. Finally, although plaintiff said Cesar expected his employees to work briskly, there is no evidence that the removal of the safety guard was done to increase productivity. Thus, the motion judge properly granted summary judgment to Cesar.
We briefly address the remaining arguments advanced related to Right Choice. Plaintiff contends the motion judge erred by failing to appreciate that the contacts Right Choice and its agents had with New Jersey were more than sufficient to justify this State's exercise of jurisdiction over it.
Right Choice is a Pennsylvania corporation. Plaintiff attempted to serve Right Choice in December 2008 by leaving the first amended complaint and other documents at Pifano's New Jersey home address, which was also the address for Cesar. The person who accepted service was Vicki Scarpone, identified on the affidavit as "managing agent." In January 2011, plaintiff served a third-party complaint and summons on Right Choice at the same address, evidently this time leaving a copy with Pifano himself.*fn6
Rule 4:4-4, which governs personal service and in personam jurisdiction, prescribes that service on a corporation is generally effected by delivering the summons and complaint to an officer, director, trustee, managing agent or anyone else authorized to receive process on its behalf. R. 4:4-4(a)(6).
In the alternative, service can be made on a person at the corporation's registered office, and if service cannot be effected in any of those ways, then [it may be made] on a person at the principal place of business of the corporation in this State in charge thereof, or if there is no place of business in this State, then on any employee of the corporation within this State acting in the discharge of his or her duties, provided, however, that a foreign corporation may be served only as herein prescribed subject to due process of law . . . . [Ibid.]
The plaintiff bears the burden of establishing that an individual, either by express agreement or as may be clearly deemed from the circumstances, is authorized to accept service of process. Local 617, Int'l Bhd. of Teamsters v. Hudson Bergen Trucking Co., 182 N.J. Super. 16, 20-21 (App. Div. 1981).
Under Rule 4:4-4(b)(1), the so-called long-arm provision, New Jersey can exercise in personam jurisdiction upon a non-resident defendant found outside the State when done so in accordance with the provisions of that rule and "consistent with due process." YA Global Invs. L.P. v. Cliff, 419 N.J. Super. 1, 8 (App. Div. 2011). "Due process requires only that the defendant have certain minimum contacts with New Jersey such that the maintenance of the suit here does not offend 'traditional notions of fair play and substantial justice.'"
Ibid. (citations omitted). The minimum contacts analysis is made on a case-by-case basis. Id. at 8-9. The plaintiff, again, bears the burden of proving a defendant's contacts are sufficient to give New Jersey long-arm jurisdiction. Reliance Nat'l Ins. Co. v. Dana Transp., Inc., 376 N.J. Super. 537, 546 (App. Div. 2005); Jacobs v. Walt Disney World, Co., 309 N.J. Super. 443, 454 (App. Div. 1998); Catalano v. Lease & Rental Mgmt. Corp., 252 N.J. Super. 545, 547 (Law Div. 1991).
Where the facts over jurisdiction are essentially undisputed, the reviewing court applies a de novo standard. Nicastro v. McIntyre Mach. Am., Ltd., 201 N.J. 48, 61 n.7 (2010), rev'd on other grounds, __ U.S. __, 131 S. Ct. 2780, 180 L. Ed. 2d 765 (2011). However, when the issue involves a "mixed question of law and fact" and "cannot be resolved on pleadings and certifications," it should be settled by a preliminary evidential hearing after discovery. Citibank v. Estate of Simpson, 290 N.J. Super. 519, 532 (App. Div. 1996).
At the time plaintiff deposed Pifano, he was represented by counsel for Cesar, who indicated that because of issues over the possible default by Right Choice, he would instruct Pifano not to answer any questions that might "prejudice or impact" Right Choice. Plaintiff's counsel agreed to "attempt to stay away from Right Choice questions as best I can to reserve those for a later date[,]" though she understood that counsel would object whenever she asked questions that "seemingly implicate Right Choice" so that they could then address those matters further.
Nonetheless, during the two depositions conducted of Pifano, he answered questions related to Right Choice. The purpose of those questions, however, was not to elicit testimony relevant to resolution of the jurisdictional issues. Plaintiff should be afforded the opportunity to conduct jurisdictional discovery, since there is some evidence that suggests Right Choice's contacts with New Jersey may be more than the fact that Pifano, as a Right Choice officer, was served in New Jersey. There was evidence that he managed some aspects of his Right Choice business out of his home office and there was an ongoing business relationship between Right Choice and Cesar, the latter company being located in New Jersey.
The remaining arguments related to the motion judge's order vacating the entry of default entered against Right Choice and reconsidering its earlier order denying summary judgment to Right Choice are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.