August 8, 2013
HERCULANO ARAUJO, Plaintiff,
DAMAZIO ARAUJO DASILVA, and KELMAR CONSTRUCTION CO., INC., Defendants-Respondents, and MARIA GONCALVES, Administratrix ad prosequendum and General Administratrix of the Estate of Mario Goncalves, Deceased, Plaintiff-Appellant, and ANTONIO PIMIENTA, PUBLIC SERVICE ELECTRIC & GAS COMPANY (PSE&G), MAX PLUMBING, INC., and TOWNSHIP OF IRVINGTON (A public entity of the State of New Jersey), Defendants.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 28, 2013
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-4271-09.
Gary S. Graifman argued the cause for appellant (Kantrowitz, Goldhamer & Graifman, P.C., attorneys; Mr. Graifman, on the brief).
John G. O'Brien argued the cause for respondent Damazio Araujo Dasilva (Marshall, Dennehey, Warner, Coleman & Goggin, attorneys; Mr. O'Brien, on the brief).
Robert W. Gifford argued the cause for respondent Kelmar Construction, Co., Inc. (McElroy, Deutsch, Mulvaney & Carpenter, L.L.P., attorneys; Eric G. Siegel, on the brief; Mr. Gifford, of counsel and on the brief).
Before Judges Graves, Espinosa, and Guadagno.
Plaintiff Maria Goncalves, the administratrix of the estate of her late husband, Mario Goncalves (decedent), appeals from an order of the Law Division entered on March 2, 2012, dismissing her complaint against defendant Damazio Araujo DaSilva. Plaintiff also appeals from an order entered on March 7, 2012, dismissing her complaint against defendant Kelmar Construction Company, Inc. (Kelmar). We affirm.
This action arises out of a gas explosion in a newly-completed, two-family house in Irvington (the house) on October 19, 2007, which resulted in the death of decedent. Kelmar built the house and obtained a certificate of occupancy on April 5, 2007. In October 2007, Kelmar entered into a contract to sell the house to DaSilva. On October 17, 2007, Kelmar's owner, Antonio Pimienta, signed a closing authorization letter and granted limited power of attorney to a representative in order to facilitate the closing. Closing on the sale was scheduled to take place at 1:30 p.m. on October 19, 2007.
Approximately one week prior to closing, DaSilva inspected the house with Pimienta and decedent, who was employed by Kelmar to do office work and to transport workers. Everything at the house was found to be in order.
During construction of the house, Kelmar hired Rottweiler Kingdom Security (RKS), a company owned by Andy Cook, to provide security until the house was sold. As Cook explained, RKS placed dogs in the vacant homes "to keep thieves out."
On the morning of October 19, 2007, Cook, his son, and his nephew, Curtis Boykins, arrived at the house at approximately 7 a.m. to check on the dog. Upon arrival, Cook and Boykins noticed the garage door had been forced open. While still in his van, Cook called Kelmar's office. While Cook testified he called "Mario, " Pimienta was the one who answered the phone and took Cook's call. Cook advised that someone had broken into the house. Pimienta told decedent to stop by the house. At the time, decedent was with three other Kelmar employees, Jose Joao Fernandes Pereira, Herculano Araujo, and Joel De'Oliveira. They were initially going to work on another job site but proceeded to the house instead. They arrived within a few minutes of Cook's call.
De'Oliveira observed decedent speaking with Cook, and although De'Oliveira could not understand the conversation, he explained that it was not conducted in an excited or panicked manner, and did not appear to be the type of conversation signifying danger or warning of any kind. Cook, decedent and the three other employees entered the house. At approximately 7:30 a.m., less than a minute after the men entered the home, it exploded. The building was leveled by the explosion and the five men were trapped under the burning rubble. Araujo managed to phone Pimienta to notify him that the home had exploded. Pimienta immediately called decedent but received no answer. Pimienta then called Araujo who informed him that the house was still burning and to call the fire department. Pimienta dialed 911.
When the police and firemen arrived, they were able to extract Cook, Araujo, Pereira, and De'Oliveira from the rubble; all were severely burned. Decedent was already dead and his body was recovered.
Several agencies investigated the explosion and determined that unknown burglars had stolen copper piping from the home, and in the process, had dislodged a gas line. This caused a gas leak, and then an unknown event caused the leaking gas to combust, destroying the home.
As decedent suffered a fatal accident in the course of his employment with Kelmar, plaintiff receives workers' compensation death benefits.
In her complaint, plaintiff alleges the explosion which caused decedent's death was proximately caused by the negligence and carelessness of Kelmar. Plaintiff further alleges that Kelmar knowingly dispatched decedent to the premises under circumstances where Kelmar knew or should have known that it was unsafe and dangerous for decedent to be there and there was a substantial certainty that decedent would suffer serious and/or fatal injuries as a result.
At the conclusion of discovery, Kelmar and DaSilva moved for summary judgment. Judge Ned M. Rosenberg heard argument on the motions on March 2, 2012. At the conclusion of oral argument, Judge Rosenberg granted DaSilva's motion, finding that DaSilva was not the owner of the property at the time of decedent's death as the closing did not occur until hours after the explosion. Judge Rosenberg reserved decision on Kelmar's motion and issued a written opinion on March 7, 2012, concluding, "no evidence has been presented to allow a reasonable jury to find that defendant, Kelmar Construction, acted in a manner, that would invoke the 'intentional wrong' exception to the Workers' Compensation Bar."
Appellant raises the following points:
SUMMARY JUDGMENT SHOULD HAVE BEEN DENIED AS ISSUES OF FACT EXISTED AS TO WHETHER DEFENDANT KELMAR'S CONDUCT WAS "INTENTIONAL" AND CONSTITUTES AN EXCEPTION TO THE WORKER'S COMPENSATION BAR.
A.THE STANDARD ON A SUMMARY JUDGMENT MOTION.
B.THE STANDARD UNDER THE WORKER'S
COMPENSATION ACT INCLUDES AN EXCEPTION FROM THE BAR WHICH PLAINTIFF CLEARLY SATISFIED HERE.
1.WITH RESPECT TO THE FIRST PRONG, THE "SUBSTANTIAL CERTAINTY" STANDARD IS MET BY PLAINTIFF.
2.THE COURT MADE ERRONEOUS FINDINGS OF FACT AS TO THE CONDUCT PRONG.
3.PLAINTIFF DOES NOT NEED TO SHOW TO SATISFY THE FIRST PRONG, THAT DEFENDANT HAD A SUBJECTIVE INTENT TO HARM.
4.WITH RESPECT TO THE SECOND PRONG, PLAINTIFF HAS MET HER BURDEN AND SHOULD BE ENTITLED TO PROCEED TO TRIAL.
PLAINTIFF'S CLAIMS AGAINST DASILVA BASED ON HIS NEGLIGENCE SURVIVE SUMMARY JUDGMENT AS GENUINE ISSUES OF MATERIAL FACT EXIST.
A. EVEN IF DASILVA WAS ONLY CONTRACT-VENDEE, AFTER VOLUNTARILY ASSUMING THE DUTY TO DIRECT THE SECURITY, DASILVA DID SO NEGLIGENTLY.
An appellate court, in its review of summary judgment orders, applies the same standard as the trial court. Bennett v. Lugo, 368 N.J.Super. 466, 479 (App. Div.), certif. denied, 180 N.J. 457 (2004); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J.Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). To make a determination whether a genuine issue of material fact exists requires the court to evaluate whether the competent evidence presented, "viewed in the light most favorable to the non-moving party, is sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). The court's role is to determine whether any genuine issues for trial exist, not to weigh the evidence itself and decide on the truth of the matter. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202, 212 (1986).
Plaintiff argues the dismissal of her complaint was improper as Kelmar's conduct negated its immunity pursuant to the exclusive remedy provision of the Workers' Compensation Act (WCA) and that its liability was an issue to be decided by a jury.
The exclusive remedy provision of the WCA reads in relevant part:
If an injury or death is compensable under this article, a person shall not be liable to anyone at common law or otherwise on account of such injury or death for any act or omission occurring while such person was in the same employ as the person injured or killed, except for intentional wrong.
In Millison v. E.I. Du Pont de Nemours & Co., 101 N.J. 161, 177 (1985), the Court noted that, "the mere knowledge and appreciation of a risk -- something short of substantial certainty -- is not intent." In Millison, the Supreme Court determined that the legislature, in creating the WCA and the exception therein, intended for "as many work-related disability claims as possible be processed exclusively within the [WCA]." Id. at 177. The Court found the purpose of the WCA was to "confront head-on the unpleasant, even harsh, reality . . . that industry knowingly exposes workers to the risks of injury and disease." Ibid. In defining the meaning of intentional wrong, the Court adopted the definition in the Restatement 2d of Torts, §8A, Prosser and Keeton, which states that "intent is that [the] actor desires to cause consequences of his act or is substantially certain that such consequences will result from his actions." Millison, supra, 101 N.J. at 178.
The Court also found the exception to the WCA exemption should be read very narrowly. Id. at 166, 177, 179-82. The Court's rationale for the narrow reading stems from the WCA's purpose that "as many claims as possible be processed" under the WCA. The Court determined that "if 'intentional wrong' is interpreted too broadly, this single exception would swallow up the entire 'exclusivity' provision of the Act, since virtually all employee accidents, injuries, and sicknesses are a result of the employer or a co-employee intentionally acting to do whatever it is that may or may not lead to eventual injury or disease." Id. at 177.
The Millison test to determine an intentional wrong was expanded and clarified in Laidlow v. Hariton Machinery Co., Inc., 170 N.J. 602 (2002). The Court in Laidlow created a two-prong test to determine when the employer loses its "cloak of immunity under N.J.S.A. 34:15-8." Id. at 617. The Court's test simplified the Millison holding and stated that in order for an employer to be held liable,
two conditions must be satisfied: (1) the employer must know that his actions are substantially certain to result in injury or death to the employee, and (2) the resulting injury and the circumstances of its infliction on the worker must be (a) more than a fact of life of industrial employment and (b) plainly beyond anything the Legislature intended the [WCA] to immunize.
When determining if the prongs of the Laidlow test are met, the court must utilize a totality of the circumstances approach. Van Dunk v. Reckson Assocs. Realty Grp., 210 N.J. 449, 470 (2012); Crippen v. Central Jersey Concrete Pipe Co., 176 N.J. 397, 410 (2003); Mull v. Zeta Consumer Products, 176 N.J. 385, 392 (2003); Laidlow, supra, 170 N.J. at 614, 622.
The first prong has been referred to as the "conduct" prong. Van Dunk, supra, 210 N.J. at 461. Utilizing the totality of the circumstances approach, a plaintiff seeking to bring suit against an employer for a workplace injury must still prove extreme and egregious behavior which would make the employer's acts or omissions the equivalent of deliberate and intentional conduct. Marinelli v. Mitts & Merrill, 303 N.J.Super. 61, 72 (App. Div. 1997). "Substantial certainty, " as discussed in Millison and Laidlow, is an extremely high standard.
Plaintiff argues that defendant was aware of the gas leak and decided to send decedent and his crew to the home to inspect it anyway, instead of immediately calling the police or fire department. While the standard set forth in Millison and reiterated in Laidlow is not unattainable, it is very clear that the standard is one which requires the most extreme and egregious behavior by the employer. "[T]he mere knowledge and appreciation of a risk — even the strong probability of a risk — will come up short of the 'substantial certainty' needed to find an intentional wrong." Laidlow, supra, 170 N.J. at 615 (citing Millison, supra, 101 N.J. at 179).
In Millison, two classes of employees sued their employer for either (1) knowingly exposing them to asbestos or (2) for discovering employees were suffering from asbestos exposure and concealing that information from those employees. The court found that the first class of employees, those knowingly exposed to the risk of asbestos, did not meet the substantial certainty standard. Millison, supra, 101 N.J. at 182. The second class, those found to be already affected and having those findings concealed from them in order to make them continue to work, did meet the standard. Ibid. The court found a difference in tolerating a workplace condition that will lead to injury, illness or death, and actively misleading employees who have fallen victim to such a condition. Ibid.
In Laidlow, an employee was injured by machinery at his workplace. The employer had deliberately removed a safety guard on the device in order to cut back on labor time and increase profit. The only times the guard was placed on the machine were the days that the Occupational Safety and Health Administration (OSHA) arrived for an inspection. Laidlow, supra, 170 N.J. at 621-23. The evidence showing the employer's knowledge and disregard for employee safety proved that the employer knew the "injury was substantially certain to occur." Id. at 620.
In other decisions in which the Court found the employer had committed an intentional wrong, the actions of the employer were similarly egregious. See Crippen, supra, 176 N.J. at 410 (intentionally deceiving OSHA and letting an extremely dangerous procedure continue in the workplace); see also, Mull, supra, 176 N.J. at 385 (employer disengaged a machine's critical safety devices in order to increase productivity and profit); Mabee v. Borden, 316 N.J.Super. 218, 231-32 (App. Div. 1998) (employer had repeatedly removed manufacturer's guard to increase profit and production).
If a plaintiff cannot provide evidence an employer's conduct is so unconscionable that the intent to injure is clear, than the substantial certainty standard is not met. In Marinelli, employees were injured when an explosion occurred due to the shredding of combustible hair spray cans. Marinelli, supra, 303 N.J.Super. at 66. The employer had been warned by workers and OSHA of the dangers of the pressurized cans and the dangerous nature in which the employer was disposing of them. We found the intent to injure standard was not met and determined, "at best it merely presents a work-place injury caused by either gross negligence or an abysmal lack of concern for the safety of employees." Id. at 72. "[E]ven an employer's knowledge and appreciation of a significant risk did not constitute the required intent. . . . The WCA was not meant to be circumvented simply because a known risk later blossoms into reality. We must demand a virtual certainty." Ibid.
In Van Dunk, an employee was buried in a trench while attempting to relocate a sump pump. Van Dunk supra, 210 N.J. at 454-55. The project was being rushed and the foreman admitted to being well aware of the OSHA safety regulations. Id. at 453-54. While the foreman initially told the plaintiff not to enter the trench because the required precautions were not in place, eventually the foreman directed the plaintiff to enter the trench in order to manually fix a filter that had come loose. Ibid. One of the trench walls collapsed, burying and severely injuring the plaintiff. We found the employer had acted with substantial certainty based upon his knowing violation of OSHA standards and his initial refusal to allow the plaintiff to enter the trench. However, the Supreme Court reversed, finding the facts at hand amounted to "an exceptional wrong, not an intentional wrong." Id. at 472. The Court determined that we had "overvalued the finding of a willful violation of known OSHA safety requirements, and parlayed the . . . probability of a cave-in into satisfaction of the substantial-certainty test. Ibid. The Court concluded the WCA operates to foreclose tort actions against the employer when such actions are based on recklessness or gross negligence and determined that "some level of a 'likelihood' of injury or death is not substantial certainty of injury or death. The [WCA]'s exclusivity analysis should not shift into an amorphous 'percentage of the risk' analysis." Ibid.
Although the proofs are thin that Pimienta was aware of a gas leak at the house when he dispatched decedent, we view the facts in the light most favorable to plaintiff, and for purposes of our analysis, assume that he was informed of the leak.
Sending an employee to check on a report of a gas leak at a newly constructed house, without more, cannot be seen as a deliberate intent to injure. There is no evidence that Pimienta knew of the extent of the gas leak or was aware of the potential danger it posed. At most, the elapsed time from Pimienta's first contact with Cook until the explosion was twenty minutes. After learning that someone had broken into the house and stolen copper pipes, Pimienta sent decedent, who was in the area and familiar with the property, to "stop by there to see what happened."
Significantly, every expert report, including plaintiff's, concluded the explosion occurred after thieves broke into the house and stole copper pipes. Pimienta did not knowingly ignore an ongoing threat, as there is no evidence in the record of any prior break-ins at the property. Moreover, Pimienta took steps to prevent thefts by hiring a security company. Also, defendant was not acting in such a willful and egregious manner for the sake of profitability or to intentionally mislead its employees or an inspection agency. As Judge Rosenberg concluded:
[T]here is no evidence presented to suggest that Kelmar disregarded the Plaintiff's decedent's safety in order to increase profits or productivity. Kelmar, unaware of any threat to the Plaintiff decedent's safety, had their employees who were familiar with the job site go to the property and observe whether anything was amiss. . . . Kelmar did not disregard any safety procedures or threats with regards to the instant action and did not knowingly place Plaintiff's decedent in a situation, which was likely to result in death or injury. Kelmar requested that Plaintiff's decedent appear at the premises, which had security on scene and no known or foreseeable threat ongoing.
We are satisfied that plaintiff did not establish the conduct prong of the substantial certainty test of Millison.
The key question under the second, or "context" prong, is whether "the circumstances in which [the injury] is inflicted on the worker [can] fairly be viewed as a fact of life of industrial employment, or is it rather plainly beyond anything the legislature could have contemplated as entitling the employee to recover only under the [WCA]." Laidlow, supra, 170 N.J. at 614. Here, the conduct and context analyses are related and overlap to great degree. When an employer violates a "social contract so thoroughly that [the court is] confident that the legislature would never expect it to fall with the [WCA] bar, " the second prong is possibly met. Id. At 622. However, the facts must demonstrate some "deception and blatant disregard for the plaintiff's well-being." Tomeo v. Thomas Whitesell Constr. Co., Inc., 176 N.J. 366, 374 (2003).
Plaintiff argues the legislature could not have intended to "immunize the ordering of an office worker with no training or expertise in gas or fire remediation into an explosive gas-laden setting" and the task which led to decedent's death was not in the normal scope of defendant's employment.
Judge Rosenberg concluded that defendant "reasonably believed that there was no increased threat of injury or death at the premises beyond the simple fact of industrial life." We agree.
The record does not support plaintiff's contention that Pimienta "sent [decedent], a mere office worker . . . into [an] explosive building." According to Pimienta, decedent performed multiple functions for Kelmar, including "office work and also whatever [was] needed[.] [H]e would also move employees about on the truck, drive the truck." He was the point of contact for Cook and escorted DaSilva through the house on final inspection. No stranger to construction, decedent was also engaged in home construction, and built homes as a side business. He was known by some Kelmar employees as the second in command at Kelmar and Cook viewed him as Pimienta's partner. Going to the property site, which he had overseen on numerous occasions, to check a problem, was not outside the scope of decedent's employment. The context prong is not satisfied under these facts.
We find the remainder of plaintiff's arguments lack sufficient merit to be discussed in a written opinion, Rule 2:11-3(e)(1)(E), beyond the following brief comments.
Plaintiff argues that DaSilva took control of the property and undertook the rendering of services on the property and thus created a duty between himself and decedent which was breached. Plaintiff cites no authority to support this proposition.
It is undisputed that DaSilva was not the owner of the home at the time of the incident. The deed was transferred and put into escrow pending the closing, which occurred after the explosion. DaSilva owed no duty to decedent based upon DaSilva's status as a "contract vendee, " as plaintiff suggests. At common law, a contract vendee was simply the equitable owner of title in the time between the transfer of the deed and the closing of the property.