NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 10, 2013
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-7775-10.
Joseph T. Calabria argued the cause for appellant (Garruto & Calabria, L.L.C., attorneys; Mr. Calabria, on the brief).
James Passantino argued the cause for respondent G&B LLC d/b/a The Royal Manor (Biancamano & DiStefano, P.C., attorneys; Mr. Passantino, on the brief).
Alexander J. Drago argued the cause for respondent Kida, LLC (Nowell Amoroso Klein & Bierman, P.A., attorneys; Mr. Drago, on the brief.
Before Judges Reisner and Carroll.
Plaintiff Magdalena Jarosz appeals from two orders entered on September 6, 2012, granting summary judgment in favor of defendants G&B, LLC d/b/a The Royal Manor (G&B), and Kida, LLC (Kida), which dismissed plaintiff's personal injury complaint. We affirm.
We recite the generally-undisputed facts most favorable to plaintiff because summary judgment was entered in favor of defendants. Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 374 (2010).
The Royal Manor is a catering facility located in Garfield, New Jersey. On October 5, 2008, while employed at the Royal Manor as a server/waitress, plaintiff was injured as she assisted another server in wheeling out a flaming pig on a serving cart into the banquet area during a wedding reception. Plaintiff had been directed by the manager of the Royal Manor to assist in the presentation of the flaming pig. While wheeling out the cart, the other server, who was inexperienced and lacked the proper training, intermittently poured grain alcohol onto the pig to keep it aflame. Eventually the flame erupted, causing severe burns on plaintiff's right hand, forearm and right abdomen. She was left with permanent scars on her right hand and forearm, abdomen, and right thigh as a result of this incident.
Kida is the owner/landlord of the Garfield property where G&B, as tenant, operates the Royal Manor. Kida has no employees, and its sole business is to act as owner/landlord of the property. None of the employees of G&B were employed by Kida. No written lease existed between the defendants. Defendants shared a common principal, Dariusz Kida, who maintained an office at the Royal Manor, was involved in the restaurant's day-to-day operations, and was aware that there was going to be a presentation involving a flaming pig during the wedding reception.
As a result of this work-related occurrence, plaintiff filed a workers' compensation claim, and was awarded medical and temporary disability benefits as well as permanent partial disability.
Plaintiff also commenced this Law Division action seeking redress for her personal injuries. In her complaint, plaintiff alleged that G&B acted in a manner that it knew was certain and/or substantially certain to result in harm to her. Plaintiff further alleged that the landlord, Kida, breached a duty to her and others to keep the property in a reasonably safe condition.
After discovery ended, defendants moved for summary judgment. G&B contended that plaintiff's claims were barred by the Workers' Compensation Act, N.J.S.A. 34:15-1 to -142, and that the "intentional wrong" exception to this statutory bar was inapplicable. Kida argued that it had no duty to control the business activities of its commercial tenant, G&B. Plaintiff responded that sufficient facts existed whereby a jury could reasonably conclude that the flaming pig presentation was substantially certain to cause harm, which the employer, G&B, should have known. Plaintiff further contended that defendants are related entities, and that factual issues existed with respect to the allocation of duties and responsibilities attendant to their landlord/tenant relationship. Plaintiff also cited provisions of the New Jersey Uniform Fire Code, N.J.A.C. 5:70-1 to -4.20 (NJUFC), and other administrative regulations, as establishing a responsibility on the part of both the owner and occupant of the premises to comply with fire safety regulations.
Judge Menelaos W. Toskos heard argument on the motions on September 6, 2012. In his oral decision, Judge Toskos observed that if an injury is compensable under the Workers' Compensation Act, an employer is not otherwise liable for the injury except in the event of an intentional wrong. The judge then canvassed the jurisprudence relating to the intentional wrong exception, and ultimately concluded:
And I think the same thing can be said here, that the employee who was pouring the wood grain alcohol on the pig made an unfortunate decision, probably a poor decision and probably a negligent decision, but it doesn't satisfy the substantial certainty of injury that's required under Laidlow. There's no indication that this had occurred prior or ...