ESTATE OF SAMUEL SELLINO and PHYLLIS SELLINO, Plaintiffs-Appellants,
PINTO BROTHERS DISPOSAL, LLC; PINTO BROTHERS RECYCLING, INC.; MCNEILUS TRUCK & MANUFACTURING, INC.; YORK WASTE DISPOSAL, ATLANTIC SALES & SALVAGE, INC, Defendants-Respondents
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 10, 2013
On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-2584-09.
John J. Roberts argued the cause for appellants (Arseneault, Whipple, Fassett & Azzarello LLP, attorneys; Mr. Roberts, on the briefs).
Stephen A. Rudolph argued the cause for respondents (Rudolph & Kayal, attorneys; Mr. Rudolph, on the brief).
Before Judges Fisher, Espinosa and Koblitz.
Samuel Sellino was employed as a trash truck operator for defendant Pinto Brothers Disposal, LLC (Pinto Brothers) and died after he fell under the wheels of a truck he had been driving. His estate and widow, Phyllis Sellino, (collectively, plaintiffs), appeal from an order that granted summary judgment, dismissing the complaint against Pinto Brothers as barred by the immunity provision of the Workers' Compensation Act (the Act), N.J.S.A. 34:15-1 to -128, and from an order denying plaintiff's motion for reconsideration. We affirm.
The relevant facts, viewed most favorably to plaintiff, R. 4:46-2(c), can be summarized as follows.
On October 17, 2008, Sellino was assigned to a route in Long Beach Township with Chris Pinto, a cousin of the owners of Pinto Brothers. Sellino was driving the truck while Chris was getting on and off the truck to throw brush into the truck's garbage compactor. When stopped at one house, Sellino got out of the truck, leaving the vehicle in drive, with the parking brake engaged. The truck started rolling forward. Sellino and Chris ran after it. After the truck came to a complete stop, Chris realized that Sellino had fallen under the wheels of the truck and died. It is undisputed that if Sellino had left the truck in neutral rather than in drive, the truck would not have rolled forward. Although it is uncorroborated, it is also undisputed that the company policy of Pinto Brothers is that drivers stay inside the cab and are not to leave the cab to assist co-workers. Andrew Pinto, one of the owners, testified he explicitly told Sellino to stay in the cab because he was known for getting out.
When describing the company's protocol for using the garbage compactor, Andrew explained that the driver is supposed to put the truck in neutral and activate the parking brake. Then, an employee can activate the throttle advance switch, which automatically revs the engine to provide additional power so the garbage compactor can be used.
The Occupational Safety and Health Administration (OSHA) investigated the accident. OSHA cited Pinto Brothers for violating the safety regulation that requires maintaining injury reports and logs, but did not issue any citations for "disabling, removing, altering or modifying any safety device" on the truck.
Plaintiffs filed this action, alleging that Pinto Brothersremoved or bypassed a "neutral relay, " an electrical switch that requires the vehicle be in neutral in order for the compactor to function. There is conflicting evidence as to whether Pinto Brothers removed or bypassed the neutral relay. However, for the purposes of our analysis, which requires that all favorable inferences be drawn in favor of plaintiffs, we assume that Pinto Brothers did so.
Plaintiffs' expert in accident reconstruction, Michael Greenfield, concluded that the incident would not have happened if (1) "[t]he momentary on activation switch was not replaced with an on/off switch" and (2) "[t]he neutral safety switch in the cab was not bypassed allowing the ...