Opinion
DOCKET NO. A-2333-11T1
04-09-2013
MICHAEL J. FENDT, Plaintiff-Appellant, v. ADAM L. ABRAHAMS, JULIUS D. ABRAHAMS, JV PAVING, and JEFFREY R. VALVANO, Defendants-Respondents.
Lora B. Glick argued the cause for appellant. Michael J. Palma argued the cause for respondents (Baumann & Viscomi, attorneys; Mr. Palma, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Ashrafi and Hayden.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-476-10.
Lora B. Glick argued the cause for appellant.
Michael J. Palma argued the cause for respondents (Baumann & Viscomi, attorneys; Mr. Palma, on the brief). PER CURIAM
Plaintiff Michael J. Fendt appeals from the Law Division order granting summary judgment to defendants Jeffrey Valvano and JV Paving and the order denying his motion to reconsider. Plaintiff claimed that these defendants' complete lack of safety precautions at the work site created a virtual certainty that injury or death would result, thereby overcoming the exclusive remedy provision, N.J.S.A. 34:15-8, in the Workers' Compensation Act (the Act). N.J.S.A. 34:15-1 to -128. Because the applicable law narrowly construes the intentional tort exception, as most recently affirmed in Van Dunk v. Reckson Associates Realty Corp., 210 N.J. 449 (2012), we reject plaintiff's argument and affirm.
Viewed most favorably to plaintiff, see Rule 4:46-2(c), Brill v. Guardian Life Insurance Co. of America, 142 N.J. 520, 540 (1995), the summary judgment motion record discloses the following facts. On May 19, 2008, plaintiff was employed by Valvano, who operated JV Paving as a sole proprietorship, when an inattentive driver struck and seriously injured him. Plaintiff had worked for his employer as a pavement laborer and driver for a few months, and had participated in about twenty paving jobs without incident. On the job, plaintiff was a jack-of-all-trades, whose tasks included fixing equipment, driving machinery, and directing traffic around construction areas. When plaintiff began working there, he received no safety instructions, safety manuals, clothing, or equipment. The employer admitted that he did not have written safety policies or manuals, and only gave safety instructions verbally.
We refer to these two defendants jointly as "the employer."
On the day of the accident, Valvano, plaintiff and another employee were working on a driveway paving job. Plaintiff was a "flagger," stopping traffic so that Valvano could move a backhoe in and out of the driveway onto a busy county road. The speed limit on the road was forty miles per hour. Plaintiff directed traffic while standing in the center of the travel lane with only a hand-held stop sign to stop the traffic. Despite having fluorescent jackets, warning signs, cones, and flags available, Valvano did not direct plaintiff or the other employee to utilize them. Thus, apart from plaintiff, standing in the middle of the road with a hand-held stop sign, there was no advance warning to cars, traveling at or over the speed limit, that paving equipment or workers might be in the road.
While plaintiff was facing oncoming traffic holding the stop sign, defendant Adam Abrahams struck him with his vehicle, causing serious injuries. Abrahams reported that he took his eyes off the road to look at his radio just before the accident. He later stated that if there been warning cones in the roadway, he would have driven more slowly.
When the police responded to the scene, an officer issued the employer two summonses, one for not having proper construction warning signs, N.J.S.A. 39:4-183.22a, and the other for not complying with the signage requirements of the Manual on Uniform Traffic Control Devices, N.J.S.A. 39:4-203.5c. Defendant pled guilty to violation of N.J.S.A. 39:4-183.22a and the other charge was dismissed.
Subsequently, plaintiff filed a civil complaint against the driver of the car, its owner, and the employer. Plaintiff retained an engineering expert, Dr. Wayne Nolte, who concluded that the employer "knowingly exposed [plaintiff] to a risk that was substantially or virtually certain to result in harm." In support of his conclusion, Dr. Nolte identified various safety violations, including failure to provide proper road signage, failure to comply with the Manual on Uniform Traffic Control Devices, failure to provide reflective safety vests, failure to comply with OSHA regulations, failure to have a written safety program, failure to adequately train employees in safety procedures, and failure to enforce safety policies to protect workers from harm.
After discovery was complete, the employer moved for summary judgment. Judge Arthur Bergman granted the motion on the basis that the employer's conduct, while negligent, did not amount to an "intentional wrong" within the meaning of the Act. Thereafter, plaintiff settled his claims against the driver and vehicle's owner and they were dismissed from the case. Plaintiff then filed a motion to reconsider the grant of summary judgment to the employer, which Judge Bergman denied on January 6, 2012. This appeal followed.
On appeal, plaintiff raises the following issues for our consideration:
POINT I: THE TRIAL JUDGE ERRED IN GRANTING DEFENDANTS' SUMMARY JUDGMENT MOTION AND IN DENYING PLAINTIFF'S MOTION FOR RECONSIDERATION OF SAME.
A. The Trial Court Failed to Apply the Correct Legal Standards on Defendants' Motion for Summary Judgment and on Plaintiff's Motion for Reconsideration.POINT II: THE TRIAL JUDGE MISINTERPRETED AND MISAPPLIED THE LAW ON THE SUBSTANTIVE ISSUE BEFORE HIM IN GRANTING DEFENDANTS' SUMMARY JUDGMENT MOTION AND IN DENYING PLAINTIFF'S MOTION FOR RECONSIDERATION OF SAME.
B. The Trial Court Impermissibly Invaded the Province of the Jury in Ruling that Plaintiff's Being Struck by the Abrahams Vehicle was an "Intervening Cause" that Absolved Defendants of Liability.
A. The Trial Court Failed to Apply the Appropriate Standard of Review Regarding Plaintiff's Laidlow Claim.
B. The Trial Court Erred in Finding that the Plaintiff Failed to Present Evidence Sufficient to Go to a Jury of the Defendants'
Knowledge that Their Conduct was Substantially Certain to Cause Injury or Death.
C. The Trial Court Erred in Finding that the Defendants' Conduct Did Not Fall Outside the Purview of the Conditions Intended by the Legislature to be Immunized by the Workers' Compensation Bar.
In essence, plaintiff argues that he may pursue common law remedies for damages because the employer knowingly ignored numerous safety laws, regulations, and procedures, thereby exposing plaintiff to a virtual certainty of injury. On the other hand, the employer maintains that its conduct did not amount to an intentional wrong, and thus the Act provides the exclusive remedy to plaintiff.
We review the grant or denial of a motion for summary judgment using the same standard as the trial judge, granting no deference to the lower court's legal conclusions or application of law to the facts. W.J.A. v. D.A., 210 N.J. 229, 237-38 (2012). This Court must inquire anew into "whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor" of that party. Brill, supra, 42 N.J. at 540; R. 4:46-2(c).
Workers' Compensation has been described by the Supreme Court "as an historic 'trade-off.'" Laidlow v. Hariton Mach. Co., Inc., 170 N.J. 602, 605 (2002). By implied agreement, employees volunteer to give up their right to pursue common-law remedies for work-related injuries and illnesses, in return for an automatic entitlement to a limited recovery. Ibid.; N.J.S.A. 34:15-1 to -128. Similarly, the employer accepts strict liability for workplace injuries in return for limited and definite financial exposure. This system is effectuated through the exclusive remedy provision:
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.
[N.J.S.A. 34:15-8.]
The intentional wrong exception to the exclusivity of relief provided by workers' compensation was first construed by our Supreme Court in Millison v. E.I. Du Pont de Nemours & Co., 101 N.J. 161 (1985). In that decision, the Court held that the plaintiffs' claims that the employer had fraudulently concealed that they were suffering from asbestos-related diseases, thereby delaying treatment and aggravating their existing illness, constituted an intentional wrong which was an exception to the workers' compensation bar. Id. at 181-82. The Court recognized that:
[T]he statutory scheme contemplates that as many work-related disability claims as possible be processed exclusively within the Act. Moreover, 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.]
Thus, in Millison, the Court emphasized that the concept of "intentional wrong" encompassed more than a subjective intention to injure. In considering what level of risk and exposure to danger was "so egregious as to constitute an 'intentional wrong,'" the Court concluded that mere knowledge and appreciation of a risk of harm to an employee cannot be considered intent. Ibid. Rather, the Court adopted a "substantial certainty" standard. Id. at 178. The Court held that a plaintiff can show an intentional wrong by proving two elements, known as the "conduct" and "context" prongs, respectively. First, the employer must knowingly expose the employee to a substantial certainty of injury. Second, the resulting injury must not be "a fact of life of industrial employment," and must be plainly beyond anything the Legislature intended the Act to immunize. Id. at 178-79.
The next major explication of the intentional wrong standard was articulated in Laidlow, supra, 170 N.J. at 605. There, the Court examined the intentional wrong exception in the context of an industrial accident where a safety device had been disengaged for reasons of speed and efficiency. The Court held that the employer acted with knowledge that it was substantially certain that a worker would suffer an injury when the employer tied a safety guard on a rolling mill, releasing it only when the Occupational Safety and Health Administration (OSHA) inspectors were present and although no injuries had occurred in the past, there had been several close calls that had been reported to the employer. Id. at 620-22. The Court further held that an employee injury under these circumstances would never constitute the simple facts of industrial life. Id. at 622.
Following Millison and Laidlow, the Court applied the two-part test to various factual circumstances. In Mull v. Zeta Consumer Products, 176 N.J. 385, 392-93 (2003), the Court held that an employer's wrongful conduct in removing safety devices from a machine, despite prior injuries, complaints by other employees, and prior OSHA safety citations, met the two-part exception for an intentional wrong. Likewise, in Crippen v. Central Jersey Concrete Pipe Co., 176 N.J. 397, 410-11 (2003), the Court allowed a worker's estate to seek common law damages where OSHA had cited the employer for several violations that had not been cured and the employer's safety manager admitted that conditions at the plant were dangerous and life-threatening. By contrast, in Tomeo v. Thomas Whitesell Construction Co., 176 N.J. 366, 378 (2003), the Court upheld summary judgment for the employer despite an alleged disabled safety device where the machine had warnings posted on it that the worker ignored by reaching into the machine while the propellers were rotating. Id. at 375-78.
Most recently, in Van Dunk, supra, 210 N.J. at 474, the Court held that the Act's exclusivity bar applied where the workplace accident produced an OSHA citation for a "willful" violation of OSHA safety rules. In Van Dunk, the plaintiff, a construction worker, had been injured when a trench collapsed on him at his worksite. The unsupported trench was excavated to a depth far beyond which a worker could safely enter without safety equipment, according to OSHA safety rules and the employer's safety program. Id. at 454. The employer was charged with willful violation of OSHA regulations, did not contest the charges, and was fined. Id. at 455. The supervisor acknowledged the violations, including conceding to not using safety equipment despite having it at the job site. Ibid.
The Court held "that the finding of a willful violation under OSHA is not dispositive of the issue of whether the employer in this case committed an intentional wrong." Id. at 470. With respect to the conduct prong of the intentional wrong exception, the Court explained that "[a] probability, or knowledge that [] injury or death 'could' result, is insufficient." Ibid. Instead, the "intentional wrong must amount to a virtual certainty that bodily injury or death will result." Ibid. Furthermore, the Court observed that the "high threshold" of the context prong was not met by "the type of mistaken judgment by the employer and ensuing employee accident that occurred on [the] construction site." Id. at 474.
In finding no intentional wrong, the Court distinguished the cases described above because "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." Id. at 471. In short, while the knowing failure to take safety precautions was an "exceptional wrong," it was not the type of egregious conduct associated with an intentional wrong.
Thus, in addition to violations of safety regulations or failure to follow good safety practice, an intentional wrong must be accompanied by something more, typically deception, affirmative acts that defeat safety devices, or a willful failure to remedy past violations. See Laidlow, supra, 170 N.J. at 616 (quoting Millison, supra, 101 N.J. at 179) (noting that the "mere toleration of workplace hazards 'will come up short' of substantial certainty"). Absent such egregious conduct, the employee is limited to the workers' compensation remedy.
Applying the above principles, we first note two significant similarities to the facts in Van Dunk. First, the employer received citations for violating traffic safety laws, pled guilty, and paid a fine. Second, the employer had safety equipment available (reflective vests, cones, flags, and signs), but did not use it. Similar to Van Dunk, while the facts here amount to negligence, perhaps even gross negligence, they do not approach the facts in cases such as Millison, Laidlow, Mull, and Crippen. In those cases, the employer was responsible for an affirmative act that made the workplace significantly less safe for its employees. The record contains no such affirmative act by the employer here.
Even viewing the facts in the light most favorable to plaintiff, we cannot find that the employer knowingly exposed him to a virtual certainty of harm. There were no prior safety violations that the employer refused to remedy, he did not take any affirmative action that impaired his employees' safety, and he did not try to deceive plaintiff, law enforcement, or anyone else about the dangers present in the workplace. Admittedly, the employer ignored various safety precautions and regulations, and in doing so created a greater risk of injury to plaintiff. While this conduct is clearly not to be condoned, we are convinced that it does not amount to an intentional wrong that allows plaintiff to avoid the workers' compensation bar.
In summary, the evidence, when viewed in plaintiff's favor, is simply insufficient to support the claim that the employer knew his actions were virtually certain to result in injury to plaintiff. Because our analysis of the evidence relevant to the conduct prong leads us to conclude that plaintiff has failed to meet his burden at this stage of the litigation of proffering prima facie proof of an intentional wrong, we need not address the context prong. See Laidlow, supra, 170 N.J. at 623.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION