WAYNE PETER D'ARTAGNAN, JR. v. TED BREWER BUILDING CONTRACTOR, and/or TWB, INC.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5180-04T15180-04T1

WAYNE PETER D'ARTAGNAN, JR.,

Plaintiff-Appellant,

v.

TED BREWER BUILDING

CONTRACTOR, and/or TWB, INC.,

Defendant,

and

JOSEPH GIANGRASSO, individually, and

GIANGRASSO BUILDERS, INC.,

Defendants-Respondents.

 

Submitted April 4, 2006 - Decided May 22, 2006

Before Judges Hoens and R. B. Coleman.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1454-03.

Wayne Peter D'Artagnan, Jr., appellant pro se.

Arun Deshbandhu Lavine, attorney for respondent Joseph Giangrasso.

Margolis Edelstein, attorneys for respondent Giangrasso Builders, Inc. (Walter H. Iacovone, on the brief).

PER CURIAM

Plaintiff Wayne P. D'Artagnan, Jr., appeals from the April 15, 2005 order granting summary judgment in favor of defendants Giangrasso Builders, Inc. and Joseph Giangrasso. We affirm.

Plaintiff, an employee of defendant Giangrasso Builders, Inc., sued that entity and Joseph Giangrasso, its principal, for injuries plaintiff sustained at a job site in July 2001. According to plaintiff, he was working on the second floor of a residence then being constructed by defendant Ted Brewer Building Contractor, also known as TWB Inc. At the time, Giangrasso Builders, plaintiff's employer, was performing work as a framing subcontractor for TWB.

On the day of the accident, plaintiff, Joseph Giangrasso and other workmen, were "boxing the butt end of the floor joists on an overhanging porch." When Giangrasso directed plaintiff to put a board across the overhang, plaintiff protested that the board was too heavy for him to lift up, hold over the edge and nail into place. According to plaintiff, Giangrasso then taunted him and called him names, which caused plaintiff to attempt to perform the task as Giangrasso had directed. As plaintiff tried to lift the board, he fell from the second floor to the ground, sustaining severe injuries.

Following the close of discovery, defendants moved for summary judgment, asserting that plaintiff's claims against them were barred by the exclusive remedy of workers' compensation. N.J.S.A. 34:15-8. Plaintiff acknowledged that he had sought, and had received, a workers' compensation award in 2004 and that he is barred from recovering compensatory damages from his employer absent evidence of an intentional act. See Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 161, 177 (1985). He asserted, in opposition to defendants' summary judgment motion, that there is sufficient evidence in the record to demonstrate that his injury was caused by an intentional act. After considering the briefs and exhibits and after hearing oral arguments, the judge granted the summary judgment motions filed by defendants.

On appeal, plaintiff argues that the judge erred both in his analysis of the facts and in his application of the law to the facts in the record. In particular, he asserts that the judge first overlooked disputed issues of fact about his level of experience in performing the job. In addition, plaintiff argues that the judge erred by requiring him to produce evidence of a prior accident, personal animus or a previous citation for a safety violation in order to demonstrate that the employer's actions were intentional. Based on our review of the record, we conclude that plaintiff's understanding of the judge's decision and plaintiff's analysis of the intentional act exception are both flawed. We discern no error in the judge's analysis of the facts that led to plaintiff's injuries or in his application of the law to those facts. We therefore affirm.

Our Supreme Court has held that workers' compensation is designed to be an exclusive remedy and that the intentional act exception is therefore to be strictly interpreted. See Millison, supra, 101 N.J. at 177. In particular, the Court has cautioned us to address whether the act complained of has created a level of risk and exposure to danger that is "so egregious as to constitute an 'intentional wrong.'" Ibid. In this context, an employer's mere knowledge about and appreciation of a risk of harm to an employee will not equate with an intentional act. Ibid. Rejecting a subjective intent to harm standard, the Court has adopted a "substantial certainty" test. Id. at 177-78. The intentional wrong exception may be satisfied when the employer's conduct is "plainly beyond anything the legislature could have contemplated as entitling the employee to recover only under the Compensation Act[.]" Id. at 179.

In the years since the Court decided Millison, it has further explained the meaning and scope of the intentional act exception. In Laidlow v. Hariton Machine Co., 170 N.J. 602 (2002), the Court considered the intentional act exception in light of facts demonstrating that the employer had disabled a safety guard and had deceived OSHA about it. Id. at 622. The Court there characterized the Millison rule as establishing a two-prong test which examines not only the conduct of the employer but also the context in which the injury occurred. Id. at 614. In setting forth the analytical framework to be used by judges in deciding summary judgment motions based on the intentional act exception, Justice Long wrote:

[A]s a practical matter, when an employee sues an employer for an intentional tort and the employer moves for summary judgment based on the Workers' Compensation bar, the trial court must make two separate inquiries. The first is whether, when viewed in a light most favorable to the employee, the evidence could lead a jury to conclude that the employer acted with knowledge that it was substantially certain that a worker would suffer injury. If that question is answered affirmatively, the trial court must then determine whether, if the employee's allegations are proved, they constitute a simple fact of industrial life or are outside the purview of the conditions the Legislature could have intended to immunize under the Workers' Compensation bar. Resolving whether the context prong of Millison is met is solely a judicial function. Thus, if the substantial certainty standard presents a jury question and if the court concludes that the employee's allegations, if proved, would meet the context prong, the employer's motion for summary judgment should be denied; if not, it should be granted.

[Id. at 623.]

More recently, the Court has returned to a consideration of the scope and meaning of the intentional act exception in three cases that apply and explain the Laidlow rule. See Crippen v. Central Jersey Concrete Pipe Co., 176 N.J. 397, 409 (2003); Mull v. Zeta Consumer Products, 176 N.J. 385, 391 (2003); Tomeo v. Thomas Whitesell Construction Co., 176 N.J. 366, 372 (2003).

Significantly, each of these more recent decisions reiterates the essential meaning of the Millison rule. In Tomeo, for example, the Court concluded that the risk of injury to the employee must be a "virtual certainty" to avoid the exclusivity bar. Tomeo, supra, 176 N.J. at 371. In both Mull and Crippen, the Court found that an employer's failure to cure a safety hazard that had been the subject of a prior OSHA citation was evidence of an intentional act on the part of the employer. Crippen, supra, 176 N.J. at 409; Mull, supra, 176 N.J. at 392-93.

Tested against these several Supreme Court precedents, plaintiff's proofs are insufficient to demonstrate that his employer engaged in an intentional wrong. Taking all of the facts in the record in the light most favorable to plaintiff, he picked up a board that was too heavy for him to lift because his employer "taunted him" into doing so. Absent from this record, however, is any evidence that the employer's action, either of telling plaintiff to lift the board, as other employees did regularly and without incident, or of taunting him when he expressed reluctance, was conduct that was "virtual[ly] certain [to cause] injury to [the employee] . . . ." See Tomeo, supra, 176 N.J. at 372 (quoting Laidlow, supra, 170 N.J. 608-09).

Nor do we agree with plaintiff's assertion on appeal that the motion judge altered the appropriate test by requiring proof of a history of prior accidents, of safety violations or of OSHA citations. Rather, the judge's comments reflect his understanding of the Court's analysis in Laidlow, Mull and Crippen where known safety hazards and OSHA violations were considered. It was entirely appropriate, in the context of the virtual certainty test, for the judge to comment on the lack of any evidence of prior safety violations, prior accidents or even personal animus toward plaintiff from his employer. In doing so, the judge did not require plaintiff to prove that any of these particular facts existed. Rather, the judge used them as benchmarks of the employer's knowledge of danger, and therefore of intent, in light of the discussions of factors such as those in the applicable precedents.

Finally, we reject, as we must, plaintiff's apparent belief that the severity of his injuries alone should support his right to seek to recover damages from his employer. Although his injuries were significant, and although plaintiff regards his workers' compensation award as insufficient, neither of those factors is relevant to whether the proofs permit him to overcome the exclusivity of the worker's compensation remedy. We discern no error in the decision of the motion judge and no basis on which to conclude that defendants engaged in an intentional act, which would permit plaintiff to overcome their motion for summary judgment.

Affirmed.

 

At the same time, the judge denied the summary judgment motion filed by Ted Brewer Building Contractor and/or TWB, Inc. Plaintiff subsequently settled with those entities and they are not parties to this appeal.

(continued)

(continued)

8

A-5180-04T1

May 22, 2006