WALDERMAN WIZZARD et al. v. MARCIA WIZZARD

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6266-03T56266-03T5

WALDERMAN WIZZARD and

MARCIA WIZZARD,

Plaintiffs-Appellants,

v.

MT. HOPE ROCK PRODUCTS, INC.,

Defendant-Respondent,

and

TILCON, INC., TILCON NEW YORK, INC.,

TILCON NEW JERSEY, INC., TILCON

QUARRIES NEW JERSEY, INC., TILCON

CONSTRUCTION CORP., TILCON DELAWARE,

INC., TILCON-WARREN, INC., TILCON-

WARRAEN QUARRIES, INC. AND APPLEGATE

ASSOCIATES,

Defendants.

____________________________________

 

Submitted July 5, 2006 - Decided August 1, 2006

Before Judges Skillman and Lisa.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-1463-02.

Panitch & Rachinsky, attorneys for appellants (Richard S. Panitch, of counsel and on the brief; Joanna Lehder and John J. Rachinsky, on the brief).

Garrity, Graham, Favetta & Flinn, attorneys for respondent (John Badagliacca, of counsel and on the brief).

PER CURIAM

Plaintiff Walderman Wizzard suffered personal injuries in an accident occurring during the course of his employment with defendant Mt. Hope Rock Products, which operates a quarry and a soil remediation and asphalt recycling plant in Wharton. While plaintiff was attempting to unjam a feeder that was part of a conveyor system, the conveyer belt was activated, which caused plaintiff's hand and arm to be drawn into the machine and resulted in serious injuries. Plaintiff and his wife per quod brought this personal injury action against defendant, which raised as a defense the exclusive remedy provision of the Workers' Compensation Act, N.J.S.A. 34:15-8. Plaintiff contended that his claim was not barred by N.J.S.A. 34:15-8 because defendant's actions constituted an "intentional wrong." After the completion of discovery, Judge Walsh granted defendant's motion for summary judgment, holding in a written opinion that there was no basis for concluding that defendant's actions constituted an intentional wrong because the evidence could not support a finding that defendant knew that its actions were "substantially certain" to result in injury or death to an employee or that the injury and the circumstances of its infliction were "(a) more than a fact of life of industrial employment and (b) plainly beyond anything the Legislature intended the Workers' Compensation Act to immunize." Laidlow v. Hariton Mach. Co., 170 N.J. 602, 617 (2002). We affirm the summary judgment in favor of defendant substantially for the reasons set forth in Judge Walsh's opinion.

Affirmed.

 

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A-6266-03T5

August 1, 2006