GUISEPPINA VERTERAMO, et al. v. WINSTON TOWERS 200 ASSOCIATES, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6498-04T16498-04T1

GUISEPPINA VERTERAMO,

Administratrix and Administratrix

Ad Prosequendum for the Estate of

RAFFAELE VERTERAMO, Deceased, and

GUISEPPINA VERTERAMO, Individ-

ually,

Plaintiffs-Appellants,

v.

WINSTON TOWERS 200 ASSOCIATES,

and ROSE ASSOCIATES, INC.,

Defendants-Respondents.

________________________________________________________________

 

Submitted May 16, 2006 - Decided June 2, 2006

Before Judges Lefelt and R. B.

Coleman.

On appeal from the Superior Court of

New Jersey, Law Division, Bergen County,

Docket No. L-5878-003.

Rosemarie Arnold, attorney for appellant

(Evan D. Baker, on the brief).

Bourne, Noll & Kenyon, attorneys for

respondent Winston Towers 200 Associates

(Jaime A. O'Brien, on the brief).

McDermott & McGee, attorneys for

respondent Rose Associates, Inc.

(Richard M. Tango, of counsel;

Michael W. Cartelli, on the brief).

PER CURIAM

Raffaele Verteramo suffered fatal head injuries when he fell from a ladder while performing his job as a maintenance worker at a high rise condominium complex, defendant Winston Towers 200 Associates. Verteramo's widow, plaintiff Guiseppina Verteramo, received workers' compensation benefits for her husband's death from Winston Towers, Verteramo's employer, and then as Administratrix and Administratrix ad Prosequendum of her husband's estate, brought a personal injury and wrongful death action against Winston Towers and defendant Rose Associates, Inc. Plaintiff appeals from Judge Moses's summary judgment in favor of defendants, which concluded that plaintiff's claim against Winston Towers was barred by the exclusivity provision of the Workers' Compensation Act, N.J.S.A. 34:15-8, and that plaintiff had no basis to sue Rose Associates. We affirm substantially for the reasons articulated by Judge Moses in her comprehensive July 1, 2005, oral decision.

Under the Workers' Compensation Act, "[a]n employee's exclusive remedy against the employer for ordinary work injuries is a statutory remedy without regard to fault." Gore v. Hepworth, 316 N.J. Super. 234, 240 (App. Div. 1998), certif. denied, 158 N.J. 70 (1999). In exchange for receiving compensation benefits, "the employee forgoes a common law tort remedy." Ibid.; Ramos v. Browning Ferris Indus., 103 N.J. 177, 183 (1986).

To avoid the Act's exclusivity clause, an injured employee must prove an intentional wrong. N.J.S.A. 34:15-8. This requires a showing that the employer had a "deliberate intention to injure." Millison v. E.I. Du Pont de Nemours & Co., 101 N.J. 161, 170 (1985). An employee can prove "intent to injure" through either "evidence of the employer's actual intent to injure," or "circumstances where the employer knows an injury is a substantial or virtual certainty." Mabee v. Borden, Inc., 316 N.J. Super. 218, 227-28 (App. Div. 1998) (citing New Jersey Mfrs. Ins. Co. v. Joseph Oat Corp., 287 N.J. Super. 190, 197, certif. denied, 142 N.J. 515 (1995). An employer's mere awareness of a risk that ultimately results in an accident does not constitute an intentional wrong under the Act. "Deliberate intent to injure" is present only when an employer "'desires to cause [the] consequences of his act or is substantially certain that such consequences will result from his actions.'" Millison, supra, 101 N.J. at 178 (quoting Restatement (Second) of Torts 8A). "Even an injury 'caused by either gross negligence or an abysmal lack of concern for the safety of employees' is insufficient to satisfy the 'intentional wrong' exception." Kaczorowska v. Nat'l Envelope Co., 342 N.J. Super. 580, 587 (App. Div. 2001) (quoting Marinelli v. Mitts & Merrill, 303 N.J. Super. 61, 72 (App. Div. 1997)).

Here, Verteramo's tragic accident, at most, resulted from Winston Tower's negligence in not equipping him with a better ladder. The particular ladder used was a one-piece aluminum ladder that was originally part of a two-piece extension ladder and had been utilized by maintenance workers at the condominium for approximately fifteen years. The ladder was broken at the top, but was two feet higher than the area Verteramo climbed to. The base of the ladder did not have any rubber feet or stops to prevent the ladder from slipping. Yet no complaints or problems were reported with the ladder, and it had been successfully used many times by Verteramo and other workers prior to the accident.

Allowing Verteramo to use this ladder cannot support a finding that Winston Towers had the "deliberate intent" to cause Verteramo's fall. Nor do the circumstances surrounding this accident give rise to a "substantial" or "virtual" certainty that an injury would occur due to the use of this ladder. Even an awareness by Winston Towers of a significant risk that one of its employees would fall from a ladder, "does not constitute the requisite intent needed to circumvent the Workers' Compensation statute," which cannot be avoided "simply because a known risk later blossoms into reality." McGovern v. Resorts Inter. Hotel, 306 N.J. Super. 174, 181 (App. Div. 1997) (citing Millison, supra, 101 N.J. at 178, and Marinelli, supra, 303 N.J. Super. at 772. The Act and case law "demand a virtual certainty," and that is not present here. Ibid. In addition, the context of this accident shows, unfortunately, that it may "fairly be viewed as a fact of life of industrial employment," and falls squarely within the Legislature's intent to compensate injured employees while on the job exclusively through workers' compensation. Millison, supra, 101 N.J. at 178-79.

Plaintiff's expert witness provided a report that contains no support for his conclusion that Verteramo's death was "substantially certain" to occur under the circumstances. The expert failed to provide any factual connection between (1) defendants' allegedly wrongful conduct and (2) Verteramo's fall and death. See Buckelew v. Grossbard, 87 N.J. 512, 524-25 (1981). Although the expert identifies alleged defects in the ladder's condition, the report was prepared before the expert had examined the specific ladder in question, and the expert provides no explanation for how those defects led to the death, or how they made it "substantially certain" that Verteramo would be injured. At best, the expert's report established a potential for injury.

Even when all reasonable inferences are drawn in plaintiff's favor, she has failed to create an issue of fact sufficient to withstand summary judgment. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). In short, the expert's conclusory statements that parrot the crucial language deemed important under the case law, do not save plaintiff's case because there is no reliable factual basis upon which anyone could find that Verteramo's injury and death was "substantially certain" to occur as the result of climbing a ladder that had been used without incident for fifteen years.

In addition, Judge Moses correctly granted Rose Associates summary judgment. Rose Associates is a property manager firm that negotiated the contract between Winston Towers and plaintiff's union. Rose was not an employer and only negotiated the union contract on behalf of Winston Towers. Verteramo was an employee of Winston Towers, not Rose. His supervisors were both employees of Winston Towers and they were responsible for the maintenance work performed by Verteramo, not Rose. The collective bargaining agreement cited by plaintiff explicitly refers to the "employer," as the party responsible for maintaining safe work conditions and providing necessary equipment. The employer here was Winston Towers, not Rose.

"[A] fundamental requisite for tort liability is the existence of a duty owing from defendant to plaintiff." City Check Cashing, Inc. v. Manufacturers Hanover Trust Co., 166 N.J. 49, 61 (2001) (quoting Penn. Nat'l Turf Club v. Bank of W. Jersey, 158 N.J. Super. 196, 203 (App. Div.), certif. denied, 77 N.J. 506 (1978)). Plaintiff, in this case, simply failed to show why Rose owed any duty to Verteramo.

For the reasons explained, Judge Moses's summary judgment in favor of defendants, Winston Towers and Rose, is unassailable.

Affirmed.

 

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A-6498-04T1

June 2, 2006