DANIEL AQUILINO CALVA CALLE Administrator ad prosequendum of the Estate of CHRISTIAN DANIEL CALVA SIGUENA, Deceased and DANIEL AQUILINO CALVA CALLE individually v. HITACHI POWER TOOLS, AMERICAN STYLE CONSTRUCTION, INC HITACHI KOKI, USA , LTD., and HIT

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1985-07T11985-07T1

DANIEL AQUILINO CALVA CALLE

Administrator ad prosequendum

of the Estate of CHRISTIAN

DANIEL CALVA SIGUENA, Deceased,

and DANIEL AQUILINO CALVA CALLE,

individually,

Plaintiff-Appellant,

v.

HITACHI POWER TOOLS, AMERICAN

STYLE CONSTRUCTION, INC.,

HITACHI KOKI, USA , LTD., and

HITACHI KOKI CO., LTD.,

Defendants-Respondents.

_______________________________________________

 

Argued October 14, 2008 - Decided

Before Judges R. B. Coleman, Sabatino and Simonelli.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-06-05.

William L. Gold argued the cause for appellant (Bendit Weinstock, attorneys; Sherri Davis Fowler and Mr. Gold on the brief).

Robert G. Alencewicz argued the cause for respondent Hitachi Koki, USA, Ltd. (Hack, Piro, O'Day, Merklinger, Wallace & McKenna, attorneys; Mr. Alencewicz, on the brief).

Richard W. Wedinger argued the cause for respondent American Style Construction, Inc. (Barry, McTiernan & Wedinger, attorneys; Mr. Wedinger, on the brief).

PER CURIAM

Plaintiff, Daniel Aquilino Calva Calle, individually and as Administrator ad prosequendum on behalf of the Estate of Christian Daniel Calva Siguenza, appeals from separate orders dated November 16, 2007, granting summary judgment in favor of defendants, Hitachi Power Tools, American Style Construction, Inc. (American Style) and Hitachi Koki, USA, Ltd. (Hitachi). Hitachi manufactured a nail gun, or nailer, that Christian Daniel Calva Siguenza, the decedent, was using immediately prior to the time of his death. American Style was decedent's employer. We reverse the judgment entered in favor of the manufacturer, Hitachi; we affirm the judgment in favor of the employer, American Style.

On the morning of December 31, 2002, the decedent, Christian, a carpenter employed by American Style, went to work at his jobsite at 25 Montgomery Street, Yonkers, New York. At approximately 8:55 a.m., Christian was standing on a ladder working outside the second story of the building structure when he asked a co-worker, Lider Onteneda, who was on the second floor interior of the building, to pass a nail gun to him. After handing Christian the nail gun, Onteneda went back to work and noticed nothing further out of the ordinary. Jose Cevallas, working on a separate ladder alongside the decedent, saw him suddenly fall forward and "hug" the ladder he was standing on. Another co-worker, Rogerio Silva, observed him from the second floor "limp on the ladder" with a nail gun that dropped from his hand to the ground. Co-workers then removed him from the ladder, pulling him through a second story window.

Decedent was pronounced dead at the scene by paramedics at 9:20 a.m. The cause of death was a puncture wound to the chest created by a large nail. Investigators from the Yonkers Police Department interviewed everyone at the worksite and retrieved four pneumatic nailers which were photographed, marked and collected as evidence. No eyewitnesses saw the actual discharge of the nail into decedent's body.

Later in the morning, Occupational Safety and Health Administration (OSHA) officials arrived to conduct an investigation of the worksite and equipment. Defendant American Style initially denied access to OSHA. However, it eventually acquiesced to the Department's investigation. In its narrative report, OSHA concluded that all four of the nailers used by American Style construction workers were in disrepair. The dust shields had been removed from three of the nailers, and the compression safety springs had been removed from two. The OSHA investigation report also concluded that the three-inch nail which caused decedent's death was discharged from the Hitachi NV-83A nailer he was using on the jobsite, and that the nailer was missing its safety spring mechanism.

Plaintiff, the father of the decedent, filed a complaint in the Law Division, Essex County, alleging, among other things, that the decedent's personal injury and wrongful death were caused by defects in the design and manufacture of the nail gun and by the intentional conduct of decedent's employer in altering the nail gun. In the complaint, plaintiff alleges that it is foreseeable that workers or employers seeking to lessen the physical exertion or to maximize efficiency on the jobsite may be tempted to remove the safety device.

Upon completion of discovery, defendant Hitachi and defendant American Style filed separate motions for summary judgment. Hitachi argued, among other things, that plaintiff could not establish how the nail was caused to be fired into decedent's chest and could not establish that a defect existed in the nailer at the time of the incident. American Style argued it is protected by the exclusive remedy provision of the Workers' Compensation Act, N.J.S.A. 34:15-8, and that there is no evidence that it committed an intentional wrong.

Plaintiff opposed both motions, relying upon a report prepared by his proposed mechanical engineering expert, Clifford B. Anderson, P.E. Anderson, who has a master's degree in mechanical engineering, and has over thirty years of experience in the field, has taught upper level courses on mechanical engineering and pneumatics.

Anderson explains in his report that the Hitachi NV-83A nailer is a hand-held compressed air powered tool for driving nails into building materials. The tool's coil-style magazine discharges nails using a dual-action triggering mechanism consisting of a finger trigger and point-of-operation push lever. The purpose of the dual-action design is to prevent unintentional operation of the tool. A safety device, an externally mounted compression spring, keeps the nose-mounted push lever in an extended position until a specified amount of pressure is applied causing actuation when the trigger is concurrently pulled.

Anderson observed, however, that the compression spring can be removed easily, without tools or disassembly of the unit, and once the spring is removed, the amount of pressure at the point-of-operation required to discharge a nail is greatly reduced. With that premise, Anderson opines that the design of the subject nail gun is defective due to the compression spring's susceptibility to removal. In his report, Anderson lists remedial measures, which in his opinion, Hitachi could have implemented to reduce or eliminate the potential disengagement of the nail gun's safety features.

Anderson noted, and American Style acknowledges, that in addition to being intentionally removed, the compression spring, due to its external location, is also subject to being dislodged during normal construction use. Anderson claims the latter possibility is problematic in that visual inspections by users would not necessarily alert them to a missing spring due to the design of the tool. Finally, Anderson compared the design of the Hitachi NV-83A to other designs on the market and offered specific examples of technology that Hitachi possessed which would have eliminated or reduced the risk of the type of harm sustained by the decedent.

The trial court concluded that the opinion of plaintiff's expert was deficient in that it lacked concrete scientific or mechanical information upon which a trier of fact could then be assisted in its understanding of the range of acceptable pressure that should be exerted on the nailer. No testing or calibration had been done to ascertain what level of "light force" would allow the nailer to be activated when the compression spring was removed. The court reasoned that a jury could conclude that a design defect existed "only if it accepted that in and of itself the absence of the safety spring was in fact what was going on that day, [and] that . . . the nail could have been discharged by either brushing or with very light pressure." As the court viewed the evidence proffered by plaintiff, "there's nothing about the amount of pressure, [or] the range of safety that was acceptable." Accordingly, the court granted Hitachi's motion for summary judgment.

As to American Style's motion, the court observed that plaintiff had failed to indicate what evidence demonstrated that the employer had committed an action that had a substantial certainty of causing injury. The court noted that during oral arguments on the motion, "I continued to ask the plaintiff [to] tell me what the evidence is that shows intentional wrongdoing and the answer is that - - either the employees or the employer, it had to be one or the other." In light of that response, the court concluded plaintiff had failed to make a prima facie showing of an intentional wrong on the part of the employer. This appeal ensued.

I

An appellate court, in its review of summary judgment orders, applies the same standard as the trial court.
Bennett v. Lugo, 368 N.J. Super. 466, 479 (App. Div.), certif. denied, 180 N.J. 457 (2004); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div. 1998). Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2 (c). To make a determination whether a genuine issue of material fact exists requires the court to evaluate whether the competent evidence presented, "viewed in the light most favorable to the non-moving party, is sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). The court's role is to determine whether any genuine issues for trial exist, not to weigh the evidence itself and decide on the truth of the matter. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. at 2511, 91 L. Ed. 2d at 212 (1986).

Pursuant to the New Jersey Products Liability Act, N.J.S.A. 2A:58c-1 to -11, "[a] manufacturer or seller of a product shall be liable in a products liability action only if the claimant proves by a preponderance of the evidence that the product causing the harm was not reasonably fit, suitable or safe for its intended purpose because it: . . . c. was designed in a defective manner." Our Supreme Court has held that "a subsequent alteration of a manufactured product will not serve to provide a defense to the manufacturer if that subsequent alteration is not substantial in terms of the essential features of the product." Soler v. Castmaster, Div. of H.P.M. Corp., 98 N.J. 137, 147 (1984). "[W]hile a change in a product may be material or significant from a design or operational standpoint, it is not 'substantial' for strict liability purposes unless it is related to the safety of the product." Id. at 148. "A substantial alteration is one that involves not only a material change in the design or function of the product but also affects the risk of danger in its use." Ibid.

In this case, plaintiff contends the nail gun used by his deceased son was defectively designed because the foreseeable removal of a safety feature made discharge of the nail gun easier and riskier for potential users. The motion judge appears to have determined that the opinion of plaintiff's expert would not assist the jury because the amount of pressure required to discharge the nailer was not calibrated or quantified. The lack of calibration certainly bears upon the weight to be accorded the expert's opinion, but it does not so diminish the value of that opinion as to render it of no use to the jury. Hisenaj v. Kuehner, 194 N.J. 6, 24 (2008) (noting that the weight of an expert's opinion is for the jury to decide, and that particular alleged flaws in the expert's reasoning may be explored on cross-examination); accord Lanzet v. Greenberg, 126 N.J. 168, 186 (1991).

We recognize that Hitachi contends that two steps are required to discharge the tool. It further asserts that "it is not normal for a person to take a nailer and apply it against themselves [sic] and pull the trigger," and that a product is not defective when it is safe for normal handling (citing
Jurado v. W. Gear Works, 131 N.J. 375, 388 (1993)). Jurado addressed the misuse of a product. In that context, the Court provided the following guidance:

To the extent that misuse relates to the duty to design a safe product, 'a manufacturer has a duty to make sure that its manufactured products placed into the stream of commerce are suitably safe when properly used for their intended or reasonably foreseeable purposes.' When someone is injured while using a product for an unforeseeable purpose or in an unforeseeable manner, the misuse sheds no light on whether the product is defective, because a manufacturer is not under a duty to protect against unforeseeable misuses. A manufacturer, however, has a duty to prevent an injury caused by the foreseeable misuse of its product.

[Id. 387-88 (internal citations omitted).]

In this case, counsel for plaintiff argued "the defect is essentially twofold, [1] the spring should not be removable . . ., and [2] once the spring is removed, the gun shouldn't be fireable at all. That's the defect." Plaintiff's expert was obviously prepared to testify that, upon such premises, a defect existed. Plaintiff, of course, has the burden of showing that there was no misuse or that any misuse was objectively foreseeable. Id. at 386.

Viewing the facts in the light most favorable to plaintiff, the jury could accept plaintiff's allegation that the dual triggering mechanism failed to prevent unintentional discharge of the nail into Christian's chest as he maneuvered the nail gun after receiving it from a co-worker. Mindful of the indulgence to be accorded an opponent of a motion for summary judgment, we conclude that a jury should have been permitted to consider the issues concerning the removal of the spring and whether it occurred before the incident; the foreseeability of the alleged alteration; the risk of harm as a result of such altercation; whether there was a misuse of the product; and the availability of an alternative design to avoid the risk.

II

Plaintiff also contends that the employer's conduct negated its immunity pursuant to the exclusive remedy provisions of the Workers' Compensation Act and that its liability, if any, was an issue to be decided by a jury.

Generally, the workers' compensation system will bar an employee from pursuing common law remedies against an employer in exchange for the entitlement to prompt and full coverage for work-related injuries. See, e.g., Laidlow v. Hariton Machinery Co., Inc., 170 N.J. 602, 605 (2002). However, that system is not without exception. When a worker sustains injuries that are the result of an employer's "intentional wrong," the exclusive remedy provision is void and the employee may seek benefits under both the workers' compensation system and also pursue relief in common-law remedies. Charles Beseler Co. v. O'Gorman & Young, Inc., 188 N.J. 542, 546 (2006).

The exclusive remedy provision of the Workers' Compensation Act reads in relevant part:

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 (emphasis added).]

Our case law has made it explicitly clear that the exclusivity bar in the workers' compensation system is very difficult to overcome. See, e.g., Kibler v. Roxbury Bd. of Educ., 392 N.J. Super. 45, 52-53 (App. Div. 2007).

The Court has cautioned that: "the mere knowledge and appreciation of a risk -- something short of substantial certainty -- is not intent." Millison v. E.I. Du Pont de Nemours & Co., 101 N.J. 161, 177 (1985). An employer who acts knowing that its act creates a substantial risk of harm to its employees may be characterized as negligent, reckless, or wanton, but this act alone may not necessarily rise to the level of an "intentional wrong." Ibid. Under Millison, an employer will not be afforded the immunity of N.J.S.A. 34:15-8 when two conditions are met: (1) the employer knows that its actions are "substantially certain" to result in employee injury or fatality, and (2) the circumstances surrounding the injury of the worker are "more than a fact of life of industrial employment and plainly beyond anything the Legislature intended the Workers' Compensation Act to immunize." Laidlow, supra, 170 N.J. at 617; accord Mull v. Zeta Consumer Prods., 176 N.J. 385, 391 (2003).

Thus, in ruling on an employer's summary judgment motion in an intentional tort claim, the trial judge must make two distinct 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.

[Laidlow, supra, 170 N.J. at 623 (emphasis added).]

Determining whether the second prong of Millison is met is purely a judicial function. Ibid. Therefore, "if the substantial certainty standard presents a jury question" and if the court concludes in the affirmative 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." Ibid.; see also Mabee v. Borden, Inc., 316 N.J. Super. 218, 233 (App. Div. 1998) (holding that where employee's allegations are proved, the context prong of Millison is satisfied).

Here, the trial court determined that plaintiff had not satisfied the burden of proof required under Millison and Laidlow. We agree. Plaintiff did not and cannot establish that American Style is responsible for removing the safety springs from the nailers, and thus, cannot satisfy the "context" prong by proving the equipment alterations were made by the employer with substantial certainty an employee would eventually be injured. See Laidlow, supra, 170 N.J. at 619. It is plausible that an employee removed the springs on the nailers to make them less burdensome to operate, and according to the report of plaintiff's proposed engineering expert, it is also possible the springs became dislodged inadvertently from normal use on the construction site.

Significantly, in the cases cited by plaintiff in his appellate brief, the defendant-employers, in addition to disabling safety devices, also had histories of prior accidents or violations of OSHA regulations. See, e.g., Crippen, supra, 176 N.J. 397 (allowing wrongful death suit where employer failed to correct a number of serious OSHA violations, and correct unsafe working conditions concerning workers' access to a gravel hopper via an unsecured wooden plank); Mull v. Zeta Consumer Products, 176 N.J. 385 (2003) (allowing employee to sue employer that removed safety mechanisms, made other dangerous alterations to a workplace machine, had experienced a prior accident with the machine, and had prior unabated OSHA violations); Millison, supra, 101 N.J. 161 (applying intentional-wrong exception where proofs circumstantially showed that employer had deliberately concealed knowledge of its employee's work-related disease arising from exposure to asbestos); but see Tomeo v. Thomas Whitesell Constr. Co., 176 N.J. 366 (2003) (holding employer's deactivation of safety lever on snow blower did not meet the "intentional wrong" exception where the snow blower was not an instrument of the employee's job and the blower had warning labels adequately informing the employee not to put his hand in the chute while its propellers were operating).

We understand that "the absence of a prior accident does not preclude a finding of an intentional wrong." Crippen, supra, 176 N.J. at 408 (citing to Laidlow, supra, 170 N.J. at 622-23). "Reports of prior accidents and close-calls, are merely evidence that may be considered in the substantial certainty analysis." Ibid. To hold otherwise would contravene our Supreme Court's instruction:

Simply because people are not injured, maimed or killed every time they encounter a device or procedure is not solely determinative of the question of whether that procedure or device is dangerous and unsafe. [To accept otherwise] would be tantamount to giving every employer one free injury for every decision, procedure or device it decided to use, regardless of the knowledge or substantial certainty of the danger that the employer's decision entailed . . . [i]t is not incumbent that a person be burned before one knows not to play with fire.

[Laidlow, supra, 170 N.J. at 622 (internal citations omitted).]

Nor is it a "per se rule" that an employer has committed an intentional wrong whenever an OSHA violation has occurred. Similarly, reports of prior or concurring regulatory violations are merely evidence to be considered in the totality of the circumstances analysis. Ibid. Still, the record discloses that plaintiff proffers no direct evidence that the employer acted intentionally in removing the safety springs from the nailers, much less with substantial certainty that injury was the result. There are no indications of regulatory violations, no evidence of past incidents, or near-misses, or prior employee complaints. For these reasons, plaintiff's claim against defendant-employer was properly dismissed on a summary judgment motion.

 
Reversed as to the manufacturer Hitachi Koki, U.S.A.; affirmed as to the employer American Style Construction, Inc.

(continued)

(continued)

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A-1985-07T1

March 3, 2009