JOSEPH CALAVANO v. FEDERAL PLASTICS CORPORATION

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0353-09T10353-09T1

JOSEPH CALAVANO,

Plaintiff-Appellant,

vs.

FEDERAL PLASTICS CORPORATION,

Defendant-Respondent.

__________________________________

 

Argued: April 14, 2010 - Decided:

Before Judges Cuff and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-492-07.

Charles A. Cerussi argued the cause for appellant (Cerussi & Gunn, P.C., attorneys; Mr. Cerussi, of counsel and on the briefs; Joy-Michele J. Tomczak, on the briefs).

George J. Kenny argued the cause for respondent (Connell, Foley LLP, attorneys; Mr. Kenny, of counsel and on the brief).

PER CURIAM

Plaintiff lost a portion of his left arm in a workplace accident. Alleging intentional wrongdoing, plaintiff filed a complaint against his employer for compensatory and punitive damages. Finding that plaintiff failed to demonstrate that the workplace accident met the intentional wrong standard to allow an employee to seek damages from his employer, Judge Kathryn Brock granted summary judgment in favor of the employer. Plaintiff appeals. We affirm.

N.J.S.A. 34:15-8 normally bars a civil action by an employee against an employer for a workplace injury, unless the employee can demonstrate that the injury is the result of intentional wrongdoing by the employer. What conduct constitutes intentional wrongdoing by an employer has received considerable attention in the last eight years.

In Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 161 (1985), the Court recognized that the intentional wrong exception to the statutory exclusive remedy provision must be interpreted strictly to prevent the exception from consuming the exclusivity design of the Workers' Compensation Act. Id. at 177. Therefore, the Court was required to address what level of risk and exposure to danger is "so egregious as to constitute an 'intentional wrong.'" Ibid. The Court concluded that mere knowledge and appreciation of a risk of harm to an employee cannot be considered intent. Ibid. Similarly, the Court rejected a subjective intent to harm standard. Id. at 177-78. Rather, the Court adopted a "substantial certainty" standard. Id. at 178. In addition, the Court held that 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 178-79.

In Laidlow v. Hariton Machinery Co., 170 N.J. 602 (2002), the Court undertook another examination of the intentional wrong exception in the context of an industrial accident where the safety device had been disengaged for reasons of speed and efficiency. The Court reviewed its decision in Millison and characterized the Millison rule as establishing a two-prong test which examines not only the conduct of the employer but also the context of the event. Justice Long wrote:

In addition to adopting Prosser's "substantial certainty" test relative to conduct, in Millison we added a crucial second prong to the test:

. . . .

By addition of the context prong, Millison required courts to assess not only whether the employer acted with knowledge that injury was substantially certain to occur, but also whether the injury and the circumstances surrounding it were part and parcel of everyday industrial life or plainly outside the legislative grant of immunity. In other words, under Millison, if only the conduct prong is satisfied, the employer's action will not constitute an intentional wrong within the meaning of N.J.S.A. 34:15-8. That standard will be met only if both prongs of Millison are proved.

[Laidlow, supra, 170 N.J. at 614-15.]

After determining that the facts in Laidlow, which included the disabling of a safety guard and deception of the Occupational Safety & Health Administration (OSHA), created a jury question on the conduct prong of the Millison test and that the context prong was met if Laidlow's allegations were proved at trial, id. at 622, the Court provided an analytical guide for judges who must consider and decide summary judgment motions based on the Workers' Compensation exclusivity provision. 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.]

Recently, the Court has returned to the issue of an employer's common law tort immunity in three cases that apply and explain the Laidlow rule: Tomeo v. Thomas Whitesell Construction Co., 176 N.J. 366 (2003); Mull v. Zeta Consumer Products, 176 N.J. 385 (2003); and Crippen v. Central Jersey Concrete Pipe Co., 176 N.J. 397 (2003).

In Tomeo, the plaintiff was injured in the course of using a snow blower at work. 176 N.J. at 367. The plaintiff alleged that his employer's conduct satisfied the intentional wrong standard to permit a common law action against his employer because the employer had deactivated a safety switch on the snow blower. Ibid. In holding that summary judgment should have been granted in favor of the employer, the Court noted that the piece of equipment that caused the plaintiff's injury was a consumer product replete with warning labels. Id. at 375. Moreover, the Court held that disregard of the known, warned danger caused the injury, not the disabling of the safety device. Id. at 376. In addition, the employer's conduct could be characterized as no more than gross negligence that still fell short of the substantial certainty of injury test. Ibid. Finally, the context prong of the analysis did not allow the matter to proceed because the plaintiff knew of the obvious danger, had express warnings of the danger, and proceeded to ignore the warnings and the obvious danger. Id. at 377.

By contrast, in Mull, the Court held that the employer's conduct in disengaging critical safety devices on a piece of industrial machinery precluded summary judgment in favor of the employer. 176 N.J. at 392-93. There, the employee turned off the power to the machine on which she worked to disengage lodged plastic. Id. at 387-88. Nevertheless, the machine began to operate and pulled the plaintiff's hand into the winder causing serious injuries. Id. at 388. OSHA had cited the employer only several months earlier for its failure to provide its employees with a lockout/tagout procedure to prevent the machinery from re-starting while maintenance was being performed on the machinery. Ibid. The employer had not implemented the recommended procedure and another incident had occurred on the same machine prior to the plaintiff's accident. Ibid.

The plaintiff supported her claim with an expert report citing the obvious dangers associated with operation of the machine, and complaints to management from other employees that had been ignored. Id. at 388-89. Noting that the facts in Mull were similar to those in Laidlow, the Court held that the disengagement by the employer of critical safety devices, the employer's knowledge of the dangerous consequences of operating the machinery without the safety devices, and the prior OSHA citations "made harm to [the employer's] employees predictable," and, if proved, a reasonable jury could find that the employer's conduct made injury a "substantial certainty." Id. at 392. Moreover, the Court held that these facts satisfied the context prong because "[t]he Legislature would not have considered the removal of the winder's safety devices, coupled with the employer's alleged knowledge of the machine's dangerous condition due to prior accidents and employee complaints, in addition to OSHA's prior violation notices, 'to constitute simple facts of industrial life.'" Id. at 392-93 (quoting Laidlow, supra, 170 N.J. at 622).

Finally, in Crippen, the Court reversed a summary judgment in favor of the employer in circumstances where the employer intentionally deceived OSHA, deliberately failed to comply with directives by OSHA to address a dangerous condition, implemented an ineffectual and limited safety program, and had notice not only of the dangerous conditions but also of the virtual certainty that a person could die in the confined spaces cited by OSHA. 176 N.J. at 409-10. Furthermore, the Court held that an employer who maintained known safety hazards and "deliberately deceived OSHA into believing that the violations had been corrected" was not ordinary industrial life conduct that the Legislature contemplated would fall within the sweep of the Workers' Compensation exclusive remedy. Id. at 411.

It is in the context of these legal principles that we examine the facts in the light most favorable to plaintiff, the non-moving party, as we must when we review an order granting summary judgment. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).

On February 20, 2006, plaintiff was severely injured while cleaning a vertical blender at defendant's facility. Plaintiff had been employed by defendant since 1984 and had operated the vertical blender for approximately sixteen years.

On the day of the accident, plaintiff was cleaning the base of the blender with an air hose to force any residue into the bottom of a funnel. Before he commenced this work, plaintiff turned off the power. He testified that he had been taught never to put his hand in the machine without first shutting off the power.

After using the air hose, plaintiff noticed a piece of string hanging from the auger blade in the blender, opened a small door at the base of the machine, and inserted his hand through the opening to remove the string. As he did so, plaintiff heard the machine "click" on, causing the complete severance of the lower half of his left arm.

Plaintiff's supervisor, Juan Hernandez, was the only other person in the room when the accident occurred. Hernandez testified that he and plaintiff were cleaning out the blender together, but plaintiff continued cleaning the remnants at the bottom of the machine while Hernandez began another task with a forklift. Although Hernandez denied activating the energy switch, there is some evidence that he did so before ascertaining whether plaintiff had completed his task.

It is undisputed that neither vertical blender had an interlock safety device prior to plaintiff's accident. This device would have prevented the vertical blender to activate as long as the door allowing access to the machine was open. Such a device existed at the time of plaintiff's accident on other machinery such as the ribbon blender, extruders, and pelletizers. Interlock devices were installed on the two vertical blenders within days of plaintiff's accident.

Defendant is a family-owned business. Peter T. Triano has served as president since 1980; his brother Michael Triano has served as vice president since 1998. On the morning following plaintiff's accident, Michael Triano contacted defendant's insurance company to report the accident. He testified that he did not contact OSHA because he believed the insurance company would do so. Peter Triano testified that an OSHA investigator came to defendant's site within a month of the accident. By letter dated August 18, 2006, OSHA cited defendant for a "serious" violation based upon inspections the agency conducted from June 30, 2006, to July 21, 2006. The violation cited 29 C.F.R. 1910.212(a)(1), and specifically stated the "[b]lender was not provided with adequate guarding/device to prevent an[] employee from being caught by the rotating auger." The violation also noted that the interlock device had already been installed on the blender.

Four employees of defendant have experienced workplace amputation injuries between 1980 to 2006. The first incident occurred on June 18, 1980, when Alexander Plummer severed his left index and ring finger while operating the vertical blender. According to defendant's first report of the accident to the Division of Workers' Compensation, Plummer was "feeding the material into the [vertical blender]." On November 13, 1986, Kenneth Devine lost the end of the thumb, index finger, middle finger and ring finger of his left hand while cleaning the pelletizer with an air hose. According to defendant's first report, the "hose got caught [and] pulled [Devine's] hand under blades." On November 2, 1998, Robert Van Luvanee lost his right pinkie and ring finger when he put his hand in the discharge chute as he attempted to unclog the pelletizer. After the second pelletizer accident, safety bars and interlock devices were installed on all of the pelletizers. Finally, plaintiff's accident occurred on February 20, 2006.

There is no evidence in this record that any safety device was disabled or that defendant attempted to deceive OSHA. The record reveals that as soon as an accident occurred, defendant reacted promptly to install safety devices. The record also demonstrates that plaintiff and his co-worker Hernandez knew the danger posed by inserting a hand through the lower access door without turning off the power and that plaintiff had turned off the power before he started to clean the machine. The record also allows an inference that plaintiff was more conscious of safe workplace procedures than Hernandez.

There is no evidence in this record that management ever suggested that the machinery should not be cleaned or that the power should not be turned off during cleaning. Although the owners of the company did not have clear recollections of prior accidents, they made no effort to hide existing records of prior injuries. Judge Brock also found that neither plaintiff nor other employees had notified management about safety concerns due to the absence of an interlock device. Ultimately, Judge Brock held that a jury could find that defendant was negligent, but the facts did not allow a finding that injury was a substantial certainty.

In her opinion, Judge Brock reviewed the facts in the context of the governing law and concluded that plaintiff could not establish either the conduct or context prong of the Laidlow rule. As to the conduct prong, Judge Brock phrased the question as follows:

In this case, the court must determine based on the totality of the circumstances, whether a reasonable jury could find that the employer, defendant Federal Plastics, knew that its actions, in failing to provide a mechanism to prevent the auger blade in the vertical blender from becoming activated during manual cleanouts by either implementing and enforcing a lock out/tag out procedure, or installing an interlock device on the blender to cut off the power to the auger blade when the access door was opened, were substantially certain to result in injury or death to the employees who worked on that vertical blender, including the plaintiff, Joseph Calavano.

The judge ultimately concluded that a jury could find defendant negligent, but a reasonable jury could not find that defendant knew that there was a substantial certainty of injury. The judge stated:

While a reasonable jury could easily find that the defendant was negligent in its duty to provide for the safety of its employees in these respects, and that Peter Triano and Michael Triano, as well as the plant manager and the maintenance man, recognized that there was some risk that employees could be injured if they placed their hand into a vertical blender without first following the lockout/tagout procedures and without having an interlock device on the blender so that it could not start up again if the power was somehow restarted while the employee's arm was in the blender, this Court finds that a reasonable jury could not conclude that the defendant knew that there was a "substantial certainty" that the employees would be injured, and thus the plaintiff has failed to meet the "conduct" prong of the test for overcoming the statutory immunity of the defendant.

Addressing the context prong, Judge Brock held that the failure to install an interlock device before plaintiff's February 2006 accident was regrettable. Nevertheless, it is not the type of workplace conduct contemplated by the Legislature to lift the statutory bar of negligence actions against an employer.

This court must perform the same analytical task as the motion judge. In doing so, we reach the same conclusion, i.e., that plaintiff has not established a jury question on the first Laidlow prong, and the employer's conduct revealed by this record does not satisfy the context prong as a matter of law.

The record demonstrates that there were three prior amputation injuries over a period of twenty-six years. The only prior incident on the vertical blender, the very machine on which plaintiff was injured, was twenty-six years earlier. At the time of the earlier injury, the employee was performing an entirely different function at a different place in the machine. No amputation is minor, but the injury was much less severe than the catastrophic injury suffered by plaintiff.

To be sure, this record reveals a management team that reacts to workplace injuries rather than anticipates danger, and acts to prevent needless injuries. All of the interlock devices on the ribbon blender, the pelletizers, and the extruders, were placed on those machines after the fact of an injury. On the other hand, plaintiff and his co-worker Hernandez knew the danger posed by inserting a hand through the access door to clean the machine or to dislodge material when the machinery was operative. Both men acknowledged that the power must be off before cleaning the vertical blender could commence. Plaintiff stated that he would never place his hand through the access door unless the power to the machine was off. Hernandez admitted he knew the machine and the power should be off, but he would sometimes clean the machine without turning off the power.

Here, there is also no evidence that any employee or manager ever directed or even suggested that plaintiff should skip any safety steps because of production concerns as in Laidlow. There is no evidence that safety devices were disengaged or that OSHA or any other safety inspector was misled as in Laidlow and Crippen. The record does reveal a group of employees who had been employed by defendant for long periods, who knew how to operate and maintain the equipment, and who were familiar with the dangers posed by the equipment and the requested safety measures. The longevity and knowledge of the workforce may have contributed to the failure to produce regular safety reminders.

In summary, we agree with Judge Brock's assessment of this record. A jury could certainly find defendant negligent. The standard, however, is substantial certainty and this record does not allow a reasonable jury to reach that finding.

Assuming, however, that a reasonable jury could find that this injury to plaintiff was a substantial certainty, we hold as a matter of law that the conduct by the employer is not the type of conduct that the Legislature contemplated would expose an employer to a common law negligence action rather than the Workers' Compensation remedy. Here, an interlock device should have been installed prior to plaintiff's injury. Nevertheless, the record strongly indicates that plaintiff's injury was caused by the action of a co-worker who knew the safety procedures but carelessly ignored them. This is precisely the type of conduct which is addressed by the Workers' Compensation remedy as a matter of course on a daily basis.

We, therefore, affirm the August 11, 2009 order granting defendant's motion for summary judgment.

 
Affirmed.

(continued)

(continued)

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A-0353-09T1

August 18, 2010