JERRY M. MANN v. HEIL PACKER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1293-08T21293-08T2

JERRY M. MANN, Individually and

as Administrator Ad Prosequendum

of the ESTATE OF MICHAEL G.

LaPOINT, Deceased, and on

behalf of the heirs of MICHAEL

G. LaPOINT and REBECCA LaPOINT,

his wife,

Plaintiffs-Appellants,

v.

HEIL PACKER, VOLVO WHITE TRUCK

CORPORATION,

Defendants,

and

EDISON TOWNSHIP,

Defendant-Respondent.

______________________________________

 

Argued October 1, 2009 - Decided

Before Judges Fisher, Sapp-Peterson and Espinosa.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-5193-03.

Adam L. Rothenberg argued the cause for appellants (Levinson Axelrod, P.A., attorneys; Mr. Rothenberg, on the brief).

Dawn Attwood argued the cause for respondent (Decotiis, Fitzpatrick, Cole & Wisler, L.L.P., attorneys; Ms. Attwood and Thomas A. Abbate, on the brief).

PER CURIAM

In this appeal, we are again asked to interpret the intentional wrong exception under the Workers Compensation Act, N.J.S.A. 34:15-1 to -128 (Act). Plaintiffs, Jerry Mann, individually and on behalf of the Estate of Michael G. LaPoint and his heirs, and Rebecca LaPoint, decedent's wife, appeal from the grant of summary judgment dismissing claims against LaPoint's employer, defendant Edison Township (Township), arising out of fatal injuries LaPoint sustained when he fell off the back of a garbage truck that then ran over him while in reverse mode. On appeal, plaintiffs contend the trial court erred in dismissing the complaint because the intentional wrong exception under the Act applied to LaPoint's claims. Additionally, plaintiffs contend the trial court improperly resolved issues of fact in reaching its decision. We affirm.

The facts viewed most favorably to plaintiffs disclose that on April 15, 2002, LaPoint, who had been an employee of the Township for at least fifteen years, was part of a three-person crew manning a Township sanitation truck. LaPoint worked as a garbage picker, collecting and depositing refuse into the rear hopper of the truck.

The truck on which LaPoint was working at the time of his fatal accident was a Formula 5000 (F5000) manufactured by Heil Packer (Heil). The truck was delivered to the Township in 1993. The bid specifications for the truck included a requirement that steps installed on the tailgate "must conform to ANSI standards." As delivered, the truck was equipped with steps mounted to the side of the truck that were made out of Grip Strut, a self-cleaning and slip-resistant material. The rear sides of the truck also bore warning decals stating: "CAUTION: Do not use riding step when vehicle is exceeding 10 MPH, operating in reverse or traveling in excess of 2/10 miles."

Although the truck, as originally designed, had an L-shaped, wraparound step that extended several inches into the rear, the truck delivered to the Township did not have the L-shaped step because it was equipped with a container-lifting mechanism. After the Township accepted delivery of the truck, it had one of its employees retrofit the truck by installing a platform step across its rear. Retrofitting sanitation trucks with a rear platform step had been a practice of the Township's Public Works Department since sometime in the 1980s. At the time of LaPoint's fatal accident, twelve of the Township's thirteen sanitation trucks had been modified with a rear platform step and grab bar. The Township's welder testified during his deposition that he installed a platform step across the rear of their sanitation trucks at the direction of his supervisor, who reported to the Public Works Director, and he received a work order to perform the modifications. Township administration officials, however, claimed they were unaware of this modification prior to LaPoint's fatal accident.

Plaintiffs' expert, Donald T. Aull, prepared a report in which he opined that defendant's modification of its sanitation trucks to install the "additional step and associated grab handles clearly provided a substantial hazard that was certain to result in accidents, injury or death." He noted that a worker riding on the rear step was not visible to the truck's driver and therefore at risk of being run over if the truck was being operated in reverse before the driver became aware that a worker had fallen off.

During his deposition, Jerald Zanzig, who worked for Heil for twenty-seven years before forming his own consulting firm and who continued to consult for Heil, testified that he participated in the design of the steps for the F5000 model. He described the steps on that model as a "wrap-around design. That is they had somewhat [of an] L-shape, if you will, as viewed from the top and were principally to the sides of the tailgate of the unit, but additionally it wrapped around to a small extent in the rear of the unit." He acknowledged that in a few instances in the past, Heil supplied vehicles with a rear platform, but as of the "late '70s Heil refused to supply such a rear platform on any of its rear loaders from that point on." When asked why Heil no longer manufactured trucks with a rear platform, he stated:

Well, the general answer is that a rear platform places the workers in what could be a very hazardous position with respect to the pinch points of the packing mechanism. The pinch point that occurs between the packer panel of the unit and the hopper of the unit is in effect right there. When you put such a rear platform in that position . . . it poses, you know, a potential threat of pinch point injuries, especially if the packing mechanism is able to be cycled while the vehicle is moving[,] which generally is the practice of many of the users. Secondly, Heil was involved in such [a] pinch point injury and litigation associated with such an episode and decided that they would no longer supply such a rear platform because of that.

Zanzig also testified that ANSI eliminated rear platform steps on sanitation trucks from its standards in 1999 principally because of

backup accidents that had continued to occur regardless of any requirements in the ANSI standards for loaders not riding while the vehicle was backing, requirements for the employers to train and institute work rules that eliminated the practice. It was still being done. And, unfortunately, anyone riding to the rear of a vehicle when it was backing who happened to fall off or may[]be even step off intentionally often resulted in that worker being run over as the vehicle continued to back.

A number of LaPoint's co-workers were deposed. Anthony Ruvolo testified that he was hurt on two occasions while working on a sanitation truck retrofitted with a rear platform step. The first injury occurred when he banged his left knee as the truck traveled over a pothole. He sustained the second injury while the truck was moving forward and stopped short. In both instances, his left foot was on the retrofitted rear step. Ruvolo indicated that following his first injury in 1993, his co-worker, Frank Mantuano told their superiors that the steps were illegal and that he did not want them on the truck. Mantuano, in his deposition, acknowledged that he believed the retrofitted platform step was illegal but denied reporting his beliefs to his supervisors. Rather, he testified that he and his co-workers "all used to talk about it at work because you can't alter a vehicle." Neither Ruvolo nor any of LaPoint's other co-workers who were deposed recalled any accident involving a worker falling from the rear of the truck. Nor did discovery reveal any other mishaps related to the retrofitted rear platform steps.

Prior to LaPoint's fatal accident, the Township had never been cited for violating any laws or regulations related to its retrofitted trucks, nor does the record reveal that any regulatory or law enforcement agency advised the Township that the rear platform step was unsafe, despite random inspections of the trucks over the years.

In granting summary judgment to the Township, the trial court applied the two-pronged analysis as first set forth by the Supreme Court in Millison v. E.I. DuPont de Nemours & Co., 101 N.J. 161 (1985):

With regard to the "conduct" prong, plaintiff argues that defendant's rear platform step violated an ANSI standard by not being made out of a slip resistant self-cleaning material. However, the standard that plaintiff speaks of has not been adopted by PEOSHA[] and therefore does not carry the force of law. In cases where the workers' compensation bar was pierced, courts have cited repeated or knowing violations of OSHA[] regulations. This court is not aware of any case law indicating that non-compliance with a non-binding advisory standard is sufficient to make a showing of intentional wrong. See Metromedia, Inc. v. [Dir., Div.] of Taxation, 97 N.J. 313 (1984) (principles of notice and due process require that rules of general applicability be promulgated through formal rulemaking).

Even assuming that the Township management knew of the installation of the rear steps, this is still not sufficient to overcome the Workers' Compensation bar. The conduct prong requires proof that the Township knew that the rear steps were substantially certain to cause severe injury or death. Thus, even if plaintiffs were to provide evidence that the Township knew of the existence of the steps in question, they still have not met their burden of showing an appreciation of the virtually certain risk of serious injury or death to the decedent.

According to the facts, the proofs show that one of the defendant's garbage collectors had been injured in two prior incidents involving the use of the rear platform step prior to the fatal accident. These incidents had been documented and reported [to] the defendant's supervisor. These injuries come from the decedent's co-worker who states that he banged his knee on the riding step twice-once when the truck hit a pothole, and once when the truck stopped short. These injuries do not constitute notice of a substantial certainty of a grievous injury. Thus, the record is void of accidents with regard to employees falling off the rear step. Moreover, there is no record that the Township had ever been put on notice by any regulatory or law enforcement authority that the rear steps were unsafe or contrary to established safety standards.

. . . .

. . . According to the facts of our case, the garbage truck in question contained warning labels on the side of the truck that warned against riding on the truck while operating in reverse. Accordingly, this court finds that it can be expected that the decedent should have appreciated the risk in riding on the truck in reverse. Moreover, the sole eyewitness to the accident, Gregory Velez, provided a sworn statement to the Edison Police Department that indicated that the decedent was in the process of attempting to urinate into the rear hopper of the truck while the truck was in reverse. Thus, this court finds that decedent was clearly "engaging in self-damaging conduct" that the defendant in no way "encouraged such conduct or concealed its danger."

The present appeal followed.

The essence of plaintiffs' argument is that: (1) the Township's retrofitting of its sanitation trucks was contrary to ANSI standards; (2) there had been prior reported injuries; (3) workers had objected to the retrofitted trucks, claiming they were illegal; and (4) the Township received warnings from the State about sanitation truck injuries. Plaintiffs urge that these are facts that present a jury question as to whether the Township's conduct constituted an "intentional wrong" under Millison. We disagree.

Our review of a trial court's grant of summary judgment is de novo and we employ the same legal standard as that of the trial court under Rule 4:46-2(c). Antheunisse v. Tiffany & Co., 229 N.J. Super. 399, 402 (App. Div. 1988), certif. denied, 115 N.J. 59 (1989). The grant of summary judgment is appropriate where the moving party establishes the absence of any genuine issue of material fact. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 539-40 (1995). We accept plaintiff's version of defendant's conduct as true and give plaintiff the benefit of all reasonable inferences that may be derived from the facts. Baliko v. Stecker, 275 N.J. Super. 182, 186 (App. Div. 1994). If there is no genuinely disputed issue of material fact, we decide whether the trial court's ruling on the law was correct, Prudential Prop. & Cas. Ins. v. Boylan, 307 N.J. Super. 162, 167-68 (App. Div.), certif. denied, 154 N.J. 608 (1998), mindful that "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty L.P. v. Twp. of Manalapan, 140 N.J. 366, 378 (1995).

N.J.S.A. 34:15-8 provides in pertinent part that

[i]f an injury or death is compensable under this [Act], 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.

The Act represents a "trade off" that results in the payment of automatic benefits to employees for work-related injuries in exchange for their relinquishment of their right to pursue common-law remedies against their employer except in those instances where the employer's conduct constitutes an "intentional wrong" under the Act. Maybee v. Borden, Inc., 316 N.J. Super. 218, 226-27 (App. Div. 1998) (citing Millison, supra, 101 N.J. at 177). As such, "the 'intentional wrong' exception under N.J.S.A. 34:15-8 must be interpreted very narrowly in order to further these underlying quid pro quo goals, so that as many work-related disability claims as possible be processed exclusively within the workers' compensation system." Ibid. (citing Millison, supra, 101 N.J. at 177).

In Millison, the Court was confronted with the task of identifying "what categories of employer conduct will be sufficiently flagrant so as to constitute an 'intentional wrong,' thereby entitling a plaintiff to avoid the 'exclusivity' bar of N.J.S.A. 34:15-8[.]" Millison, supra, 101 N.J. at 176. There, the plaintiffs sought to pursue their common law claims against their employer for knowingly and deliberately exposing them to a hazardous work environment and then fraudulently concealing from them the existence of occupational diseases. The Court announced the standard by which to measure whether an employer's conduct rose to the level of an "intentional wrong" of the type the Legislature contemplated should operate as an exception to the exclusivity provisions under the Act. Id. at 177-80. Before doing so, the Court stated that "we are careful to keep an eye fixed on the obvious: the system of workers' compensation confronts head-on the unpleasant, even harsh, reality -- but a reality nevertheless -- that industry knowingly exposes workers to the risks of injury and disease." Id. at 177.

The Court cited approvingly the "intent" analysis of Dean Prosser and adopted a "substantial certainty" test:

[T]he mere knowledge and appreciation of a risk -- something short of substantial certainty -- is not intent. The defendant who acts in the belief or consciousness that the act is causing an appreciable risk of harm to another may be negligent, and if the risk is great the conduct may be characterized as reckless or wanton, but it is not an intentional wrong.

[Ibid. (quoting W. Prosser & W. Keeton, The Law of Torts, 8 at 36 (5th ed. 1984).]

The Court equated "substantial certainty" to virtual certainty and requires trial courts to determine whether the employer's conduct evidenced a virtual certainty of death or injury. Id. at 178. Moreover, in addition to applying Dean Prosser's "substantial certainty" test, the Court directed trial courts to make a second inquiry. This second inquiry requires trial courts to determine whether the context in which the employer's conduct occurred leading to an employee's injury or death may "fairly be viewed as a fact of life of industrial employment, or is it rather plainly beyond anything the [L]egislature could have contemplated as entitling the employee to recover only under the [Act]?" Id. at 179.

Applying its newly adopted standard to the underlying case, the Court found that the employer knowingly exposed the plaintiffs to asbestos and therefore deliberately took risks with the employees' health. Ibid. Nonetheless, the Court found that in the face of the Legislature's awareness of occupational diseases as a fact of industrial life, it was constrained to conclude that the plaintiffs' initial injuries sustained from exposure to asbestos "must be considered the type of hazard of employment that the [L]egislature anticipated would be compensable under the terms of the [Act] and not actionable in an additional civil suit." Ibid.

It reached a different conclusion, however, as to the plaintiffs' claim that defendants fraudulently concealed from the plaintiffs the fact that they were suffering from asbestos-related diseases in order to keep the plaintiffs from leaving the workforce, including having company physicians tell employees, following physical examinations, that their health was fine while knowing otherwise. The Court reasoned:

There is a difference between, on the one hand, tolerating in the workplace conditions that will result in a certain number of injuries or illnesses, and, on the other, actively misleading the employees who have already fallen victim to those risks of the workplace. An employer's fraudulent concealment of diseases already developed is not one of the risks an employee should have to assume. Such intentionally-deceitful action goes beyond the bargain struck by the [Act].

[Id. at 182.]

The Court reaffirmed its holding in Millison seventeen years later in Laidlow v. Hariton Machinery Co., Inc., 170 N.J. 602 (2002), where it also observed that proving both the conduct and context prongs may involve consideration of the same facts and circumstances with the jury ordinarily determining the conduct prong, and with the court, as a question of law, resolving the context prong. Id. at 623. One year later, in what may be characterized as the "intentional wrong" trilogy of cases, Tomeo v. Thomas Whitesell Constr. Co., Inc., 176 N.J. 366 (2003), Mull v. Zeta Consumer Prods., 176 N.J. 385 (2003), and Crippen v. Cent. Jersey Concrete Pipe Co., 176 N.J. 397 (2003), the Court had the occasion to apply the Millison conduct and context analysis in three very different fact patterns.

Tomeo involved an allegation that the employer deactivated a safety lever on a snow blower and then placed electrical tape over it to prevent its activation. The plaintiff sustained severe injuries when he inserted his hand into the blower's chute. Tomeo, supra, 176 N.J. at 376. The Court, in affirming our reversal of the trial court's denial of summary judgment in favor of the employer, concluded that the conduct prong had not been satisfied. Ibid. It reasoned, at most, the plaintiff proved that the employer's conduct was grossly negligent, but fell short of an intentional wrong under the Millison "substantial certainty" test. Ibid. Likewise, the Court found that the proofs were deficient as to the context prong. Id. at 377. The Court referenced the presumption that a proper warning would be heeded and that the "plaintiff knew or should have known that the propellers were operating when he inserted his hand into the chute." Ibid. The Court noted further that "[o]ur law does not impose a duty on an employer to prevent an employee from engaging in self-damaging conduct absent a showing that the employer encouraged such conduct or concealed its danger." Ibid.

In Mull, the employer deliberately altered the original design of a winder machine and failed to warn employees of the machine's sudden start-up propensity or that the machine's safety interlock switches had been removed. Mull, supra, 176 N.J. at 388-89. The plaintiff's hand was pulled into the winder and she sustained serious injuries. Id. at 387-88. Several months before her accident, OSHA had cited the employer for its failure to provide employees with lockout/tagout procedures in connection with the winder. Id. at 388. Additionally, discovery revealed that there had been a similar incident involving an employee whose hand was pulled into the winder prior to the plaintiff's accident and that a co-worker had specifically reported his concern about the winder's sudden start-up capability to management but received no response. Ibid. The Court agreed with the trial court that if the plaintiff proved these allegations, a jury could reasonably find that the employer's conduct created a "substantial certainty" of injury under Millison. Id. at 392. Further, the Court looked to these same contentions in concluding that those facts would not be viewed as "'simple facts of industrial life.'" Id. at 393 (quoting Laidlow, supra, 170 N.J. at 622).

Finally, in Crippen, the plaintiff was killed when he fell into a sand hopper and suffocated. The employer had previously been cited by OSHA for violations which, if corrected, would have addressed the work area where the plaintiff walked approximately ten times per day to activate a lever and regulate the inflow of sand or gravel into the hopper. Crippen, supra, 176 N.J. at 410. The Court found a jury could reasonably conclude that the "defendant had knowledge that its deliberate failure to cure the OSHA violations would result in a substantial certainty of injury or death to one of its employees" and that its deliberate action to make OSHA believe that the violations had been abated satisfied the Millison context prong. Id. at 409.

What emerges from our review of these cases is that the mere act of an employer in exposing a worker to the risk of injury or death does not establish a per se intentional wrong. See Laidlow, supra, 170 N.J. at 622 (noting that it is not per se an intentional wrong to "remove[] a guard or similar safety device from equipment or machinery"). See also Mabee, supra, 316 N.J. Super. at 230 (rejecting the plaintiff's argument that alteration or removal of a safety device from a workplace machine presents a per se prima facie case of "intentional wrong.") Applying that reasoning here, the mere act of retrofitting sanitation trucks with a rear platform step, even if part of a longstanding practice, does not establish a per se intentional wrong on the part of the Township. There must be a virtual certainty that a resulting injury or death will occur as a result of the Township's conduct. The record here does not present a genuine issue that such a virtual certainty existed.

Although there were two reported accidents involving the Township's retrofitted sanitation trucks, those were not fall-down accidents, nor accidents caused by the truck traveling in reverse. There was no evidence in the record that the knee injury Ruvolo sustained was causally related to the fact that Ruvolo was partially standing on the rear platform step. Further, assuming the Township officials were aware of the post-delivery modifications to its sanitation trucks and that the modifications were contrary to ANSI standards, it is undisputed that those standards were advisory. Therefore, the trial court properly found that plaintiffs failed to establish a prima facie case of an intentional wrong under the first Millison prong. Millison, supra, 101 N.J. at 178.

We next address the context prong to determine "whether the fatal workplace injury suffered by [LaPoint] was 'a fact of life of industrial employment' or 'plainly beyond anything the Legislature could have contemplated as entitling the employee to recover only' under the Workers' Compensation Act[,]" id. at 179. When viewed in a light most favorable to plaintiffs, we find there was no evidence that the Township modified its sanitation trucks after delivery to enhance profit or production. Laidlow, supra, 170 N.J. at 622. There is also no evidence that the employer required workers to use the rear platform step and did so aware of prior fall-down injuries related to its use. Ibid. Additionally, prior to LaPoint's fatal accident, there had been no notice of violations related to the retrofitted sanitation trucks. Mull, supra, 176 N.J. at 388. Also, there was no evidence that the Township tried to conceal from its employees and regulatory or law enforcement officials the fact that it had retrofitted its sanitation trucks with a rear platform step. Millison, supra, 101 N.J. at 182.

Moreover, there is no dispute that the truck was backing up at the time of LaPoint's fall. It is also undisputed that warning decals were affixed to the side of the trucks, cautioning workers not to ride on the trucks when the trucks are in reverse. It is equally undisputed that the Township displayed a brochure at the workplace entitled, "Don't Get Hurt Working Around Sanitation Trucks," in which workers are instructed not to "stand on the riding step if the truck is moving backwards." Given these undisputed facts, we are satisfied the trial court properly concluded, "it can be expected that [LaPoint] should have appreciated the risk in riding on the truck in reverse." See Tomeo, supra, at 377.

Finally, plaintiffs dispute the statement by LaPoint's now deceased co-worker, Gregory Velez, that LaPoint was getting ready to urinate when he fell off the truck. Velez was the only eyewitness to the accident and he provided an unsworn statement to police within hours after the accident. Plaintiffs urge that the statement is inadmissible hearsay which the court should not have considered. We need not address this contention. In our view, the undisputed fact that LaPoint, contrary to cautionary warnings affixed to the side of the truck and displayed in the workplace, was riding on the rear of the truck while it was traveling in reverse mode, is self-damaging conduct the Township neither required nor encouraged. Hence, whether LaPoint was preparing to urinate is not a disputed fact of material consequence.

In short, we are satisfied that the trial court properly found that plaintiffs failed to raise genuinely disputed issues of fact sufficient to establish a prima facie showing that the Township's conduct in retrofitting its sanitation trucks evidenced a "virtual certainty" of death or injury. Millison, supra, 101 N.J. at 178. Nor did the circumstances of LaPoint's death support a finding that his fatal injury was "more than a fact of life of industrial employment . . . and plainly beyond anything the Legislature intended the [Act] to immunize." Laidlow, supra, 170 N.J. at 617.

Affirmed.

Please note that the record reflects decedent's name being spelled as LaPoint and LaPointe.

The grant of summary judgment to Heil Packer and Volvo White Truck Corporation is not being appealed.

Rebecca LaPoint has made a claim for loss of consortium.

American National Standards Institute.

Public Employees Occupational Safety and Health Act, N.J.S.A. 34:6A-25 to -50.

U.S. Department of Labor, Occupational Safety and Health Administration.

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A-1293-08T2

January 13, 2010