LUCIANO MORALES v. CHRISTOPHER S. SCHNEIDER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

LUCIANO MORALES and

THERESA SORIANO,

Plaintiffs-Appellants,

v.

CHRISTOPHER S. SCHNEIDER and

GC SCHNEIDER CONSTRUCTION

COMPANY, INC.

Defendants-Respondents.

__________________________________

December 16, 2013

Argued December 2, 2013 Decided

Before Judges Harris and Kennedy.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-756-11.

Luis A. Martinez argued the cause for appellants (LaBarbiera & Martinez, attorneys; Mr. Martinez, of counsel and on the brief).

Albert C. Lisbona argued the cause for respondents (Dwyer Connell & Lisbona, attorneys (as to negligence claims only); Mr. Lisbona, on the brief).

Rubenstein, Meyerson, Fox, Mancinelli & Conte, P.A., attorneys for respondents (as to all claims other than negligence), join in the brief of respondents.

PER CURIAM

Plaintiffs appeal from a Law Division order granting summary judgment to defendants Christopher S. Schneider and CG Schneider Construction Company, Inc. ("defendants" when referenced collectively, "Schneider" or "the construction company" when referenced individually). Plaintiffs argue that the motion court erred in granting summary judgment because the construction company,1 plaintiff Luciano Morales' employer at the time of his injury, through its principal, Schneider, "acted in contravention of State law by driving on the wrong side for over a block on a busy road and was charged criminally for his conduct[,]" making it "virtually certain" that Morales, a passenger in the employer's truck, would be injured, and thereby overcoming the exclusive remedy provision, N.J.S.A. 34:15-8, in the Workers' Compensation Act (the Act), N.J.S.A. 34:15-1 to -142.

As most recently affirmed in Van Dunk v. Reckson Associates Realty Corp., 210 N.J. 449 (2012), because we narrowly construe the intentional tort exception, we reject plaintiffs' argument and affirm.

I.

Our review of a motion court order granting summary judgment is de novo, and we apply the same standard as the motion court in determining whether there are any genuinely disputed issues of material fact sufficient to warrant resolution of the disputed issues by the trier of fact. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Our analysis requires that we first determine whether the moving party has demonstrated that there are no genuine disputes as to material facts, and then we decide "whether the motion judge's application of the law was correct." Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230-31 (App. Div.), certif. denied, 189 N.J. 104 (2006). In so doing, we view the evidence "in the light most favorable to the parties opposing summary judgment." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). We accord no special deference to the motion judge's conclusions on issues of law. Zabilowicz v. Kelsey, 200 N.J. 507, 512 (2009).

Following are the salient facts viewed in a light most favorable to plaintiffs. On December 31, 2009, at approximately 8:30 a.m., Schneider was driving a construction company truck southbound on Rivervale Road in River Vale. Morales, a construction company employee, was a passenger in the truck. It was snowing at the time, and Schneider and Morales were on their way to the company's place of business to meet other contractors the company had hired to undertake snowplowing services for the construction company's clients.

Rivervale Road is a two-lane road on which the northbound and southbound lanes are divided by a double yellow line. That morning, the road was snow-covered and the traffic was slow-moving. At some point, Schneider, while still driving south, crossed the double yellow line and entered the northbound lane of Rivervale Road in an effort to pass the slower traffic ahead of him. Schneider drove for "more than a full block" in the northbound lane, when a truck travelling lawfully in the southbound lane began a left turn onto a local side street.

In an effort to avoid hitting the truck, Schneider veered left, lost control of the vehicle, left the roadway, and hit a utility pole and a tree. Morales suffered grievous injuries in the accident, and the Bergen County Prosecutors Office was called in to investigate the circumstances of the one-vehicle accident.

Schneider was given motor vehicle summonses for reckless driving, N.J.S.A. 39:4-96; failing to keep right, N.J.S.A. 39:4-82; and improper passing, N.J.S.A. 39:4-85. He was also charged in an accusation brought by the Bergen County Prosecutor with fourth-degree assault by auto for "caus[ing] serious bodily injury to . . . Morales by recklessly driving" on December 31, 2009. Schneider was admitted into the pre-trial intervention program with respect to the accusation, and pled guilty to the motor vehicle summons for reckless driving.

Morales applied for and received workers' compensation benefits for his injuries. Plaintiffs2 also brought a Law Division action against defendants. However, following the completion of discovery, defendants sought and were granted summary judgment under the Act's exclusive remedy provision, N.J.S.A. 34:15-8.

This appeal followed.

II.

Plaintiffs argue that the statute "was not intended by the Legislature to support and sanction the knowing and purposeful disobedience of our criminal laws and traffic laws" and they characterize Schneider's conduct as "outrageous and egregious." We have considered plaintiffs' arguments in light of the record and the applicable law. We affirm.

We begin with a statement of some basic principles that guide our analysis. The Act, N.J.S.A. 34:15-1 to -142, provides the exclusive avenue by which an injured worker may recover compensation from his or her employer for work-related injuries, except for claims based on an "intentional wrong." N.J.S.A. 34:15-8. "[A]n employer who causes the death or injury of an employee by committing an 'intentional wrong' will not be insulated from common-law suit." Laidlow v. Hariton Machinery Co., Inc., 170 N.J. 602, 606 (2002) (citing Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 161, 169 (1985)). Because the goal of the Act is to provide compensation to injured workers for as many work-related injuries as possible, the Act's "intentional wrong" exception must be narrowly construed:

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. Rather, the level of intent sufficient to overcome the exclusivity of the Act is a deliberate intention to injure. An employer acts with such an intent when he desires to cause consequences of his act or is substantially certain that such consequences will result from his actions.

[Kaczorowska v. Nat'l Envelope Corp., 342 N.J. Super. 580, 587-88 (App. Div. 2001) (internal citations and quotations omitted).]

Millison explicitly addressed "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 asserted claims against their employer for knowingly and deliberately exposing them to a hazardous work environment and concealing from them the existence of occupational diseases arising from such exposure. The Court articulated a standard by which to measure whether an employer's conduct rose to the level of an "intentional wrong" under the Act. Id. at 177-80. The Court adverted to 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.

[Id. at 177 (quoting W. Prosser & W. Keeton, The Law of Torts, 8 at 36 (5th Ed. 1984)).]

The Court also observed 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 in Millison equated "substantial certainty" with virtual certainty, and trial courts therefore must 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. Id. at 179. 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]?" Ibid.

The Court reaffirmed this holding in Laidlow, where it also observed that proving both the conduct and context prongs may involve consideration of the same facts and circumstances. Laidlow, supra, 170 N.J. at 623. The principle that emerged from Laidlow and subsequent 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 id. at 622-23 (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 v. Borden, Inc., 316 N.J. Super. 218, 230-31 (App. Div. 1998) (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.")

The Millison "conduct" prong requires the court to determine whether a plaintiff has presented evidence from which a jury could reasonably conclude "the employer acted with knowledge that it was substantially certain that a worker would suffer injury." Laidlow, supra, 170 N.J. at 623. No single factor is dispositive; rather, it is the totality of the circumstances existing both leading up to the accident and at the time of the accident that must be examined. Id. at 621-23; see also Mull v. Zeta Consumer Prods., 176 N.J. 385, 392 (2003). If the answer to this question is affirmative, the court next must address the context prong to ascertain whether plaintiff's allegations constitute a "simple fact of industrial life or are outside of the purview of the conditions the Legislature could have intended to immunize under the [Act]." Laidlow, supra, 170 N.J. at 623.

Most recently, in Van Dunk, the Court held that the Act's exclusivity bar applied where the workplace accident produced an OSHA citation for a "willful" violation of OSHA safety rules. Van Dunk, supra, 210 N.J. at 474. In Van Dunk, the plaintiff, a construction worker, had been injured when a trench collapsed on him at his worksite. The unsupported trench was excavated to a depth beyond which a worker could enter without safety equipment, according to OSHA safety rules and the employer's safety program. Id. at 454. The employer was charged with willful violation of OSHA regulations, did not contest the charges, and was fined. Id. at 455. The supervisor acknowledged the violations, including conceding a failure to use safety equipment despite having it at the job site. Ibid.

The Court held "that the finding of a willful violation under OSHA is not dispositive of the issue of whether the employer in this case committed an intentional wrong." Id. at 470. With respect to the conduct prong of the intentional wrong exception, the Court explained that "[a] probability, or knowledge that [] injury or death 'could' result, is insufficient." Ibid. Instead, the "intentional wrong must amount to a virtual certainty that bodily injury or death will result." Ibid. Furthermore, the Court observed that the "high threshold" of the context prong was not met by "the type of mistaken judgment by the employer and ensuing employee accident that occurred on [the] construction site." Id. at 474.

In finding no intentional wrong, the Court distinguished the facts in that case from others that "involved the employer's affirmative action to remove a safety device from a machine, prior OSHA citations, deliberate deceit regarding the condition of the workplace, machine, or, in the case of Millison, the employee's medical condition, knowledge of prior injury or accidents, and previous complaints from employees." Id. at 471. In short, while the knowing failure to take safety precautions was an "exceptional wrong," it was not the type of egregious conduct associated with an intentional wrong.

Thus, in addition to violations of safety regulations or failure to follow good safety practice, an intentional wrong must be accompanied by something more, typically deception, affirmative acts that defeat safety devices, or a willful failure to remedy past violations. See Laidlow, supra, 170 N.J. at 616; Millison, supra, 101 N.J. at 179 (noting that the "mere toleration of workplace hazards 'will come up short' of substantial certainty"). Absent such egregious conduct, the employee is limited to the workers' compensation remedy.

With these principles in mind, there is simply nothing in the record to support the claim that Schneider acted with a deliberate intention to injure Morales or a virtual certainty that such an injury would occur. The record supports the argument that Schneider drove recklessly,3 but does not support an intent to injure or a virtual certainty that injury will occur. Tomeo v. Thomas Whitesell Constr. Co., Inc., 176 N.J. 366, 371 (2003) ("simply being aware of the risk of harm does not equate to having knowledge of a substantial certainty of harm.").

While it might be said that Schneider ignored various safety precautions and statutory provisions, and in doing so created a greater risk of injury to plaintiff conduct that clearly cannot be condoned - we are convinced it does not amount to an intentional wrong that allows plaintiff to avoid the workers' compensation bar.

In summary, the evidence, when viewed in plaintiff's favor, is simply insufficient to support the claim that the employer knew its actions were virtually certain to result in injury to plaintiff. Because our analysis of the evidence relevant to the conduct prong leads us to conclude that plaintiff has failed to meet his burden at this stage of the litigation of proffering prima facie proof of an intentional wrong, we need not address the context prong. See Laidlow, supra, 170 N.J. at 623.

Affirmed.

1 Schneider was the sole shareholder and principal of the construction company.

2 Theresa Soriano is a plaintiff only on the per quod claims.

3 At argument, plaintiffs' counsel repeatedly stressed that Schneider "deliberately" violated the "criminal laws of New Jersey." This argument is without merit. Both the accusation and the motor vehicle summons charged that Schneider drove "recklessly." Our criminal laws carefully distinguish culpability based upon knowing, purposeful, reckless and negligent acts, and N.J.S.A. 2C:2-2(b)(3) expressly defines "recklessly" as follows:

A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor's situation. "Recklessness," "with recklessness" or equivalent terms have the same meaning.

See generally, State v. Parker, 198 N.J. Super. 272 (App. Div. 1984), certif. denied, 99 N.J. 239 (1985) for a discussion of the distinctions between reckless and intentional misuse of a vehicle.