WILLARD E. APPLEGATE, JR., et al. v. ARCH ALUMINUM & GLASS, INC.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1122-06T31122-06T3

WILLARD E. APPLEGATE, JR.,

and LORETTA J. APPLEGATE,

his wife,

Plaintiffs-Appellants,

v.

ARCH ALUMINUM & GLASS, INC.,

Defendant-Respondent.

_________________________________________________

 

Submitted September 4, 2007 - Decided September 7, 2007

Before Judges Payne and Messano.

On appeal from Superior Court of New Jersey,

Law Division, Gloucester County, L-600-04.

Angelo J. Falciani, attorney for appellants.

Marshall, Dennehey, Warner, Coleman &

Goggin, attorneys for respondent (Walter

F. Kawalec, III, on the brief).

PER CURIAM

Plaintiff, Willard E. Applegate, Jr., a former employee of defendant, Arch Aluminum & Glass, Inc., together with his wife, Loretta J. Applegate, suing per quod, appeal from an order of summary judgment entered against them on their amended complaint against Arch. In that complaint, Applegate, a known diabetic, alleged injury as the result of Arch's decision to request Applegate's adult son to pick up his father, who had become ill at work, rather than to summon an ambulance by calling 911, "with full knowledge that it was substantially certain Willard would suffer injury," thereby "precluding the workmans compensation bar to a tort action." Applegate additionally alleged that Arch's failure to provide him with proper assistance constituted discrimination against the handicapped in violation of law.

On appeal, Applegate makes the following arguments:

I. THE DEFENDANT-EMPLOYER COMMITTED AN INTENTIONAL WRONG WHEN IT REFUSED AND FAILED TO CALL 911 THEREBY OVERCOMING THE WORKER'S COMPENSATION BAR OF N.J.S.A. 34:15-8.

II. THE DEFENDANT-EMPLOYER FAILED TO ACCOMMODATE WILLARD E. APPLEGATE, JR., A JUDICIALLY DETERMINED HANDICAPPED EMPLOYEE MAKING THE DEFENDANT-EMPLOYER LIABLE TO WILLARD E. APPLEGATE, JR., UNDER THE NEW JERSEY LAW AGAINST DISCRIMINATION (LAD), N.J.S.A., SECTION 10:5-1, ET SEQ.

We affirm.

The evidence submitted in connection with Arch's motion for summary judgment demonstrated that Applegate fell ill at work on July 12, 2002. He had been diagnosed as a Type I diabetic at the age of four, and he had commenced to use an insulin pump for the treatment of his condition five years before the incident at issue. Applegate's employer, Arch, was aware of his diabetic condition and his use of an insulin pump. Arch was also aware that, as the result of his condition, Applegate would on occasion need to take unscheduled breaks in order to eat. Applegate does not allege any failure on Arch's part to accommodate him in this regard.

According to an internal Arch memorandum, on March 7, 1997, while employed at Arch's Pennsauken facility, Applegate "went into a diabetic coma/passed out-and stared into space." Paramedics, responding to Arch's 911 call, checked Applegate's blood sugar level and administered glucose. Applegate refused to be taken to the hospital, stating that "this has happened before and that he would be fine." He drove himself home approximately two hours later. Testimony regarding this incident disclosed that, at the time, Applegate had appeared disoriented, recognized the cause of his disorientation, and had eaten a Tastykake prior to the arrival of emergency personnel.

Applegate was later transferred to Arch's Bridgeport facility. On July 12, 2002, Applegate clocked in at Bridgeport at 7:40 a.m. Several hours later, he fell ill and vomited. Upon his return to work, Applegate's supervisor, Matt McGowan, observed that Applegate was ill, informed the plant manager, Steven Tenney, and the two walked Applegate to the plant's lunchroom. According to Tenney, Applegate informed the two men that his symptoms resulted from his diabetes, and after requesting and receiving his lunch bucket, he ate something. Tenney also testified at his deposition that both he and McGowan urged that an ambulance be summoned, but Applegate rejected the suggestion, insisting instead that his son be called. A call was placed at approximately 1:00. However, the son did not leave home until approximately 2:30 p.m., arriving at the plant at approximately 3:00.

During the period before the son's arrival, Applegate remained in the lunchroom. Initially, he was supervised by McGowan and Tenney, but later both returned to work, and Wayne Gallo was summoned to sit with him, where he remained for forty-five minutes to one hour. While Gallo was present, Applegate requested water, ice and a cold towel, all of which were supplied to him by Gallo. There is no evidence that Applegate was ever left alone.

At some point while Applegate and Tenney remained together in the lunchroom, a CPR-trained employee, Carol Wright, entered the room. It was her opinion, based upon Applegate's alleged poor color, lack of responsiveness, and sweating, that he was having a heart attack, and that his condition was not attributable to diabetes. She urged that 911 be called, regardless of Applegate's opposition to this course of action. Tenney directed Wright to return to her desk and did not follow her advice, but instead awaited the arrival of the Applegate's son. Wright, who was present in the lunchroom for only a few minutes, was not a witness to conversations with Applegate, and he has no recollection of the material events of the day.

Upon the son's arrival, Applegate was taken home, vomiting once more during the course of the ride and exhibiting difficulty in walking in a straight line up to the family's second-floor apartment. After reaching home at approximately 4:00, Applegate lay on top of his bed, where he remained for the rest of the afternoon and into the evening. At approximately 7:00 p.m., the son left the apartment to spend time with his girlfriend, returning at 10:30. Upon the son's return, he found Applegate on the floor, having slipped off the bed. However, Applegate was able to return to his bed unaided, and he appears to have remained there through the night.

Applegate's wife, who was house sitting for a relative at the time, briefly checked on Applegate on one occasion on July 12, and again during the morning of July 13. Although she and the son were aware of Applegate's diabetes and had observed him on other occasions when his blood sugar was low, both were of the opinion that Applegate was suffering from stomach flu, which was prevalent at the time. Neither checked Applegate's blood sugar or the logs of his own blood tests. At 4:00 p.m. on July 13, the wife and son again observed Applegate and, finding his condition to be worse, the wife called for an ambulance.

Applegate was found to be suffering from hypoglycemia and other conditions. He was hospitalized, and during his hospitalization, he suffered two strokes, a myocardial infarction, and other substantial difficulties, sustaining permanent injury as a result. The existence of a causal relationship between Applegate's injuries and Arch's conduct is contested. Applegate has been found to be totally disabled.

N.J.S.A. 34:15-8 provides that workers' compensation affords the exclusive remedy for employees sustaining a work-related injury unless the conduct of the employer resulting in the injury constitutes an "intentional wrong." In Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 161 (1985), an asbestos exposure case, the Supreme Court construed the intentional wrong exclusion from the workers' compensation bar as requiring evidence that the actor "desires to cause consequences of his act or is substantially certain that such consequences will result from his actions." Id. at 178 (quoting Restatement (Second) of Torts, 8A. Quoting Dean Prosser, the Court held:

[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 and W. Keeton, The Law of Torts, 8 at 36 (5th ed. 1984)).

The Court in Millison additionally imposed a second requirement to proof of an intentional wrong sufficient to avoid the workers' compensation bar, stating:

Courts must examine not only the conduct of the employer, but also the context in which that conduct takes place: may the resulting injury or disease, and the circumstances in which it is inflicted on the worker, fairly be viewed as a fact of life of industrial employment, or it is rather plainly beyond anything the legislature could have contemplated as entitling the employee to recover only under the Compensation Act?

[Id. at 179.]

Later, in Laidlow v. Hariton Machinery Co., Inc., 170 N.J. 602 (2002), a disabled safety device case, the Supreme Court affirmed its interpretation of intentional wrong as encompassing both a deliberate intent to injure and situations in which the employer knows that the consequences of its acts are substantially certain to result in harm to the employee, and the Court likewise reiterated its requirement that the conduct be shown to be "plainly outside the legislative grant of immunity." Id. at 613-15. See also Tomeo v. Thomas Whitesell Constr. Co., Inc., 176 N.J. 366, 374 (2003)(reiterating the requirement of substantial certainty in the context of a disabled safety device); Mull v. Zeta Consumer Prods, 176 N.J. 385, 391-93 (2003); Crippen v. Central Jersey Concrete Pipe Co. 176 N.J. 397, 406-10 (2003).

In the present case, Applegate claims that Arch's knowledge of a substantial certainty of harm to him resulting from its failure to summon an ambulance was demonstrated by its disregard of a written "post accident procedure" directive, providing, in paragraph three: "If you think Emergency Medical Service (E.M.S.) is needed, do not hesitate to call your local E.M.S. 911." Applegate also cites as relevant evidence Arch's experience in connection with his prior episode of low blood sugar on March 7, 1997 when an ambulance was called, glucose was administered, and Applegate fully recovered; Wright's deposition testimony that she urged Tenney to call 911 because she suspected a heart attack, not a diabetic episode - advice that was not taken; and the testimony of Applegate's expert endocrinologist that, as the result of the prior episode, Arch's employees "should have been aware" that Applegate would suffer serious damage if he did not receive prompt medical attention.

We do not regard this evidence, viewed separately or together, as providing sufficient grounds for a determination that Arch acted with an intent to injure Applegate or with knowledge, to a substantial certainty, that injury would result from its conduct. Although, in retrospect, it appears that Arch made an incorrect decision in entrusting Applegate to the care of his wife and son, in accordance with Applegate's wishes, in the circumstances presented, its decision to do so does not rise to the level required by N.J.S.A. 34:15-8, Millison, or subsequent Supreme Court decisions implementing Millison in various factual contexts.

The record in this matter is devoid of any evidence that Arch's employees had knowledge, either as the result of Applegate's prior episode or otherwise, of the long-term consequences of low blood sugar to a diabetic or of the need for prompt action to address the condition. The record also lacks evidence of any protocol mandating the summoning of emergency medical aid in the context presented. We note as well the absence of any evidence of knowledge by Arch that Applegate's wife and son, persons in a position to know Applegate's diabetic condition and its consequences, would fail to obtain medical assistance in a prompt fashion, were it required. Applegate's closest relatives, knowing him intimately, concluded that Applegate was suffering from stomach flu that did not require immediate medical intervention, but instead, should be left to run its three-day course. In fact, Applegate's symptoms differed from those experienced in prior diabetic episodes, since they included vomiting. We discern no basis for charging Arch with greater knowledge than Applegate's immediate family possessed of the cause of his condition or of the consequences of its failure to summon emergency medical aid. Evidence necessary to establish an intentional wrong in this case, as that term has been defined, is simply lacking.

In his second argument, Applegate claims a violation of the New Jersey Law Against Discrimination (NJLAD), N.J.S.A. 10:5-1 to -30. However, our review of the record demonstrates no act on Arch's part that could be construed as discrimination "in compensation or in terms, conditions or privileges of employment," as the NJLAD requires in order for unlawful discrimination to be established. See N.J.S.A. 10:5-12a. Applegate offers no facts or legal precedent that would suggest that Arch's failure to summon an ambulance for him, the sole conduct at issue in this case, can be deemed discrimination in this regard. Armstrong v. Burdette Tomlin Mem'l Hosp., 438 F.3d 240 (3d Cir. 2006), a decision concerning the alleged failure of an employer to help a handicapped employee find a job that reasonably accommodated his disability, upon which Applegate relies, is not relevant to a claim of the sort alleged here.

 
Affirmed.

There is a dispute of fact as to whether Applegate was unresponsive or whether Applegate acted dazed and responded slowly. All agree that he sat with his head on the table during much of the time spent in the lunchroom.

(continued)

(continued)

11

A-1122-06T3

September 7, 2007