ALEXANDER DIMATTIES v. ECHELON GLEN APARTMENTS, ECHELON GLEN MANAGEMENT

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2420-06T52420-06T5

ALEXANDER DIMATTIES,

Plaintiff-Respondent,

v.

ECHELON GLEN APARTMENTS, ECHELON

GLEN MANAGEMENT,

Defendants-Respondents,

and

PARADIGM MANAGEMENT COMPANY,

Defendant-Appellant.

________________________________________________________________

 

Submitted May 1, 2007 - Decided May 18, 2007

Before Judges Skillman and Lisa.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, L-5451-04.

J. Mark Pecci, II, attorney for appellant (R. Barry Strosnider, on the brief).

Ginsberg & O'Connor, attorneys for respondent Alexander DiMatties (Adam M. Raditz, on the brief).

Respondents, Echelon Glen Apartments and Echelon Glen Management, did not file a brief.

PER CURIAM

By leave granted, defendant, Paradigm Management Company, appeals from denial of its summary judgment motion seeking dismissal of the complaint by its employee, Alexander DiMatties, for personal injuries sustained in a work-related accident. The trial judge rejected defendant's reliance on the workers' compensation bar to plaintiff's claim and found that plaintiff presented sufficient evidence to satisfy the intentional wrong exclusion to the bar. See N.J.S.A. 34:15-8. We disagree with the judge's conclusion and reverse.

Considering the evidential materials in the light most favorable to plaintiff, see Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), these are the pertinent facts. Defendant is the owner or manager of the Echelon Glen Apartments in Voorhees Township. Echelon Glen is a large complex, consisting of multiple buildings and several sections. Plaintiff was employed by defendant as a member of the maintenance staff. His particular job responsibility was to perform HVAC maintenance, and he also performed other maintenance tasks.

Defendant provided four of its maintenance workers, including plaintiff, with electric golf carts. A specific cart was assigned to each of these workers. These employees used the carts to go from job to job around the complex, traveling primarily on the sidewalks, although sometimes on public roads adjoining the complex. The carts could attain a maximum speed of fifteen miles per hour. Some portions of the complex were described as "hilly."

During the summer months of 2002, plaintiff reported to his supervisor on a number of occasions that the brakes on his cart were wearing down, and then were not working at all. Plaintiff carried a set of chocks in the cart to prevent it from rolling when parked. Whenever plaintiff discussed this with his supervisor, he was told it would be taken care of. On one occasion, plaintiff discussed the issue with the general manager of Echelon Glen, who assured plaintiff she would discuss the issue with plaintiff's supervisor.

Defendant's policy was that the individuals assigned the carts were responsible for their maintenance. If they needed parts, they would let the supervisor know and he would order them. If the maintenance or repair required was beyond the ability of the employee to perform, defendant would send the cart out to a contractor, South Jersey Electric Vehicles (South Jersey), for the work to be performed. From time to time, South Jersey performed such work on the carts. It completed brake work on the carts and rebuilt the front end of one of them.

Plaintiff contended that at one point, his supervisor provided him with "half a brake shoe," which he did not utilize because he did not know how to repair brakes and, in any event, he was "pretty sure the golf cart takes four brake shoes." Plaintiff's supervisor testified in his deposition that for minor brake work, he would order the parts and the employees could perform the work, but for more significant brake jobs the cart would be sent to South Jersey. He explained it this way:

Well, if there was a problem with trying to get the drums off, or something we would have to spend a lot of time on trying to fix, we would send it out. If it was something easy, we could pop the hub off without a problem, without it being stuck, then we would do it. Or adjust the cables, whatever needed to be done.

Invoices from South Jersey reflect that defendant purchased brake drums from time to time, including on July 3, 2002 and September 14, 2002.

On September 27, 2002, plaintiff's co-employee asked plaintiff if he wanted him to drive the cart into the shop. Plaintiff replied in the affirmative. According to the co-employee, he "gently" applied the accelerator pedal and it jammed, suddenly accelerating the cart forward in plaintiff's direction, and when he applied the brakes, they "malfunctioned." The co-employee estimated the cart lunged forward at approximately five to ten miles per hour. The cart struck plaintiff, causing him injuries.

Plaintiff brought this action against defendant and others. After discovery was conducted, defendant moved for summary judgment, relying upon the workers' compensation bar to a common law claim for injuries by its employee. The judge denied the motion, and we granted defendant's motion for leave to appeal.

The Workers' Compensation Act, N.J.S.A. 34:15-1 to -128, "seeks to protect injured workers from becoming mired in costly and protracted litigation that could delay payment of their claims." Crippen v. Cent. Jersey Concrete Pipe Co., 176 N.J. 397, 411 (2003) (Verniero, J., concurring). It does this "by providing within its purview the exclusive remedy for claims against an employer when a worker is injured on the job, except for those injuries that have resulted from the employer's intentional wrong." Ibid. (internal quotations omitted). This exclusive remedy established by N.J.S.A. 34:15-8 "embodies 'an historic trade-off whereby employees relinquish their right to pursue common-law remedies in exchange for prompt and automatic entitlement to benefits for work-related injuries.'" Id. at 411-12 (Verniero, J. concurring) (quoting Laidlow v. Hariton Mach. Co., Inc., 170 N.J. 602, 605 (2002) (internal quotation omitted)).

To overcome the exclusivity bar, an injured worker must satisfy two separate conditions originally articulated by the Supreme Court in Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 161 (1985), and later revisited in Laidlow, supra. The claimant must first satisfy the "conduct" prong by alleging sufficient facts to demonstrate that his or her employer knew its actions were "substantially certain to result in injury or death to the employee." Laidlow, supra, 170 N.J. at 617. Though "an intentional wrong is not limited to actions taken with a subjective desire to harm, but also includes instances where an employer knows that the consequences of those acts are substantially certain to result in such harm," id. at 613, "an employer's mere knowledge that the workplace is dangerous does not qualify as an intentional wrong." Crippen, supra, 176 N.J. at 412 (Verniero, J., concurring).

"[T]he dividing line between negligent or reckless conduct on the one hand and intentional wrong on the other must be drawn with caution, so that the statutory framework of the Act is not circumvented simply because a known risk later blossoms into reality. [The Court] must demand a virtual certainty." Millison, supra, 101 N.J. at 178. And while "the absence of a prior accident does not preclude a finding of an intentional wrong[,] [r]eports of prior accidents and 'close-calls,' are merely evidence 'that may be considered in the substantial certainty analysis.'" Crippen, supra, 176 N.J. at 408 (quoting Laidlow, supra, 170 N.J. at 621-22).

The second condition the claimant must satisfy is the "context" prong. Laidlow, supra, 170 N.J. at 617. This requires a showing that "the resulting injury and the circumstances of its infliction on the worker" constituted "more than a fact of life of industrial employment" and were "plainly beyond anything the Legislature intended the Workers' Compensation Act to immunize." Ibid.

An injured worker must establish both prongs "in order for an employer's act to lose the cloak of immunity of N.J.S.A. 34:15-8." Ibid. "When evaluating whether a claimant has satisfied those two conditions," the court must "consider 'the totality of the facts contained in the record[.]'" Crippen, supra, 176 N.J. at 412 (Verniero, J., concurring) (quoting Laidlow, supra, 170 N.J. at 623). The same facts and circumstances generally will be relevant to both prongs, but the conduct prong ordinarily is to be determined by the jury, while the context prong is a question of law for the court. Laidlow, supra, 170 N.J. at 623.

The trial judge found that plaintiff presented sufficient evidence to withstand summary judgment on the conduct prong. He concluded that, viewing the evidence most favorably to plaintiff, a jury could reasonably find that because defendant was on notice of malfunctioning brakes on the golf cart regularly used by plaintiff, defendant knew it was substantially certain an injury such as that suffered by plaintiff would occur. The judge further found, as a matter of law, that the context prong was satisfied because defendant was on notice of a dangerous situation, thus making this incident more than a mere fact of life of industrial employment.

We do not agree with the judge's conclusions. With respect to the conduct prong, defendant's knowledge of a dangerous condition and failure to correct it is not enough to provide a basis for a finding of virtual certainty that an injury would occur. In Millison, supra, 101 N.J. at 179, for example, the Court concluded that the defendant employer could not be deemed to have committed an "intentional wrong" for failing to disclose known health risks associated with asbestos to its employees and for continuing to expose them to such risks. However, the Court did determine that if plaintiffs' allegations that defendant deliberately concealed knowledge from plaintiffs that they were already suffering from asbestos-related diseases and continued to expose them to asbestos were proven true, such conduct would rise to the level of an "intentional wrong." Id. at 181-82. In particular, the Court explained:

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 Compensation Act.

[Id. at 182.]

The Court reaffirmed the Millison holding in Laidlow, supra, 170 N.J. at 606, 617. There the Court highlighted the need for a case-by-case analysis, id. at 619, and applying the two-part test outlined in Millison found that an employer's conduct in removing a safety guard from a rolling mill, despite knowledge of repeated "close calls" and repeated requests from the injured employee prior to his accident to restore the safety guard, and in deceiving OSHA inspectors by reinstalling the safety guard during inspections, could enable a reasonable jury to conclude that the employer was substantially certain that its action would eventually result in injury to one of its employees. Id. at 622. The Court explained, "[S]uch conduct violates the social contract so thoroughly that we are confident that the Legislature would never expect it to fall within the Workers['] Compensation bar." Ibid. See also Crippen, supra, 176 N.J. at 406-11 (applying Millison and Laidlow and concluding that employer's actions in failing to correct OSHA-cited safety violation and deliberately deceiving OSHA into believing it had abated the violations could sustain a finding of "intentional wrong"); Mull v. Zeta Consumer Prods., 176 N.J. 385, 392-93 (2003) (holding that even where employer did not deliberately deceive OSHA, its removal of a safety device from a winder coupled with its knowledge of the machine's dangerous condition because of previous accidents and complaints and OSHA citations could be construed as an "intentional wrong").

Thus, in Millison, Laidlow, Crippen, and Mull, the facts included affirmative action by the employer to remove a safety device from a machine, prior OSHA citations, deliberate deceit regarding the condition of the workplace, machine or employee's condition, knowledge of prior accidents, and previous complaints from employees. Facts of that nature are not present here, but are more comparable to cases in which the intentional wrong exception has been held inapplicable. See, e.g., Tomeo v. Thomas Whitesell Constr. Co., Inc., 176 N.J. 366, 374-77 (2003) (employer's alleged action of taping a safety lever into a disabled position on a snow blower did not rise to the level of an "intentional wrong" because there was a lack of evidence, including expert evidence, to satisfy the "virtual certainty" standard or to demonstrate that the employer's conduct was inconsistent with "what is part and parcel of the workplace."); Marinelli v. Mitts & Merrill, 303 N.J. Super. 61, 71-73 (App. Div. 1997) (employer may have evidenced "gross negligence or an abysmal lack of concern for the safety of employees" but no "intentional wrong" where it knew prior explosion occurred after employees in another plant punctured cans of hairspray but directed employees in plaintiff's plant to do so again); Bustamante v. Tuliano, 248 N.J. Super. 492, 500 (App. Div.), certif. denied, 126 N.J. 385 (1991) (no "intentional wrong" where plaintiff, a police officer member of an emergency response team, was injured by a wax bullet defendant admittedly shot to sting and eliminate him from a training exercise).

We have also declined to apply the exclusivity provision of the Workers' Compensation Act in situations where the intervening acts of a third party contributed to the employee's injury or death. See, e.g., Fisher v. Sears, Roebuck & Co., 363 N.J. Super. 457, 470-73 (App. Div. 2003), certif. denied, 179 N.J. 310 (2004) (involving an employee security guard killed in a robbery).

The facts in the case before us do not rise to the level of satisfying the "virtual certainty" standard. There is no suggestion that defendant took any affirmative action to disable the brakes on plaintiff's golf cart or to deceive him regarding the status of the brakes. Nor did plaintiff present any evidence of prior accidents or close calls resulting from braking problems on any of the golf carts. And, plaintiff presented no expert evidence concerning characteristics of the golf cart, including its weight, how it could be stopped without functioning brakes, and the kind of risk posed by the lack of brakes. We are dealing here with the use of a slow moving vehicle within the confines of an apartment complex and an injury to plaintiff caused by a third-party who was not authorized by defendant to operate the golf cart. In the overall circumstances of plaintiff's accident, a reasonable jury could not find that defendant was "substantially" or "virtually" certain that its failure to repair the brakes on plaintiff's golf cart would result in an employee's injury.

Because we have determined that the conduct prong was not satisfied, it is unnecessary for us to address the context prong. See Laidlow, supra, 170 N.J. at 623.

 
Reversed.

(continued)

(continued)

12

A-2420-06T5

May 18, 2007