SHELDON NORWOOD v. GENESIS LOGISTICS, INC., et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5674-05T25674-05T2

SHELDON NORWOOD,

Plaintiff-Appellant,

v.

GENESIS LOGISTICS, INC.

and/or TIBBETT & BRITTEN

GROUP OF NORTH AMERICA, INC.

and/or EXEL, JEAN COLEMAN

and WILLIAM H. HANSEN,

Defendants-Respondents.

_______________________________________

 

Argued September 11, 2007 - Decided September 25, 2007

Before Judges Skillman and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. CAM-L-9094-05.

Saul J. Steinberg argued the cause for appellant (Sufrin Zucker Steinberg Sonstein & Wixted, attorneys; Mr. Steinberg, on the brief).

Brian D. Barr argued the cause for respondents Genesis Logistics, Inc., and Tibbett & Britten Group of North America, Inc. (Cooper Levenson April Niedelman & Wagenheim, attorneys; Mr. Barr, on the brief).

Francis W. Worthington argued the cause for respondents Jean Coleman and William Hansen (Worthington & Worthington, attorneys; Mr. Worthington, on the brief).

PER CURIAM

Plaintiff Sheldon Norwood appeals from orders entered by the Law Division on May 26, 2006, which granted summary judgment in favor of defendants Genesis Logistics, Inc. (Genesis); Tibbett & Britten Group of North America, Inc. (Tibbett); Exel; Jean Coleman (Coleman); and William Hansen (Hansen), and dismissed plaintiff's claims with prejudice. For the reasons that follow, we affirm the grant of summary judgment to defendants but modify the orders to provide for the dismissal of plaintiff's claims without prejudice to their reinstatement, in the event that the Division of Workers' Compensation (Division) determines that the claims are not compensable under the Workers' Compensation Act, N.J.S.A. 34:15-1 to -128 (the Compensation Act).

In May 2004, plaintiff and Jerome Williamston (Williamston) were employed as truck drivers by Genesis, an entity that provides trucking and related services to other companies. At the time, Coleman was employed by Genesis in a supervisory or management capacity, and Hansen was employed as a truck driver and in a supervisory capacity. On May 15, 2004, Williamston stabbed plaintiff with a seven-inch knife, allegedly causing plaintiff to sustain serious and permanent injuries. Plaintiff alleges that the assault occurred on Genesis' premises, during the course of his employment.

On October 19, 2005, plaintiff filed a four-count complaint in the Law Division against Genesis, Tibbett, Exel, Coleman and Hansen. Plaintiff alleges that in or about 1998, while employed by Genesis, Williamston assaulted a co-worker, using a metal object as a weapon. According to plaintiff, at the time of this assault, both Coleman and Hansen were working for the company. Genesis terminated Williamston because of his participation in the assault. Plaintiff claims that Coleman and Hansen both knew about the incident. In or about 2000, Genesis re-hired Williamston. Plaintiff alleges that Genesis, Coleman and Hansen knew that Williamston was suffering from certain emotional, psychological, and substance abuse problems.

According to the complaint, sometime after Genesis re-hired Williamston, he assaulted plaintiff. As a result, Genesis suspended both Williamston and plaintiff for one day. Plaintiff claims that after this incident, Williamston's co-workers "taunted and agitated" Williamston concerning the assault and what plaintiff says was its "lack of success." Plaintiff alleges that Hansen participated in "taunting and agitating" Williamston, and Williamston "repeatedly told" Hansen and his co-workers that he "would settle the score or otherwise retaliate against plaintiff." Plaintiff asserts that Genesis had actual or constructive knowledge of the "danger" that Williamston posed to plaintiff.

In the first three counts of his complaint, plaintiff asserts claims against Genesis, Coleman and Hansen, respectively. Plaintiff alleges that each of these defendants was negligent because they failed to: 1) take "precautionary measures to preclude" Williamston from encountering plaintiff on Genesis' property; 2) provide adequate security; 3) require Williamston to participate in counseling; 4) discipline, admonish, counsel and advise Genesis' employees about the "taunting and agitating" of Williamston; 5) advise plaintiff of Williamston's threats; and 6) "exert reasonable and adequate supervisory authority" over Genesis' personnel.

In the fourth count of the complaint, plaintiff alleges that defendants' actions were "outrageous, reckless, grossly negligent, complicit and/or [willful]." He claims that defendants' actions and inaction "fostered the atmosphere" in which Williamston's May 15, 2004 assault upon plaintiff "became a virtual certainty." Plaintiff asserts that defendants' conduct "was the substantial equivalent [to] intentional behavior."

In April 2006, Genesis moved for summary judgment, arguing that plaintiff's claims were barred by the exclusive remedy provision in N.J.S.A. 34:15-8. In their statement of material facts, Genesis asserted, among other things, that plaintiff's lawsuit arose from injuries sustained by plaintiff during the course of his employment with Genesis. At or about the same time, Coleman and Hansen also moved for summary judgment. In their moving papers, Coleman and Hansen argued that because they were plaintiff's co-workers at the time of the assault, plaintiff's claims against them also were barred by N.J.S.A. 34:15-8.

Plaintiff opposed the motions. In a certification dated May 8, 2006, plaintiff's attorney noted that three of the counts in the complaint asserted claims of negligence; however, the fourth count included a claim that defendant's conduct was "intentional behavior" that created a "virtual certainty" that Williamston would assault plaintiff. Counsel stated that while the workers' compensation exclusivity bar in N.J.S.A. 34:15-8 may require dismissal of the first three counts of the complaint, dismissal of the fourth count was not warranted because the "intentional wrong" exception in the statute applied.

In addition, plaintiff filed a supplemental certification, dated May 23, 2006, in which he stated that it was "amazing" that Genesis had taken the position that his claims were compensable under the Compensation Act. Plaintiff appended to his certification a letter from Genesis' compensation carrier, which had denied coverage, based on its view "that there was neither a specific accident nor any medical evidence that the injury is causally related to the worker[']s employment." Plaintiff asserted that he could "only imagine" that if the court were to dismiss his claims, Genesis would take the position in the Division that his claims were not compensable.

Plaintiff also submitted a certification dated May 24, 2006 from Victor Rivera (Rivera), who was one of his co-workers. Rivera asserted that before Williamston stabbed plaintiff, he was present on "various occasions" when Hansen and other employees "taunted and harassed Williamston about the previous encounter between Williamston and [plaintiff] and that Williamston had [gotten] the worst of the encounter with [plaintiff]." Rivera added:

I was also present on one occasion when Williamston became emotionally distraught and irate. At that time, Williamston threatened that he would stab [plaintiff] and actually pulled out a rather large and nasty looking knife. It was fairly soon after that incident that the stabbing took place.

The trial judge heard the motions on May 26, 2006. Plaintiff's attorney agreed that, assuming plaintiff's claims were compensable for workers' compensation purposes, the claims in the first three counts of the complaint were barred by N.J.S.A. 34:15-8 and should be dismissed. Counsel also did not oppose dismissal of the claims asserted against Coleman in the fourth count. However, plaintiff opposed dismissal of the claims in the fourth count as to Genesis and Hansen, arguing that he had presented sufficient evidence to raise a jury question as to whether the "intentional wrong" exception applied. Plaintiff maintained that these defendants had acted with knowledge that it was substantially certain that Williamston would injure plaintiff. The judge disagreed and entered orders on May 26, 2006 granting summary judgment to defendants and dismissing plaintiff's claims with prejudice. This appeal followed.

Plaintiff first argues that the judge erred because, viewing the evidence in a light most favorable to plaintiff, he has established all of the elements required to bring his claims against defendant within the "intentional wrong" exception to the workers' compensation exclusivity bar. We disagree.

In determining whether the judge erred in granting summary judgment, we apply the same standards applicable in the trial courts. Prudential Prop. Ins. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). We are satisfied from our review of the record that the judge correctly found that the "intentional wrong" exception in N.J.S.A. 34:15-8 does not apply to plaintiff's claims.

In Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 161, 177 (1985), the Court established a two-part test for determining whether particular claims come within the "intentional wrong" exception under N.J.S.A. 34:15-8. The plaintiff must prove that his or her employer acted or failed to act with knowledge that there was a "substantial certainty" of injury. Id. at 178. Courts also must determine whether the injury, and the circumstances in which it occurred, may "fairly be viewed as a fact of industrial employment, or [whether it is] plainly beyond anything the legislature could have contemplated as entitling the employee to recover only under the Compensation Act. Id. at 179. Concerning the first prong of this test, the Court observed that

the 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 wonton, but it is not an intentional wrong.

[Id. at 177 (quoting W. Prosser and W. Keeton, The Law of Torts, 5th ed. 1984).]

The Court added that what is required is "virtual certainty" of injury." Ibid.

The Court reaffirmed the Millison test in Laidlow v. Hariton Machinery Corp., 170 N.J. 602, 617 (2003). The Court stated that when an employer seeks dismissal of common law claims based on the workers' compensation bar in N.J.S.A. 34:15-8, the judge must address two questions.

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 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.

[Id. at 623.]

Here, the trial judge correctly found that, viewing the evidence in a light most favorable to plaintiff, a jury could not reasonably find that defendants acted with knowledge that there was a "substantial certainty" Williamston would assault plaintiff on May 15, 2004.

As stated previously, plaintiff conceded below that Coleman's conduct did not rise to the level of an "intentional wrong" under N.J.S.A. 34:15-8. As to Genesis and Hansen, we assume for purposes of our decision that plaintiff would be able to prove that these defendants were aware that Williamston committed an assault in 1998; Williamston had assaulted plaintiff in the workplace; Hansen and other Genesis workers "taunted" Williamston about that incident; and Williamston threatened to retaliate in some manner against plaintiff. However, these facts do not warrant a finding that there was a "substantial certainty" Williamston would carry out his threats and stab plaintiff with a seven-inch knife. Hansen and Genesis may have been negligent or even reckless in the circumstances, but their conduct does not constitute an "intentional wrong" under N.J.S.A. 34:15-8.

Plaintiff asserts in his brief that shortly before the incident on May 15, 2004, Genesis and Hansen knew that Williamston had "vowed revenge" and brandished a knife. The record does not support this assertion. As we pointed out previously, Rivera stated in his certification that Williamston threatened to stab plaintiff and took out a knife when making this treat but there is no evidence that Hansen or any other Genesis supervisor was present at the time, nor is there any evidence that Rivera brought this incident to Hansen's attention or the attention of any other Genesis supervisor.

Our conclusion that the "intentional wrong" exception does not apply to plaintiff's claims is supported by our decision in McGovern v. Resorts Int'l Hotel, 306 N.J. Super. 174 (App. Div. 1997). There, the plaintiff was employed by Resorts as a security supervisor. Id. at 176. She was shot attempting to prevent a robbery of money that was being moved from the casino to an armored car in the presence of the public. Ibid. The plaintiff brought an action against Resorts alleging that her claim came within the purview of the "intentional wrong" exception in N.J.S.A. 34:15-8. The record showed that the casino's personnel previously had complained about the money transfer procedure and the director of security had "expressed concerns" to upper management about the procedure. Id. at 177. The security director also believed that there was a "high probability" that some untoward incident might occur when monies were being transferred. Ibid.

Nevertheless, we held in McGovern that the workers' compensation exclusivity bar applied. The casino's actions, or failure to act, did not constitute an "intentional wrong" for purposes of N.J.S.A. 34:15-8. Id. at 180. We observed, "The facts indicate negligence or, at most, recklessness on the part of Resorts, and not a deliberate intention to harm its employees." Id. at 181. We concluded that, "The record will not support a finding that Resorts knew it was a 'virtual certainty' that plaintiff would be injured in the manner that she was." Ibid. The same conclusion applies here.

Plaintiff relies, however, upon our decision in Fisher v. Sears, Roebuck & Co., 363 N.J. Super. 457 (App. Div. 2003), certif. denied, 179 N.J. 310 (2003). In Fisher, a security guard employed by Sears was killed during an armed robbery while transferring cash at night. Id. at 461-62. The guard's estate brought a wrongful death claim against Sears and the trial court dismissed the action, finding that the action was barred by N.J.S.A. 34:15-8. We held that the "intentional wrong" exception did not apply in the circumstances. Id. at 473.

We noted that the night-time transfer of cash was apparently in contravention of a corporate directive limiting such transfers to the morning hours and required the presence of two security guards. Id. at 462. We stated, however, that there had been

no prior incidents of violence at the Hackensack facility to place the employer on notice of a real security problem. Neither were any complaints voiced by security personnel to management over the money transfer procedures actually followed, nor recommendations made to change or modify the practice. Significantly, [Sears] was out of compliance only with corporate policy, not governmental mandates of a regulatory or supervisory agency. And in the six months defendant was non-compliant, no problems were encountered or reported.

[Id. at 472.]

We held that the plaintiffs had not established a "virtual certainty" that the employee would be harmed by the money transfer procedures. Ibid.

Plaintiff asserts that the evidence lacking in Fisher is present here, specifically prior acts of violence and notice to the employer. But, as we pointed out in Fisher, when considering whether the worker's compensation bar applies, "no one fact is dispositive and the ultimate determination as to an intentional wrong" must be made based on the totality of the facts and circumstances. Id. at 469 (citing Laidlow, supra, 170 N.J. at 623). Thus, even though Williamston assaulted plaintiff in the past and management was aware that Williamston threatened to "get even with" plaintiff, a jury could not reasonably find that it was "virtually certain" that Williamston would carry out this threat.

Although we conclude that the judge correctly found that the "intentional wrong" exception in N.J.S.A. 34:15-8 does not apply here, we are convinced that the judge erred in dismissing plaintiff's claims with prejudice. Although Genesis argued otherwise in the trial court, it has taken the position in the Division that plaintiff's claims are not compensable under the Compensation Act. We were advised at argument that the Division has not yet resolved that issue.

In any event, the application of the exclusivity bar in N.J.S.A. 34:15-8 depends upon whether the claims are, in fact, compensable for workers' compensation purposes. If it is determined that plaintiff's claims are not compensable, N.J.S.A. 34:15-8 would not preclude plaintiff from asserting his claims in the Law Division. See Kristiansen v. Morgan, 153 N.J. 298, 312 (1998) (noting that common law remedies are "generally unaffected when the Division has concluded that the injury is not compensable" under the Compensation Act), modified on other grounds, 158 N.J. 681 (1999).

Therefore, plaintiff's claims should not have been dismissed with prejudice. Rather, the claims should have been dismissed without prejudice to their reinstatement in the event it is determined that the claims are not compensable under the Compensation Act. The orders entered by the trial court on May 26, 2006 shall be modified accordingly.

Affirmed as modified, and remanded to the trial court for entry of amended orders dismissing plaintiff's claims without prejudice to their reinstatement in the event it is determined that plaintiff's claims are not compensable under the Compensation Act.

 

Plaintiff alleged that Tibbett was Genesis' parent company, and Exel had acquired Tibbett. In this opinion, we will refer to Genesis, Tibbett and Exel collectively as "Genesis."

We are advised that Hansen died on October 30, 2005; however, the pleadings were never amended to reflect this fact.

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A-5674-05T2

September 25, 2007