LUIS SUAREZ v. LEE INDUSTRIES

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6436-05T36436-05T3

A-0787-06T3

LUIS SUAREZ,

Plaintiff-Appellant,

v.

LEE INDUSTRIES,

Defendant-Third Party

Plaintiff-Respondent,

v.

COSMETIC ESSENCE, INC.,

Third-Party Defendant.

______________________________________

LUIS SUAREZ,

Plaintiff-Respondent,

v.

LEE INDUSTRIES,

Defendant-Third Party

Plaintiff-Appellant,

v.

COSMETIC ESSENCE, INC.,

Third-Party Defendant-

Respondent.

______________________________________

 

Argued June 27, 2007 - Decided

Before Judges Skillman and King.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-1016-03.

Robert Peluso argued the cause for appellant in A-6436-05T3 (Murphy Peluso, attorneys; Mr. Peluso, on the brief).

Olivier J. Kirmser argued the cause for appellant Lee Industries in A-0787-06T3 and respondent Lee Industries in A-6436-05T3 (Miller & Lamastra, attorneys; Mr. Kirmser, on the brief).

John H. Maucher argued the cause for respondent Cosmetic Essence, Inc. in A-0787-06T3 (Mintzer Sarowitz Zeris Ledva & Meyers, attorneys; Mr. Maucher, on the brief).

PER CURIAM

Plaintiff Luis Suarez was employed by third-party defendant Cosmetic Essence, Inc. (Cosmetic), a cosmetics manufacturing company. Suarez' job responsibilities included pouring ingredients used to manufacture Cosmetics' products into opened-top mixing tanks. One of those tanks was a 2000 gallon tank manufactured by defendant Lee Industries, designated by Cosmetics as tank K6, which was approximately eleven feet tall and six-and-a-half feet in diameter. Cosmetics' standard operating procedure for pouring ingredients into this tank was to place the ingredients into a large drum, put the drum on a pallet located on a forklift, raise the forklift to the top of the tank, with the Cosmetics' employee responsible for mixing of the ingredients standing on the pallet, and then have the employee pour the drum into the tank. On February 23, 2010, while Suarez was pouring ingredients into the tank in accordance with this procedure, he fell headfirst into the tank. As a result, he suffered serious personal injuries.

Lee delivered the tank into which Suarez fell to Cosmetics in 1991 and modified the tank in 1994. The tank did not include any safety device to prevent a worker from falling into it. Instead, the operations manual Lee distributed with the tank recommended that the buyer install safety devices and offered such devices as an option at the buyer's request:

7. . . . Lee highly recommends the use of grates, or other safety methods, to assure solid objects will not be loaded into the vessel during agitator operation.

8. All agitators should have safety devices installed on the unit to help ensure safety to all operating personnel. These devices may include (but are definitely not limited to) limit switches, emergency stop buttons, safety grating, and tilting lock pins. These items are normally supplied by the user, but can be supplied by Lee if requested. Consult Lee if any safety controversies arise before an accident occurs. Don't take chances.

Cosmetics did not order any of the recommended safety devices from Lee or install such devices itself.

Suarez brought this personal injury action against Lee for the personal injuries he suffered when he fell into the tank. Suarez claimed that the tank was defective because it did not include safety devices required for safe use of the product. Suarez' product liability claim was supported by the opinions of Bartley Eckhardt, an engineering liability expert, who submitted a report and then was deposed.

Lee filed a third-party complaint against Cosmetics, which claimed that Cosmetics had committed an "intentional wrong" by failing to provide a safety platform for workers such as Suarez to use in pouring ingredients into the K6 tank and misusing the forklift to raise workers carrying ingredients to the top of the tank, and therefore could not rely upon the workers' compensation bar to tort liability. After completion of discovery, Cosmetics moved for a summary judgment dismissing Lee's third-party complaint, which the trial court granted.

Lee filed a motion for a summary judgment dismissing Suarez's complaint on two alternative grounds: (1) the tank manufactured by Lee was only a component part of the Cosmetics manufacturing process and therefore Lee could not be held liable for any unsafe condition created by Cosmetics' use of the tank; and (2) the opinion of Suarez's expert, Eckhardt, was a "net opinion" that could not support a finding that the tank manufactured by Lee was defective.

The trial court concluded that the question whether the tank is a component part or a finished product presented a question of fact to be determined by the jury and rejected Lee's motion for summary judgment on that theory. However, the court agreed with Lee's argument that Eckhardt's opinion that the tank Lee sold to Cosmetic was defective because it did not include the safety devices required to make the product safe was a "net opinion." Therefore, the court granted Lee summary judgment dismissing Suarez's complaint.

Suarez appeals from the summary judgment dismissing his complaint, and Lee appeals from the summary judgment dismissing its third-party complaint against Cosmetics. We now consolidate the appeals. We reverse the summary judgment dismissing Suarez' complaint. We affirm the summary judgment dismissing Lee's third-party complaint.

I

Initially, we note that the trial court granted summary judgment dismissing Suarez's complaint solely on the ground that the opinion of plaintiff's liability expert, Eckhardt, that the K6 tank was defective because it did not include safety devices reasonably required to protect workers such as Suarez was a "net opinion." Lee does not rely upon any alternative ground for affirmance of the summary judgment. Therefore, the only issue presented by Suarez's appeal is whether the trial court correctly concluded that Eckhardt's opinions regarding the defective design of the K6 tank were "net opinions."

"N.J.R.E. 702 requires that an expert's opinion be based on facts, data, or another expert's opinion, either perceived by or made known to the expert, at or before trial." Rosenberg v. Tavorath, 352 N.J. Super. 385, 401 (App. Div. 2002). "Under the 'net opinion' rule, an opinion lacking in such foundation and consisting of bare conclusions unsupported by factual evidence is inadmissible." Ibid. "The rule requires an expert 'to give the why and wherefore' of his or her opinion, rather than a mere conclusion." Ibid. (quoting Jimenez v. GNOC Corp., 286 N.J. Super. 533, 540 (App. Div.), certif. denied, 145 N.J. 374 (1996)); see also Creanga v. Jardal, 185 N.J. 345, 360 (2005).

Eckhardt's opinion that the tank manufactured by Lee was not reasonably safe was not a "net opinion" because it was based on facts and data perceived or made known to him and he explained the reasons for his opinion. Eckhardt examined the design drawings for the K6 tank and the tank itself, and he reviewed the depositions of Suarez and other Cosmetics employees involved in pouring ingredients into the tank. Eckhardt also reviewed the previously quoted part of Lee's operations manual relating to the need for installation of safety devices for safe use of the K6 tank. Furthermore, Eckhardt had personally worked with tanks and other vessels in several of the engineering positions in which he had been employed. In addition, Eckhardt spoke to a representative of another tank manufacturer, Hamilton Kettles, which generally provides gratings and other safety devices with its products. Eckhardt also referred to sections of a treatise on product safety which state:

One of the most fundamental practical applications of safety engineering thinking concerns the provision of guards and other physical safeguarding means as original equipment by the designer-manufacturer. Historical safety literature has always been specific in recommending that safety devices be integral, rather than optional, retrofitted, or generally non-standard items, modifications, or afterthoughts.

. . . .

. . . Either a basic product is safe or unsafe as designed, built, and sold. You cannot delegate safety to the customer through options, if such safety features were economically capable of being built-in OEM devices.

Based on his review of this data and his own experience, Eckhardt reach the following conclusions in his expert report:

8.4 It would have been reasonable and feasible for the manufacturer to have guarded the hazardous rotating parts and to prevent persons from falling into the kettle. Providing a safety grating would not have imposed a significant cost penalty upon the manufacturer.

8.5 Lee's failure to guard hazardous rotating parts and to prevent persons from failing into the kettle is a design defect and was a cause of this incident.

8.6 Lee's failure to warn CEI on their installation drawings of the necessity for safety features that would have prevented Suarez's injury was a cause of Suarez's injury.

8.7 Lee's failure to warn CEI on their installation drawings of the necessity for safety features that would have prevented Suarez's injury deprived the employer of the information needed to safely use the kettle.

8.8 Lee Industries provided hinged covers without safety grates and/or interlocks.

8.9 Lee Industries' failed to provide a product that afforded Suarez protections afforded by like manufacturers making similar products which was a cause of Suarez's injury.

8.10 Lee Industries' failure to provide applications engineering to help ensure a safe product to the customer denied Suarez protections afforded by like manufacturers making similar products which was a cause of Suarez's injury.

Eckhardt expanded upon these conclusions at his deposition, which was submitted to the trial court in connection with Lee's motion for summary judgment:

Q. . . . [A]re there any requirements or standards that require the manufacturer to provide a safety grate?

A. In my opinion the state of the industry as witnessed by the actions of Hamilton Kettle, is to provide a safety grate with the kettle and an interlock on the safety grate as well as a cover. And this is the equivalent of having a screen door on an entry doorway, so that you can open the lid of the kettle, pour material in through the safety grate, but not fall in and have an interlock on the safety grate that then if the safety grate is removed out of the way, at the very least power is shutoff to the agitator assembly.

. . . .

Q. . . . [D]uring the course of your employment as an engineer, you have seen safety grates used in various manufacturing facilities, correct?

A. Yes, I have. And also in cement motor mixers that are used on construction sites. This is a every day aspect of that.

Q. In your experience as an engineer, you would have seen those safety grates used predating 1994 or even 1991. Is that correct?

A. Oh, yes.

In concluding that Eckhardt's opinions were a "net opinion," the trial court stated that Eckhardt had not provided "any factual information that would enable the court or a jury to discern what is the industry standard." However, an expert is not required to identify an "industry standard" to express an opinion that a product is not reasonably safe because it was designed without safety devices that were feasible to include in the product. See Mettinger v. W.W. Lowensten, Inc., 292 N.J. Super. 293, 311 (App. Div. 1996), aff'd on other grounds, 153 N.J. 371 (1998). In fact, where there is an industry standard that can be viewed as falling below ordinary care, it is within the jury's province to "reject that custom as the standard . . . and reach its own conclusion based on what is reasonable under all the circumstances." Estate of Elkerson v. N. Jersey Blood Ctr., 342 N.J. Super. 219, 235 (App. Div.), certif. denied, 170 N.J. 390 (2001); see also Rosenberg, supra, 352 N.J. Super. at 403 (noting that "[e]vidential support for an expert opinion is not limited to treatises or any type of documentary support, but may include what the witness has learned from personal experience."). Thus, even if the evidence indicated that no manufacturer of tanks similar to the K6 includes grates or other safety devices with its product, a jury could conclude based on expert opinion testimony such as was provided by Eckhardt that the K6 tank was not "reasonably fit, suitable, and safe for its intended or foreseeable use[.]" Waterson v. Gen. Motors Corp., 111 N.J. 238, 267 (1988); see Michalko v. Cooke Color & Chem. Corp., 91 N.J. 386, 397 (1982); Bexiga v. Havir Mfg. Corp., 60 N.J. 402, 410-11 (1972). Therefore, the trial court erred in granting Lee summary judgment dismissing Suarez's complaint based on its conclusion that Eckhardt's opinions were net opinions.

II

The Workers' Compensation Act, N.J.S.A. 34:15-1 to -128, established what "has been described as 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." Laidlow v. Hariton Mach. Co., 170 N.J. 602, 605 (2002). However, an employee is not foreclosed from pursuing a common law tort action against the employer if the employer's conduct constituted an "intentional wrong." N.J.S.A. 34:15-8.

To maintain a common law action under N.J.S.A. 34:15-8, an employee is not required to show that the employer had a subjective desire to harm its employees. Laidlow, supra, 170 N.J. at 612-14. However, the employee must satisfy the two prong test 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. First, the employee must satisfy the "conduct" prong by alleging sufficient facts to show 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. Second, the employee must satisfy the "context" prong by 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 was "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 prongs, the court must consider "the totality of the facts contained in the record[.]" Id. at 623.

In applying the conduct prong of the tests for finding an intentional wrong, "the 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. We must demand a virtual certainty." Millison, supra, 101 N.J. at 178. Although "the absence of a prior accident does not preclude a finding of an intentional wrong[,] [r]eports of prior accidents and 'close-calls,' are . . . evidence 'that may be considered in the substantial certainty analysis.'" Crippen v. Cent. Jersey Concrete Pipe Co., 176 N.J. 397, 408 (2003) (quoting Laidlow, supra, 170 N.J. at 621-22). Moreover, a court should not automatically find "that an intentional wrong has been committed whenever an employer violates an OSHA regulation." Ibid.

We agree with the trial court's conclusion that the evidence presented by Lee in opposition to Cosmetic's motion for summary judgment could not support a jury finding that Cosmetic's procedure for pouring ingredients into the K6 tank was substantially certain to cause injury or death to one of its employees. Cosmetics had been using a forklift to raise employees pouring ingredients into the K6 tank for approximately seven years before Suarez' accident. During that period, there had not been any accident in which a person fell from the forklift into the tank or onto the ground next to the tank. Furthermore, there was no evidence of any "close call" in which such an accident had almost occurred. The only accident involving the tank occurred when the cover fell on a worker's head, which was unrelated to the dangerousness in Cosmetics' mixing operation upon which Suarez' claim is based. Suarez himself testified at his deposition that he had been pouring ingredients from the forklift into the K6 tank for two years before his accident and that there had never been any occasion when he had almost fallen. Nor was he aware of any such incident involving any other Cosmetics employee. Moreover, there is no evidence that OSHA ever cited Cosmetics for any safety violation in connection with its operation of the K6 tank before Suarez's accident. Compare Crippen, supra, 176 N.J. at 409-10; Mull v. Zeta Consumer Prods., 176 N.J. 385, 392 (2003).

Although Lee's engineering expert stated in his report that Cosmetics' procedure for pouring ingredients into the K6 tank violated various OSHA regulations, he did not express an opinion that this procedure was substantially certain to result in the injury or death of a Cosmetics' worker. He only stated that this procedure created "substantial hazards associated with working on an elevated surface without the benefit of safety railings." Therefore, even though the evidence relied upon by Lee could support a finding that Cosmetics' procedure for pouring ingredients into the K6 tank "amount[ed] to deliberately taking risks with [its] employees' health, . . . the mere knowledge and appreciation of a risk -- even the strong probability of a risk -- will come up short of the 'substantial certainty' needed to find an intentional wrong resulting in avoidance of the exclusive-remedy bar of the compensation statute." Millison, supra, 101 N.J. at 179.

Because we conclude that Lee failed to present evidence that could support a finding that there was a substantial certainty Cosmetics' procedure for pouring ingredients into the K6 tank would cause death or injury to one of its employees, which is required to satisfy the "conduct" test for application of the "intentional wrong" exception to the workers compensation bar on employer tort liability, there is no need for us to consider the "context" test for application of this exception.

 
Accordingly, the order dismissing Suarez's complaint is reversed. The order dismissing Lee's third-party complaint against Cosmetics is affirmed.

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A-6436-05T3

July 27, 2007