RICHARD BELLOMY v. JAMES A. ALAMO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2413-06T22413-06T2

A-2636-06T2

RICHARD BELLOMY,

Plaintiff-Appellant,

v.

JAMES A. ALAMO, FCI TRANSPORT,

INC.,

Defendants-Respondents.

______________________________

FLOYD THOMAS and ANDREA THOMAS,

Plaintiffs-Appellants,

v.

JAMES A. ALAMO, FCI TRANSPORT,

INC.,

Defendants-Respondents.

______________________________

 

Argued September 9, 2008 - Decided

Before Judges Wefing, Yannotti and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-375-04 and L-466-04.

Eugene M. Mulvaney argued the cause for appellant, Richard Bellomy (Mulvaney, Coronato & Brady, attorneys; Mr. Mulvaney and Kevin M. Stankowitz, on the joint brief).

Kevin M. Stankowitz argued the cause for appellants, Floyd Thomas and Andrea Thomas (Rosenberg, Kirby, Cahill & Stankowitz, attorneys; Eugene M. Mulvaney and Mr. Stankowitz, on the joint brief).

Colleen M. Ready argued the cause for respondents (Margolis Edelstein, attorneys; Ms. Ready and Peter S. Cuddihy, on the brief).

PER CURIAM

Plaintiffs Richard Bellomy and Floyd Thomas were employees of defendant FCI Transport, Inc. (FCI), a garbage hauling business. In February 2002, Bellomy and Thomas suffered serious injuries during the course of their employment when the garbage truck in which they were riding veered off the road and hit a tree, crushing both of them in the cab.

In February 2004, plaintiffs filed personal injury suits against FCI under the "intentional wrong" exception to the Workers' Compensation Act's bar in N.J.S.A. 34:15-8. In October 2006, FCI moved for summary judgment pursuant to that statute. On January 5, 2007, the trial court entered an order granting summary judgment in favor of FCI and dismissing the complaints with prejudice. Both plaintiffs appeal and their appeals have been consolidated for our consideration.

We summarize the relevant evidence as established by the depositions and exhibits submitted on the motion. When plaintiffs reported for work on February 16, 2002, FCI operations supervisors David Phillips and Corey Van Note informed them that their driver that day would be James Alamo. Plaintiffs had ridden with Alamo on previous occasions and had incurred no problems.

The garbage truck to which plaintiffs and Alamo were assigned had a cab equipped with two seats, each with a seat belt. There was no seat or seat belt for an additional passenger. The practice was for plaintiffs to ride on the outside of the truck during the actual collection of garbage. However, if the truck had to travel some distance between routes, plaintiffs rode inside the cab. Therefore, when riding in the cab, plaintiffs had two options: (1) they both could stand in the passenger area of the cab with the seat flipped upright and without the use of a seatbelt; or (2) one could sit in the seat with the seatbelt and the other could sit on top of the engine cover, an elevated hump between the two seats.

Plaintiffs departed the FCI facility with Alamo driving. As they traveled, plaintiffs noted that Alamo was nodding off and appeared to fall asleep while driving; he veered the truck into some garbage cans and missed some of the pick-up stops. Plaintiffs contended that they made continual efforts to keep Alamo focused on his driving throughout the morning.

While on one of their routes, a call came over the radio from Phillips advising Alamo that residents on an earlier route were complaining of missed stops. Phillips instructed Alamo to return to those residences and collect the trash.

In order to return to the residences in question, Alamo had to drive downhill on a narrow winding road. This required both plaintiffs to ride inside the cab. Neither plaintiff chose to sit on the hump. Rather, they both decided to stand in the passenger compartment area of the cab without being belted.

As Alamo drove down the winding road, he lost control of the truck, causing it to leave the roadway and collide with a tree. Alamo sustained minor injuries and was able to walk away from the accident site. However, plaintiffs were trapped inside the crushed passenger compartment area and had to be freed by the fire department. They each sustained massive trauma to their legs; Bellomy underwent ten surgeries to repair the damage to his legs and Thomas' left leg was amputated above his knee.

Bellomy testified that prior to the accident, he was generally assigned once a week to a two-seated truck along with a driver and a second trash loader. Bellomy also testified that on prior occasions when he was assigned to ride with Alamo, he always felt safe. On the morning of February 16, 2002, Bellomy stated that Alamo seemed tired and distracted but did not appear to be intoxicated.

Thomas testified that on those occasions when three workers rode in a truck, one would sit on the hump and the other would be belted in the passenger seat. Thomas further stated that, on the morning of the accident, he did not initially notice anything in Alamo's behavior that concerned him.

Phillips testified that FCI would sometimes assign three workers to a truck when a large collection route was scheduled. He had never received any complaints about three workers being assigned to one garbage truck. Moreover, Phillips testified that prior to this accident, he was unaware of any FCI employee being injured on the job as a result of having three workers in one truck.

Phillips further testified that on the morning of the accident, he noticed "nothing out of the ordinary" with Alamo's behavior when he reported to work. Alamo did not appear incoherent nor did he have any difficulty walking. On prior occasions, according to Phillips, Alamo had been involved in accidents.

FCI's Director of Safety, William Olsen, testified that he is responsible for the company's vehicle maintenance program and for enforcement of Department of Transportation (DOT) regulations. Olsen was not aware of any DOT regulation that "would dictate against" two workers sharing the passenger seat in the cab of the garbage truck. The company "had never had a problem with it before."

Plaintiffs' engineering expert, Paul Stephens, opined "[w]ithin the bounds of reasonable engineering certainty . . . that . . . FCI Transport's conduct on the day of the incident created a substantial certainty that an incident would occur and such conduct was a proximate cause of the Bellomy/Thomas incident." Stephens concluded that FCI had a "financial incentive . . . to service long routes with three-man rather than two-man crews." Stephens also found Bellomy's deposition testimony "consistent with FCI having been aware that Mr. Alamo was either ill, medicated, fatigued, drowsy, and/or impaired prior to the truck leaving the company's yard." Allowing Alamo to drive the garbage truck in such a condition, according to Stephens, "created a situation where there was a substantial certainty of a refuse truck related accident with adverse effects on either the general public or the work crew."

Defendant's engineering expert, William Meyer, opined that "the subject accident and associated injuries to [the plaintiffs] did not result from any impropriety or shortcoming on the part of FCI. Evidence indicates that the accident resulted from driver error on the part of Mr. Alamo." Contrary to Stephens' findings, Meyer concluded that there was "no evidence indicating that Mr. Alamo exhibited abnormal behavior on the morning of the occurrence while at the FCI facility, or while traveling from the facility to the collection route that would have alerted FCI management to any alleged impaired condition."

In granting FCI's motion for summary judgment, the trial court found that plaintiffs' claims were barred under N.J.S.A. 34:15-8, which provides in pertinent part:

If an injury . . . is compensable under this article, a person shall not be liable to anyone at common law or otherwise on account of such injury . . . for any act or omission occurring while such person was in the same employ as the person injured . . . except for intentional wrong.

[Emphasis added.]

Citing Laidlow v. Hariton Mach. Co., Inc., 170 N.J. 602 (2002), and Fisher v. Sears, Roebuck & Co., 363 N.J. Super. 457 (App. Div. 2003), certif. denied, 179 N.J. 310 (2004), the trial court ruled as follows:

Now, Laidlow tells the Court to do the following, that is, I must look at the facts most favorably to the employee and determine whether a jury can determine that the employer acted with knowledge that it was substantially certain that a worker would suffer an injury.

And, of course, there's a second prong of the particular analysis which counsel has pointed out to the Court, and that is to determine whether or not this particular factual pattern of the case constitutes part of industrial life and outside of the purview of the conditions set by the legislature with respect to immunizing the Workers' Compensation [p]rovision.

. . . .

I find that the facts of the case do[] not rise to the level of the intentional tort provision exception of the Workers' Compensation [Act].

There's no question that this particular factual pattern would lead one to believe that the awareness or the fact that the employer should have been aware that there's going to be a chance of some injury would be evidence of negligence and at best recklessness. But it does not constitute a . . . situation where there would be substantial certainty that a worker were to be injured. And, therefore, the employer is entitled to the protection of the Workers' Compensation Statute . . . .

On appeal, plaintiffs raise several grounds in support of their argument that the trial court erroneously granted summary judgment to defendant. We have considered their contentions in light of the record and the applicable law. For the reasons that follow, we affirm.

By way of background, it is worth noting that when the Legislature adopted the laws presently embodied in our workers' compensation statutes, N.J.S.A. 34:15-7 to -35.22, it became the "declared public policy" of New Jersey to "preclude[] any other recovery or measure of compensation [by an injured worker] in cases governed by its terms." New Amsterdam Cas. Co. v. Popovich, 18 N.J. 218, 226 (1955). The statutory compensation scheme represents a "'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, supra, 170 N.J. at 605.

In furtherance of this policy, our courts have repeatedly enforced the compensation statute's exclusivity feature and have found the statute's "intentional wrong" exception applicable in only rare and extreme factual circumstances. Crippen v. Cent. Jersey Concrete Pipe Co., 176 N.J. 397, 409 (2003) (allowing a wrongful death action where "a jury reasonably could conclude that [the employer] had knowledge that its deliberate failure to cure OSHA violations would result in a substantial certainty of injury or death to one of its employees."); Mull v. Zeta Consumer Prods., 176 N.J. 385 (2003) (allowing an employee to sue an employer that: (1) removed safety interlock switches; (2) made other dangerous alterations to a workplace machine; (3) experienced a prior accident with the machine; and (4) had prior unabated OSHA violations); Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 161 (1985) (applying intentional wrong exception where proofs circumstantially showed that employer had deliberately concealed knowledge of its employees' work-related disease arising from exposure to asbestos).

An injured worker need not establish that the employer "subjectively desired to harm him" in order to satisfy the "intentional wrong" exception. Laidlow, supra, 170 N.J. at 613. However, an employee seeking to recover tort damages under this exception must prove two elements:

(1) the employer must know that his actions are substantially certain to result in injury or death to the employee, and (2) the resulting injury and the circumstances of its infliction on the worker must be (a) more than a fact of life of industrial employment and (b) plainly beyond anything the Legislature intended the Workers' Compensation Act to immunize.

[Id. at 617.]

The first prong, known as the "conduct" prong, may present factual issues for a jury if the evidence, "when viewed in a light most favorable to the employee, . . . could lead a jury to conclude that the employer acted with knowledge that it was substantially certain that a worker would suffer injury." Id. at 623. If so, the judge must turn to the "context" prong, and "determine whether, if the employee's allegations are proved, they constitute a simple fact of industrial life or are outside the purview of the conditions that the Legislature could have intended to immunize under the Workers' Compensation bar." Ibid.; see also Millison, supra, 101 N.J. at 178-79. This latter inquiry is purely a question of law for the court. Ibid.

"Thus, if the substantial certainty standard presents a jury question and if the court concludes that the employee's allegations, if proved, would meet the context prong, the employer's motion for summary judgment should be denied; if not, it should be granted." Laidlow, supra, 170 N.J. at 623.

With this background in mind, we first consider plaintiffs' argument that the trial court failed to follow the appropriate legal standard in granting summary judgment to FCI. Specifically, plaintiffs contend that the trial court failed to cite Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520 (1995).

We concur that the trial court did not cite the Brill standard for summary judgment in his decision. Under that standard,

a determination whether there exists a "genuine issue" of material fact that precludes summary judgment requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party. . . . [W]hen the evidence "is so one-sided that one party must prevail as a matter of law," the trial court should not hesitate to grant summary judgment.

[Id. at 540 (citation omitted).]

However, the trial court properly cited Laidlow, supra, for the proposition that it must "look at the facts most favorably to the employee and determine whether a jury can determine that the employer acted with knowledge that it was substantially certain that a worker would suffer an injury." This statement is consistent with Laidlow's instruction, noted earlier, that the first inquiry is whether "the substantial certainty standard presents a jury question. . . ." Laidlow, supra, 170 N.J. at 623. For the reasons stated, the trial court concluded plaintiffs had failed to present a jury question.

As we have often recognized, an appellate court reviews a grant of summary judgment de novo, applying the same standard governing the trial court. Ponte v. Overeem, 337 N.J. Super. 425, 427 (App. Div. 2001), rev'd on other grounds, 171 N.J. 46 (2002). The issue here is whether, granting plaintiffs "all legitimate inferences" from the evidence submitted, they have established a "genuine issue as to any material fact challenged" that "would require submission of the issue to the trier of fact." R. 4:46-2(c). To examine that issue, we consider plaintiffs' evidence in its most favorable light.

First, plaintiffs contend that the lack of a third seat and seatbelt in the truck cab constituted evidence that FCI "knowingly disabled or nullified safety devices designed for [plaintiffs'] protection" in violation of statute, safety codes and company policy. However, the record established that plaintiffs and other employees of FCI had routinely serviced their routes in this manner without incident. Under such circumstances, we conclude that plaintiffs failed to establish that FCI knew that these particular actions were "substantially certain to result in injury or death to [plaintiffs] . . . ." Laidlow, supra, 170 N.J. at 617.

In addition, plaintiffs contend that FCI "ignored" Alamo's "poor safety record" as well as "his poor physical condition, which was known on the morning of this accident . . . ." Plaintiffs also claim that FCI failed to take action "to protect its workers when advised of the dangerous behavior of its driver later than morning, but before the accident." However, Bellomy testified that he did not believe Alamo was intoxicated that morning. Phillips also testified that he noticed "nothing out of the ordinary" with Alamo's behavior that morning. Moreover, the record is devoid of any evidence that FCI received information that Alamo engaged in "dangerous behavior . . . later that morning but before the accident." FCI did receive complaints from customers about missed stops; however, when Phillips radioed Alamo and plaintiffs to return to those residences to collect the trash, neither plaintiff complained to Phillips about Alamo's behavior at that time.

Thus, notwithstanding the lack of a specific citation to Brill, supra, we nonetheless conclude the trial court applied the appropriate standard in granting summary judgment. The "alleged disputed issue" was whether plaintiffs' "evidential materials" were "sufficient to permit a rational factfinder to find" FCI liable under the intentional wrong exception in the statute. Brill, supra, 142 N.J. at 540. The trial court properly resolved this issue in defendant's favor.

Plaintiffs next contend that the trial court erred in granting FCI summary judgment because a fact question existed as to "whether [defendant's] conduct constituted an intentional wrong[,]" and because the summary judgment was inconsistent with "the published legal opinions of our highest court . . . ." We disagree.

Plaintiffs' arguments ignore the consistent trend of our courts in holding the "intentional wrong" exception in N.J.S.A. 34:15-8 "applicable in only rare and extreme factual circumstances." Kibler v. Roxbury Bd. of Educ. 392 N.J. Super. 45, 52-53 (App. Div.), certif. denied, 192 N.J. 292 (2007). The facts of this case are clearly distinguishable from those circumstances in which the "intentional wrong" exception was deemed applicable because the employers had knowingly disengaged safety devices and/or willfully ignored OSHA warnings prior to the employees' accidents or illness. See Crippen, supra, 176 N.J. at 409; Mull supra, 176 N.J. at 392-93.

We reject as without merit plaintiffs' contention that the trial court erroneously relied upon our decision in Fisher, supra, as support for its decision to grant summary judgment to FCI. As plaintiffs point out, Fisher is factually distinguishable in that the employee was fatally injured by third parties, namely two armed robbers who accosted decedent while he was transporting cash proceeds in the course of his employment. On those facts, we held that "there was an intervening-superceding cause that affected both the substantial certainty and context prongs." Fisher, supra, 363 N.J. Super. at 471.

The trial court did not rely upon Fisher for its factual context. Rather, the trial court properly cited Fisher as posing the fundamental inquiry as to whether an employer "knows that the consequences of its acts are substantially certain to result in harm or injury to an employee." Id. at 465.

Here, as in Fisher, "we find the conduct prong not established as a matter of fact, [and] we conclude the context prong fails as a matter of law." Id. at 472. We likewise conclude that the type of "deception and blatant disregard for plaintiff[s'] well-being" that was present in the previously cited cases, is "[m]issing from the facts here . . . ." Id. at 473.

As we noted in Fisher, and as the trial court concluded here, FCI's conduct, "although perhaps evidential of negligence or even recklessness," id. at 473, does not establish FCI's knowledge that its "actions [were] substantially certain to result in injury . . . to the employee, . . . [or were] plainly beyond anything the Legislature intended the Workers' Compensation Act to immunize." Laidlow, supra, 170 N.J. at 617.

We have considered plaintiffs' other contentions and find them to be without sufficient merit to warrant further discussion in this opinion. R. 2:11-3(e)(1)(E).

Affirmed.

 

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A-2413-06T2

October 14, 2008