CRAIG KANE v. COUNTY OF BURLINGTON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2342-10T3

CRAIG KANE,

Plaintiff-Appellant,

and

DIANA KANE, his wife,

Plaintiff,

v.

COUNTY OF BURLINGTON,

Defendant-Respondent.

________________________________________________________________

December 9, 2011

Submitted November 29, 2011 - Decided

Before Judges Fisher and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-1946-08.

Ginsberg & O'Connor, P.C., attorneys for appellant (Gary D. Ginsberg, on the brief).

Capehart & Scatchard, P.A., attorneys for respondent (Betsy G. Ramos, of counsel; LaTonya N. Bland, on the brief).

PER CURIAM

Plaintiff Craig Kane appeals from a December 3, 2010 Law Division order that granted the summary judgment motion of defendant, the County of Burlington, thereby dismissing plaintiff's work-related personal injury complaint. The judge reasoned that none of the facts produced by plaintiff were sufficient to defeat the exclusive remedy provision of a portion of the Workers' Compensation Act (Act), N.J.S.A. 34:15-1 to -142. In particular, the judge concluded that plaintiff failed to establish a genuine issue of material fact on whether defendant's conduct constituted an "intentional wrong" within the meaning of the Act. We affirm.

I.

Plaintiff was hired by the County of Burlington as a maintenance mechanic and heating, air conditioning and ventilation (HVAC) mechanic in 1993. He also owned his own mechanical business, Evesham Mechanical, L.L.C., and worked for a local mental health center, where he performed a variety of maintenance, mechanical and HVAC tasks. As a licensed mechanic, plaintiff was familiar with the methods for installing compressors on roof tops. On more than twenty occasions, he had hoisted compressors to the roof of County buildings by hand, although none of the compressors he had hoisted by hand weighed more than fifteen pounds. Whenever plaintiff installed heavier compressors, the compressor was lifted to the roof by a crane. The decision whether to use a crane, or instead hoist the compressor up to the roof by hand, was made by plaintiff's immediate County supervisor, Ken James.

Plaintiff was in excellent physical condition, having been trained by a professional weightlifter. He was "able to dead lift 570 pounds and incline bench 375 pounds, . . . curl 135 pounds, hammer curl 55 pounds, . . . leg press . . . 800 pounds, [and] decline press 360 [pounds]."

Toward the end of June 2006, James issued a work order directing plaintiff to install a 121-pound compressor onto the roof of the Burlington County Library. James initially assigned plaintiff to install the compressor by himself; however, Gary Watkins, a County Assistant Superintendent, decided to assign one of plaintiff's co-workers, Donald Staiger, to assist plaintiff because of the weight of the compressor.

When plaintiff and Staiger arrived at the work site on the morning in question, June 26, 2009, and saw there was no crane present, neither man raised an objection. Later asked why he had not done so, plaintiff responded, "I'm not there to disagree with management, my job is to do what I am instructed to do." He testified that when he arrived at the Library, it was his opinion he could hoist the compressor, "[o]r [he] would not have attempted the job." He commented, "I am a professional, I should be able to know my job. I should not be told how to do my job. I'm trained, I'm certified, that's why they hired me, for my knowledge and my expertise."

Plaintiff and Staiger decided that plaintiff would stand on the roof of the Library to pull the compressor up using a rope, while Staiger remained on the ground to guide the compressor so it would not get caught on the overhang of the roof. While hoisting the compressor, the rope slid from plaintiff's hands, causing him to fall backward, hit his head and sustain injury.

Plaintiff's workers' compensation claim petition was approved, and he began receiving benefits. On June 26, 2008, he filed a personal injury complaint against the County in the Law Division, alleging that the County, through its agents and employees James and Watkins, acted recklessly by "intentionally placing [him] in [a]n unsafe job detail with minimum safety equipment[,] and knew or should have known that the hoisting of a compressor to the roof was certain to cause serious injury or death to an employee."

Staiger testified at his deposition that he did not recall any discussions regarding Occupational Safety and Health Administration (OSHA) guidelines because it was "kind of hush," by which he meant that a person could get "written up for that, because you're not supposed to refuse a job." He felt his employment would be at risk if he refused to complete a job assignment, although he could not be certain because he "never refused a work order." Staiger did not know of anyone who had ever been disciplined for insubordination.

James acknowledged that hoisting a compressor weighing more than seventy-five pounds was "typically a two man job" for safety reasons, and that one person hoisting a 120-pound compressor alone "wouldn't be safe." James admitted that he maintained a grudge against plaintiff because plaintiff once reported him to management for using racial slurs on the job, which resulted in James being suspended without pay for twelve days. James maintained his innocence, describing plaintiff as "a liar."

Like James, Watkins was asked at his deposition whether the hoisting of heavy compressors onto roofs was safe. He maintained that two men could safely lift a 150-pound compressor onto a roof without a crane. Bruce Doty, the Superintendent of Buildings and Grounds for Burlington County, testified that compressors weighing over 100 pounds would typically be lifted to the roof with "a crane or some type of chain and hoist," although he maintained that two people could safely lift a 120-pound compressor if both men stood on the roof raising the compressor with a rope "hand-over-hand."

Plaintiff's expert, Vince Gallagher of Safety Research, Inc., opined that plaintiff's method of hoisting the compressor was "extremely dangerous," and that the ladder method1 recommended by both Watkins and James was "more dangerous," based on the weight of the compressor, the lack of fall protection on the roof and the inability of the worker on the ladder to maintain three-point contact. Gallagher concluded that the use of a crane would have "eliminate[d] the hazards involved with manually handling th[e] compressor." He opined:

Therefore, they [Watkins and James] knowingly assigned [plaintiff] and Staiger to perform very dangerous work. It is my opinion that they had to have known of the risk factors and dangers associated with the work that they assigned. It is my opinion that they knew that this work was very dangerous and that there was a substantial certainty that it would eventually lead to serious, catastrophic injury or death. It is my opinion that their conduct showed a conscious disregard for a risk that was substantially certain to lead to catastrophic injury or death.

At the conclusion of pretrial discovery, the County moved for summary judgment, arguing that plaintiff's proofs did not raise a genuine issue of material fact sufficient to overcome the exclusive remedy provision of the workers' compensation statute. In particular, the County asserted that viewing the facts in the light most favorable to plaintiff, a reasonable jury could not find that James or Watkins committed an "intentional wrong" within the meaning of the applicable statute and caselaw. At the conclusion of oral argument, the judge denied the County's motion. The County subsequently filed a motion for reconsideration, which the judge granted on December 3, 2010. The judge reasoned:

[I]f you read Millison [v. E.I. Du Pont de Nemours & Co., 101 N.J. 161 (1985)], Millison says that, "[t]he dividing line between negligence or reckless conduct on the one hand and intentional wrong on the other had to be drawn with caution so that the statutory framework of the [A]ct, that is the immunity provisions of the [A]ct, were not circumvented simply because a known risk later blossomed into reality."

. . . .

So what I'm saying is that I was wrong in my first decision in denying the motion and if I take this one paragraph from Millison it hits me like a sledge hammer that I was wrong.

There has to be -- simply because a known risk blossomed into reality [is insufficient]. . . . [H]ence, in order to meet the standard the Court further stated, "[w]e must demand a virtual certainty. For that matter, gross negligence by an employer, or a lack of concern for an employee's safety, is insufficient to remove the cloak of immunity."

And I think that's what we have here . . . . [I]t's not enough to pierce the cloak of immunity. And I'm reversing my decision and granting the summary judgment.

II.

A court shall grant summary judgment "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). An issue of fact is considered genuine "only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." Ibid.

The trial court must determine whether the evidence presented, "when viewed in the light most favorable to the non-moving party," is "sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Where "there exists a single, unavoidable resolution of the alleged disputed issue of fact, that issue [is] insufficient to constitute a 'genuine' issue of material fact for purposes of Rule 4:46-2." Ibid. Credibility determinations, however, must be reserved for trial. Ibid.

In reviewing a trial court's grant of summary judgment, this court applies the same standard. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). The trial court's legal conclusions are subject to de novo review. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

The Act represents "a[n] historic trade-off whereby employees relinquished their right to pursue common-law remedies in exchange for automatic entitlement to certain, but reduced, benefits whenever they suffered injuries by accident arising out of and in the course of employment." Basil v. Wolf, 193 N.J. 38, 54 (2007) (quoting Millison, supra, 101 N.J. at 174). The Act "renders the workers' compensation remedy an exclusive one." Ibid. See also N.J.S.A. 34:15-8.

However, the Act exempts from this rule injury or death that results from the employer's "intentional wrong." N.J.S.A. 34:15-8 provides:

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

[(Emphasis added).]

Under the "intentional wrong" exception, a plaintiff may pursue common law remedies if he or she satisfies the following two-prong test:

(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.

[Laidlow v. Hariton Mach. Co., 170 N.J. 602, 617 (2002).]

An employer's "'mere knowledge and appreciation of a risk-- something short of substantial certainty--is not intent.'" Millison, supra, 101 N.J. at 177 (citation omitted). Even an employer who requires his employee to perform a task that contains "'an appreciable risk of harm'" has not committed an intentional wrong. Ibid. (citation omitted). Although the risk to the employee is "'great,'" the employer's conduct "'may be characterized as reckless or wanton, but it is not an intentional wrong.'" Ibid. (citation omitted). The Court emphasized in Millison that "if 'intentional wrong' is interpreted too broadly, this single exception would swallow up the entire 'exclusivity' provision of the Act, since virtually all employee accidents, injuries, and sicknesses are a result of the employer . . . intentionally acting to do whatever it is that may or may not lead to eventual injury[.]" Ibid. The Court emphasized:

Thus in setting an appropriate standard by which to measure an "intentional wrong," we are careful to keep an eye fixed on the obvious: the system of workers' compensation confronts head-on the unpleasant, even harsh, reality but a reality nevertheless that industry knowingly exposes workers to the risks of injury and disease.

[Ibid.]

Applying that rationale, the Court held in Millison that the employer committed an intentional wrong sufficient to overcome the workers' compensation bar when the company instructed its staff physicians to "fraudulently conceal[]" from the plaintiffs "the fact that they were suffering from asbestos-related diseases, thereby delaying their treatment and aggravating their existing illnesses." Id. at 181. In concluding that such conduct constituted an "intentional wrong," the Court reasoned that such conduct went "well beyond failing to warn of potentially-dangerous conditions or intentionally exposing workers to the risks of disease." Id. at 182. The Court noted that while "tolerating in the workplace conditions that will result in a certain number of injuries or illnesses" was insufficient to defeat the workers' compensation bar, "actively misleading the employees who have already fallen victim to those risks of the workplace" did, in contrast, constitute an intentional wrong because "fraudulent concealment of diseases already developed is not one of the risks an employee should have to assume." Ibid. Such "intentionally-deceitful action" is sufficient to overcome the workers' compensation bar. Ibid.

Almost twenty years later, in Laidlow, the Court reached a similar result when it held that deliberately removing a safety guard on machinery even after employees had been injured, and only installing the safety guard when OSHA inspectors came to the plant, constituted conduct that a jury could deem an intentional wrong. Laidlow, supra, 170 N.J. at 607-08, 621. The Court held that summary judgment had been improperly granted to the defendant employer. Id. at 620. The Court reasoned that the "prior close-calls, the seriousness of any potential injury that could occur, [the plaintiff's] complaints about the absent guard, and the guilty knowledge of [the employer] as revealed by its deliberate and systematic deception of OSHA" all demonstrated that the employer "knew that it was substantially certain that the removal of the safety guard would result eventually in injury to one of its employees." Id. at 622.

Unlike the circumstances presented in Millison and Laidlow, here there was no showing that James or Watkins was aware that requiring two men to pull a 120-pound compressor up to the roof was "substantially certain" to result in injury. Both men believed that two employees working together could safely accomplish the assigned task, which was not an unreasonable assumption in light of plaintiff's physical fitness. Moreover, there was no evidence of prior similar accidents or close calls, no evidence that OSHA regulations were violated, and no evidence that plaintiff or Staiger had ever complained about this assignment. While it is true that in the past, cranes were used when the compressor was heavy, there is no evidence in the record showing that James was aware that if a crane was not used, injury was a virtual certainty. Defendant's conduct is more akin to the "'mere knowledge and appreciation of a risk'" the Court held in Millison was insufficient. Millison, supra, 101 N.J. at 177 (citation omitted).

In evaluating James's order that plaintiff and Staiger haul the compressor to the roof, we must avoid the distorting effect of hindsight. The issue is what James actually knew before the day in question, not what he should have known. Laidlow, supra, 170 N.J. at 617 (observing that the employer "must know" that his actions are "substantially certain to result in injury").

In support of his argument that the judge erred in granting summary judgment to the County, plaintiff relies heavily on James's admitted hostility to him resulting from plaintiff filing a report accusing James of uttering a racial slur. Assuming, as we must, Brill, supra, 142 N.J. at 540, that James's dislike of plaintiff caused James to assign plaintiff to the job in question without also assigning a helper, the causal connection between James's dislike of plaintiff, and the resulting injury, was broken because ultimately Staiger was assigned to assist plaintiff.

We are also satisfied that the report of plaintiff's expert, Gallagher, was insufficient to raise a genuine issue of material fact. His conclusion that James and Watkins "must have known" that such an assignment was unreasonably dangerous falls far short of the actual knowledge standard that the Court adopted in Laidlow. Ibid.

Notably, nothing in the record demonstrates that James or Watkins subjected plaintiff to a risk of injury knowing that injury was a virtual certainty. At most, their conduct was an instance of gross negligence, or a wanton disregard for the safety of another, but such conduct is insufficient to overcome the workers' compensation bar. Millison, supra, 101 N.J. at 177. "'[M]ere knowledge and appreciation of a risk -- something short of substantial certainty'" is not an intentional wrong. Ibid. (citation omitted).

1 The "ladder method" entailed one worker standing on the roof and pulling on the compressor with a rope, while the other worker pushes the compressor upward while ascending a ladder.