MAGDALENA JAROSZ v. G&B LLC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

MAGDALENA JAROSZ,

Plaintiff-Appellant,

v.

G&B LLC d/b/a THE ROYAL MANOR,

and KIDA, LLC,

Defendants-Respondents.

___________________________________

September 19, 2013

Argued September 10, 2013 Decided

Before Judges Reisner and Carroll.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-7775-10.

Joseph T. Calabria argued the cause for appellant (Garruto & Calabria, L.L.C., attorneys; Mr. Calabria, on the brief).

James Passantino argued the cause for respondent G&B LLC d/b/a The Royal Manor (Biancamano & DiStefano, P.C., attorneys; Mr. Passantino, on the brief).

Alexander J. Drago argued the cause for respondent Kida, LLC (Nowell Amoroso Klein & Bierman, P.A., attorneys; Mr. Drago, on the brief.

PER CURIAM

Plaintiff Magdalena Jarosz appeals from two orders entered on September 6, 2012, granting summary judgment in favor of defendants G&B, LLC d/b/a The Royal Manor (G&B), and Kida, LLC (Kida), which dismissed plaintiff's personal injury complaint. We affirm.

I.

We recite the generally-undisputed facts most favorable to plaintiff because summary judgment was entered in favor of defendants. Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 374 (2010).

The Royal Manor is a catering facility located in Garfield, New Jersey. On October 5, 2008, while employed at the Royal Manor as a server/waitress, plaintiff was injured as she assisted another server in wheeling out a flaming pig on a serving cart into the banquet area during a wedding reception. Plaintiff had been directed by the manager of the Royal Manor to assist in the presentation of the flaming pig. While wheeling out the cart, the other server, who was inexperienced and lacked the proper training, intermittently poured grain alcohol onto the pig to keep it aflame. Eventually the flame erupted, causing severe burns on plaintiff's right hand, forearm and right abdomen. She was left with permanent scars on her right hand and forearm, abdomen, and right thigh as a result of this incident.

Kida is the owner/landlord of the Garfield property where G&B, as tenant, operates the Royal Manor. Kida has no employees, and its sole business is to act as owner/landlord of the property. None of the employees of G&B were employed by Kida. No written lease existed between the defendants. Defendants shared a common principal, Dariusz Kida, who maintained an office at the Royal Manor, was involved in the restaurant's day-to-day operations, and was aware that there was going to be a presentation involving a flaming pig during the wedding reception.

As a result of this work-related occurrence, plaintiff filed a workers' compensation claim, and was awarded medical and temporary disability benefits as well as permanent partial disability.

Plaintiff also commenced this Law Division action seeking redress for her personal injuries. In her complaint, plaintiff alleged that G&B acted in a manner that it knew was certain and/or substantially certain to result in harm to her. Plaintiff further alleged that the landlord, Kida, breached a duty to her and others to keep the property in a reasonably safe condition.

After discovery ended, defendants moved for summary judgment. G&B contended that plaintiff's claims were barred by the Workers' Compensation Act, N.J.S.A. 34:15-1 to -142, and that the "intentional wrong" exception to this statutory bar was inapplicable. Kida argued that it had no duty to control the business activities of its commercial tenant, G&B. Plaintiff responded that sufficient facts existed whereby a jury could reasonably conclude that the flaming pig presentation was substantially certain to cause harm, which the employer, G&B, should have known. Plaintiff further contended that defendants are related entities, and that factual issues existed with respect to the allocation of duties and responsibilities attendant to their landlord/tenant relationship. Plaintiff also cited provisions of the New Jersey Uniform Fire Code, N.J.A.C. 5:70-1 to -4.20 (NJUFC), and other administrative regulations, as establishing a responsibility on the part of both the owner and occupant of the premises to comply with fire safety regulations.

Judge Menelaos W. Toskos heard argument on the motions on September 6, 2012. In his oral decision, Judge Toskos observed that if an injury is compensable under the Workers' Compensation Act, an employer is not otherwise liable for the injury except in the event of an intentional wrong. The judge then canvassed the jurisprudence relating to the intentional wrong exception, and ultimately concluded:

And I think the same thing can be said here, that the employee who was pouring the wood grain alcohol on the pig made an unfortunate decision, probably a poor decision and probably a negligent decision, but it doesn't satisfy the substantial certainty of injury that's required under Laidlow1. There's no indication that this had occurred prior or before. There's no indication that there was any certainty that an injury was going to occur.

Furthermore, as I indicated, even if . . . the plaintiff was able to satisfy that prong, the injuries that the plaintiff suffered are injuries that would fall within the fact of life and industrial employment in a restaurant. Those are the type of injuries that you expect to get in a restaurant. You expect to get burned in a restaurant. So for those reasons, I'll grant the motion on the part of the defendant, D&G, LLC, [for] summary judgment.

The judge then turned to the issue of whether Kida, as landlord, had a duty to look out for the safety of the employee of its commercial tenant, G&B. The judge distinguished cases dealing with a duty to maintain the premises, as opposed to the operation of a business, and "found difficulty in understanding how the landlord would be involved in the tenant's business operations."

The judge aptly noted that the question of whether a duty exists is a matter of law. Here Judge Toskos determined:

But more to the matter, the opportunity and ability to exercise care. What was the landlord's ability to exercise care over the tenant's business? I understand that they have the same principal, but they were two separate corporate entities and there was no piercing of the corporate veil.

Merely because they're two separate [] entities and the same individual happens to be a principal in both of them doesn't mean that he undertook - - meaning the corporate entity, undertook the responsibility of policing the business practices of the commercial tenant.

. . . .

I can't find [the existence of a duty] here. I don't see where the landlord - - it's a separate corporate entity without any employees, if I read the certification correctly, has the duty to police the business activities of the tenant. There's no evidence indicating that [] this particular event meaning the pushing of a pig on a table while it was being burned was done before and that there was any indication that it was a problem....

Accordingly, the court similarly granted Kida's motion for summary judgment.

II.

Orders granting summary judgment pursuant to Rule4:46-2 are reviewed de novo, Town of Kearny v. Brandt, 214 N.J.76, 91 (2013), and we apply the same legal standard employed by the Law Division. Canter v. Lakewood of Voorhees, 420 N.J. Super. 508, 515 (App. Div. 2011). We consider, as did the motion court, "'whether the competent evidential materials presented, when viewed in the light most favorable to the nonmoving party, are sufficient to permit a rational fact finder to resolve the alleged disputed issue in favor of the non-moving party.'" Advance Hous., Inc. v. Twp. of Teaneck, 422 N.J. Super.317, 327 (App. Div. 2011) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J.520, 540 (1995)), certif. granted, 209 N.J.100 (2012). Similarly, when the legal conclusions of a motion court's Rule4:46-2 summary judgment decision are reviewed on appeal, "'[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference[,]' and, hence, an 'issue of law is subject to de novo plenary appellate review.'" Estate of Hanges, supra, 202 N.J.at 382-83 (alteration in original) (quoting Manalapan Realty, L.P. v. Twp. Comm. of Twp. ofManalapan, 140 N.J.366, 378 (1995)).

A.

On appeal, as she did before the trial court, plaintiff argues that G&B's manager, Jaroslaw Adach, had knowledge of the danger of applying grain alcohol to a flaming pig on a rolling cart. Nonetheless, Adach dispatched plaintiff to assist the other server, a nineteen-year-old employee who was relatively inexperienced and lacked the proper training. Thus, plaintiff contends, it was substantially certain that she would be injured by the employer's conduct.

With respect to plaintiff's action against G&B, we begin with a statement of some basic principles that guide our analysis. New Jersey's Workers' Compensation Act is "designed to establish a no fault system of compensation for workers who are injured or contract a disease in the course of employment." Fitzgerald v. Tom Coddington Stables, 186 N.J.21, 30 (2006) (quoting Brock v. Pub. Serv. Elec. & Gas Co., 325 N.J. Super. 582, 588 (App. Div. 1999), certif. denied, 163 N.J.77 (2000)). "[T]he Act involve[s] a historic 'trade off' whereby employees relinquish[] their right to pursue common-law remedies in exchange for automatic entitlement to benefits for work-related injuries[.]" Mabee v. Borden, Inc., 316 N.J. Super. 218, 226 (App. Div. 1998). N.J.S.A. 34:15-7 requires the employer to compensate an employee for personal injuries "arising out of and in the course of employment . . . without regard to the negligence of the employer," thus relieving the employee of having to prove negligence or any wrongful conduct by the employer before being compensated. As noted in Mabee, the Act's remedies are exclusive. See Mabee, supra, 316 N.J. Super. at 226-27. Just as the worker is automatically entitled to benefits without proving a tort, he or she is barred from pursuing common law remedies even if the employer has been negligent. See N.J.S.A. 34:15-8 (providing that "[i]f an injury . . . is compensable" under the Act, the employee "surrender[s his] rights to any other method, form or amount of compensation or determination thereof[,]" and the employer "shall not be liable to [the employee] at common law or otherwise on account of [the employee's] injury . . . for any act or omission"). Further, because the Act "is remedial social legislation[,]" it "should be given liberal construction in order that its beneficent purposes may be accomplished." Fitzgerald, supra, 186 N.J. at 30 (quoting Torres v. Trenton Times Newspaper, 64 N.J. 458, 461 (1974)).

The Act thus provides the exclusive avenue by which an injured worker may recover compensation from his or her employer for work-related injuries, except for claims based on an "intentional wrong." N.J.S.A.34:15-8. "[A]n employer who causes the death or injury of an employee by committing an 'intentional wrong' will not be insulated from common-law suit." Laidlow v. Hariton Machinery Co., Inc., supra, 170 N.J.at 606 (citing Millison v. E.I. du Pont de Nemours & Co., 101 N.J.161, 169 (1985)). Because the goal of the Act is to provide compensation to injured workers for as many work-related injuries as possible, the Act's "intentional wrong" exception must be narrowly construed:

Even an injury caused by either gross negligence or an abysmal lack of concern for the safety of employees is insufficient to satisfy the "intentional wrong" exception. Rather, the level of intent sufficient to overcome the exclusivity of the Act is a deliberate intention to injure. An employer acts with such an intent when he desires to cause consequences of his act or is substantially certain that such consequences will result from his actions.

[Kaczorowska v. Nat'l Envelope Corp., 342 N.J. Super. 580, 587-88 (App. Div. 2001) (internal citations and quotations omitted).]

The intentional wrong exception to the exclusivity of relief provided by workers' compensation was first construed by our Supreme Court in Millison, supra. There, the Court held that the plaintiffs' claims that the employer had fraudulently concealed that they were suffering from asbestos-related diseases, thereby delaying treatment and aggravating their existing illness, constituted an intentional wrong which was an exception to the workers' compensation bar. Id. at 181-82. The Court recognized that:

[T]he statutory scheme contemplates that as many work-related disability claims as possible be processed exclusively within the Act. Moreover, 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 or a co-employee intentionally acting to do whatever it is that may or may not lead to eventual injury or disease.

[Id. at 177.]

Thus, in Millison, the Court emphasized that the concept of "intentional wrong" encompassed more than a subjective intention to injure. In considering what level of risk and exposure to danger was "so egregious as to constitute an 'intentional wrong,'" the Court concluded that mere knowledge and appreciation of a risk of harm to an employee cannot be considered intent. Ibid. Rather, the Court adopted a "substantial certainty" standard. Id. at 178. The Court held that a plaintiff can show an intentional wrong by proving two elements, known as the "conduct" and "context" prongs, respectively. First, the employer must knowingly expose the employee to a substantial certainty of injury. Second, the resulting injury must not be "a fact of life of industrial employment," and must be plainly beyond anything the Legislature intended the Act to immunize. Id. at 178-79.

Next, in Laidlow, supra, 170 N.J. at 605, the Court examined the intentional wrong exception in the context of an industrial accident where a safety device had been disengaged for reasons of speed and efficiency. The Court held that the employer acted with knowledge that it was substantially certain that a worker would suffer an injury when the employer tied a safety guard on a rolling mill, releasing it only when the Occupational Safety and Health Administration (OSHA) inspectors were present and although no injuries had occurred in the past, there had been several close calls that had been reported to the employer. Id. at 620-22. The Court further held that an employee injury under these circumstances would never constitute the simple facts of industrial life. Id. at 622.

Following Millison and Laidlow, the Court applied the two-part test to various factual circumstances. In Mull v. Zeta Consumer Products, 176 N.J. 385, 392-93 (2003), the Court held that an employer's wrongful conduct in removing safety devices from a machine, despite prior injuries, complaints by other employees, and prior OSHA safety citations, met the two-part exception for an intentional wrong. Likewise, in Crippen v. Central Jersey Concrete Pipe Co., 176 N.J. 397, 410-11 (2003), the Court allowed a worker's estate to seek common law damages where OSHA had cited the employer for several violations that had not been cured and the employer's safety manager admitted that conditions at the plant were dangerous and life-threatening. By contrast, in Tomeo v. Thomas Whitesell Construction Co., 176 N.J. 366, 378 (2003), the Court upheld summary judgment for the employer despite an alleged disabled safety device where the machine had warnings posted on it that the worker ignored by reaching into the machine while the propellers were rotating. Id. at 375-78.

Most recently, in Van Dunk v. Reckson Associates Realty Corp., 210 N.J. 449, 474 (2012), the Court held that the Act's exclusivity bar applied where the workplace accident produced an OSHA citation for a "willful" violation of OSHA safety rules. In Van Dunk, the plaintiff, a construction worker, had been injured when a trench collapsed on him at his worksite. The unsupported trench was excavated to a depth far beyond which a worker could safely enter without safety equipment, according to OSHA safety rules and the employer's safety program. Id. at 454. The employer was charged with willful violation of OSHA regulations, did not contest the charges, and was fined. Id. at 455. The supervisor acknowledged the violations, including conceding to not using safety equipment despite having it at the job site. Ibid. The Court held "that the finding of a willful violation under OSHA is not dispositive of the issue of whether the employer in this case committed an intentional wrong." Id. at 470. With respect to the conduct prong of the intentional wrong exception, the Court explained that "[a] probability, or knowledge that [] injury or death 'could' result, is insufficient." Ibid. Instead, the "intentional wrong must amount to a virtual certainty that bodily injury or death will result." Ibid. Furthermore, the Court observed that the "high threshold" of the context prong was not met by "the type of mistaken judgment by the employer and ensuing employee accident that occurred on [the] construction site." Id. at 474.

In finding no intentional wrong, the Court distinguished the cases described above because:

those cases all involved the employer's affirmative action to remove a safety device from a machine, prior OSHA citations, deliberate deceit regarding the condition of the workplace, machine, or, in the case of Millison, the employee's medical condition, knowledge of prior injury or accidents, and previous complaints from employees.

[Id. at 471.]

In short, while the knowing failure to take safety precautions was an "exceptional wrong," it was not the type of egregious conduct associated with an intentional wrong.

Thus, in addition to violations of safety regulations or failure to follow good safety practice, an intentional wrong must be accompanied by something more, typically deception, affirmative acts that defeat safety devices, or a willful failure to remedy past violations. See Laidlow, supra, 170 N.J. at 616 (quoting Millison, supra, 101 N.J. at 179) (noting that the "mere toleration of workplace hazards 'will come up short' of substantial certainty"). Absent such egregious conduct, the employee is limited to the workers' compensation remedy.

With these principles in mind, even viewing the facts in the light most favorable to plaintiff, we cannot find that the employer knowingly exposed her to a virtual certainty of harm. There were no safety violations that the employer refused to remedy, and certainly none that related to flamb ing activities at the Royal Manor. This particular presentation had not occurred before, and we agree with the motion judge that there was no certainty that an injury was going to occur. As the judge aptly noted, while the other server made "a poor decision and probably a negligent decision" in pouring the wood grain alcohol on the pig, we are satisfied that such negligent activity was insufficient to establish the conduct prong of the substantial certainty test.

The key question under the second, or "context" prong, is whether "the circumstances in which [the injury] is inflicted on the worker [can] fairly be viewed as a fact of life of industrial employment, or is it rather plainly beyond anything the legislature could have contemplated as entitling the employee to recover only under the Compensation Act." Laidlow, supra, 170 N.J. at 614 (citing Millison, supra, 101 N.J. at 179).

Judge Toskos concluded that an employee getting burned was an expected risk of working in a restaurant. We agree, and similarly conclude that even if plaintiff had been able to satisfy the conduct prong of the substantial certainty test, the context prong is not satisfied under these facts. Hence summary judgment was properly entered in favor of G&B.

B.

We next turn to plaintiff's contention that the motion judge erred in finding that Kida, who through its agent, Dariusz Kida, was involved with the building, property and business, did not owe a duty of care to third parties such as plaintiff to ensure that G&B was safely conducting its business operations at the premises.

In a lawsuit alleging that a defendant is liable to a plaintiff because of the defendant's negligent conduct, the plaintiff must prove four things: (1) that the defendant owed a duty of care to the plaintiff, (2) that the defendant breached that duty, (3) that the breach was a proximate cause of the plaintiff's injuries, and (4) that the plaintiff suffered actual compensable injuries as a result. Polzo v. Cnty. of Essex, 196 N.J.569, 584 (2008). The plaintiff bears the burden of proving each of these four "core elements" of a negligence claim. Brunson v. Affinity Fed. Credit Union, 199 N.J.381, 400 (2009).

In determining whether tort liability is appropriately imposed upon the property owner, Kida, we are guided by the principles articulated in Hopkins v. Fox & Lazo Realtors, 132 N.J.426 (1993):

Whether a person owes a duty of reasonable care toward another turns on whether the imposition of such a duty satisfies an abiding sense of basic fairness under all of the circumstances in light of considerations of public policy. That inquiry involves identifying, weighing, and balancing several factors -- the relationship of the parties, the nature of the attendant risk, the opportunity and ability to exercise care, and the public interest in the proposed solution.

[Id. at 439.]

As the Court recently emphasized, this "analysis is both very fact-specific and principled; it must lead to solutions that properly and fairly resolve the specific case and generate intelligible and sensible rules to govern future conduct." Estate of Desir v. Vertus, 214 N.J. 303, 322 (2013) (quoting Hopkins, supra, 132 N.J. at 439).

Although no one of the factors identified in Hopkinsis dispositive, the Court has stated that "the true focus of any potential expansion of a duty in tort . . . is an evaluation of the public interest." Estate of Desir, supra, 214 N.J.303, 328. It is therefore "essential to recognize not the interests of the particular individuals before the Court, but instead to take careful consideration of the effect that the creation of a duty will have more generally on the public." Ibid. Specifically, the effect upon the public of a duty requires an evaluation of "how establishing this duty will work in practice." Id. at 44; see also Kuzmicz v. Ivy Hill Park Apartments, Inc., 147 N.J. 510, 515 (1997) ("Ultimately, the determination of the existence of a duty is a question of fairness and public policy."). We recently found that the sender of a text message owes a limited duty to the public when the sender "has actual knowledge or special reason to know," "from prior texting experience or otherwise," that the recipient will view the text while driving. Kubert v. Best, ___ N.J. Super. ___, ___ (App. Div. 2013) (slip op. at 26).

Here, the motion judge found no proof that Kida controlled the restaurant's operations, or had a duty to do so. We similarly conclude that the flamb ing activity at issue here was exclusively within the control of the restaurant, not the landlord, even if Dariusz Kida was on the premises during the wedding. Plaintiff cites Mr. Kida's presence as a basis to impose a duty on Kida. However, there was no evidence that Mr. Kida was present as the landlord's agent or for any purpose other than his day-to-day supervision of G&B's restaurant business. More importantly, absent a basis to pierce the corporate veil, the motion judge correctly noted that Kida and G&B were separate entities, and the fact that they had a common principal was insufficient to confer liability on the landlord for the actions of its commercial tenant.

In seeking to impose liability on Kida, plaintiff primarily relies on case law dealing with premises liability. Indeed, under New Jersey law, "landlords and business owners should be liable for foreseeable injuries that occur on their premises." Cucmicz v. Ivy Hill Park Apartments, Inc., 147 N.J. 510, 517 (1997). This duty arises out of the fact that landlords and business owners "are in the best position to control the risk of harm. Ownership or control of the premises, for example, enables a party to prevent the harm." Ibid. However, this same principle cannot necessarily be held to apply to business operations conducted at the premises, over which the commercial tenant can ordinarily be expected to possess the greater degree of knowledge, experience, and control.

While our decision here should not necessarily be read to mean that property owners can never be held accountable for their tenant's business operations, under the facts here presented, where the restaurant contracted for the flaming pig presentation at a wedding reception, and there was no showing that its flamb ing activities were unusual or presented a problem in the past, we conclude that Kida owed no duty of care to the restaurant's employees in connection with this activity, as Judge Toskos properly ruled.

C.

We find the remainder of plaintiff's arguments lack sufficient merit to be addressed in a written opinion. R. 2:11-3(e)(1)(E). Suffice it to say, the provisions of the NJUFC and other administrative provisions regulating flaming food and beverage presentations, upon which plaintiff places substantial reliance in attempting to assert liability against Kida, were either not yet in effect in New Jersey at the time of the incident, or were inapplicable to the flamb ing activity conducted by the restaurant here.

1 Laidlow v. Hariton Machinery Co., Inc., 170 N.J. 602 (2002).