LINO LEMUS v. CATERPILLAR CORPORATION

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4069-11T2

LINO LEMUS,

Plaintiff-Appellant,

v.

CATERPILLAR CORPORATION, a corporation of the State of Illinois authorized to do business in the State of New Jersey; W.H.O. MANUFACTURING COMPANY, a company of the State of Colorado authorized to do business in New Jersey,

Defendants,

and

A.B. DAUMAN INDUSTRIES a/k/a DAUMAN RECYCLING COMPANY, an entity authorized to do business in New Jersey,

Defendant-Respondent.

__________________________________________

A

May 16, 2013

Before Judges Messano and Kennedy.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-1048-09.

Jared Schure argued the cause for appellant (The Rinaldo Law Firm, attorneys; Richard P. Rinaldo, on the brief).

George J. Kenny argued the cause for respondent (Connell Foley, attorneys; Mr. Kenney, of counsel and on the brief).

PER CURIAM

Plaintiff Lino Lemus appeals from a Law Division order granting summary judgment to defendant A.B. Dauman Industries, Inc. (Dauman) and the order denying his motion to reconsider. Plaintiff argues that the motion court erred in granting summary judgment because Dauman, plaintiff's employer at the time of his injury, removed "safety guards" from the device which injured plaintiff, making it "virtually certain" that plaintiff would be injured, and thereby overcoming the exclusive remedy provision, N.J.S.A. 34:15-8, in the Workers' Compensation Act (the Act). N.J.S.A. 34:15-1 to 142. As most recently affirmed in Van Dunk v. Reckson Associates Realty Corp., 210 N.J.449 (2012), because we narrowly construe the intentional tort exception, we reject plaintiff's argument and affirm.

I.

Our review of a motion court order granting summary judgment is de novo, and we apply the same standard as the motion court in determining whether there are any genuinely disputed issues of material fact sufficient to warrant resolution of the disputed issues by the trier of fact. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Our analysis requires that we first determine whether the moving party has demonstrated that there are no genuine disputes as to material facts, and then we decide "whether the motion judge's application of the law was correct." Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230-31 (App. Div.), certif. denied, 189 N.J. 104 (2006). In so doing, we view the evidence "in the light most favorable to the part[y] opposing summary judgment." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). We accord no special deference to the motion judge's conclusions on issues of law. Zabilowicz v. Kelsey, 200 N.J. 507, 512 (2009).

Following are the salient facts viewed in a light most favorable to plaintiff. In 2007, the thirty-three-year old plaintiff worked as a laborer for Dauman, an entity that recycled pallets and other scrap wood products. Part of the business entailed grinding waste wood for later use as mulch, and Dauman had several wood grinding machines on its property for this purpose.

Dauman purchased one of these wood grinding machines from W.H.O. Manufacturing Co. (WHO) in 1993. Scrap wood is fed into the top of this machine using a front-end loader. The wood falls into a large tub where it is pounded into chips by a set of rotating hammers. The chips are then discharged onto a rotating conveyor belt known as a "drag belt" which carries the chips to another rotating conveyor belt known as an "elevator belt" which empties into a receptacle. The belts and the rotating hammers are powered by a drive shaft which runs beneath the machine.

When originally manufactured by WHO, the area where the drive shaft meets a "joint coupling" was covered by a metal grate, or screen, approximately three feet in length. The grate was attached to the machine by four metal pins, and was removable in order to allow access to the drive shaft for maintenance.

Plaintiff stated that the conveyor belts on the machine continuously jammed when pieces of wood became lodged in the belt rollers or between the drag and elevator belts. Plaintiff further stated he had been instructed by Dauman to clear the jam by either inserting a metal pry bar between the rollers or using a large wrench to manually rotate the rollers. Apparently, Dauman had welded a nut on the exposed end of the roller to facilitate use of the wrench.

On May 21, 2007, plaintiff was assigned to work at the WHO wood grinder. As usual, the conveyor belts jammed several times that day, and plaintiff manually cleared the jams utilizing one or the other of the methods noted above. It was cool and windy that day and plaintiff wore an open jacket. While clearing a jam, the wind blew an end of plaintiff's jacket onto the drive shaft, and plaintiff was dragged into the machine and injured.

Plaintiff and another employee testified that there was no metal grate or screen over the drive shaft at the time of plaintiff's injury and that, in fact, they had never seen such a screen in place over the five or six years they had worked for Dauman.

David D'Andrea, a Dauman employee since 1989 and plaintiff's supervisor at the time of the accident, testified that he "d[id not] believe [the metal grate over the drive shaft] was removed" prior to the accident, and stated he examined the grinder shortly after the accident and saw the grate in place. He added that the grate covered most of the length of the drive shaft, but not all of it.

Plaintiff's engineering expert opined that the metal grate had to have been missing at the time of the accident, and that, if in place, it would have covered the entire exposed length of the drive shaft. He also opined that Dauman's supervisors had an obligation to make reasonable safety inspections of the machine, which, had they been undertaken, would have revealed the missing metal grate. He added that the wood grinder had not been maintained properly and that this fact, together with the removal of the guard and the general poor condition of the machine, "resulted in a high probability" that plaintiff would be injured while using it.

Dauman moved for summary judgment, and argued that, even assuming the guard was missing on the day of the accident, plaintiff had adduced no proof that it had removed the guard or whether the guard had fallen off over time. The motion judge initially granted the motion, but vacated the order after the civil presiding judge extended discovery. Following the expiration of discovery, Dauman moved again for summary judgment and the motion judge, again, granted the motion, finding "no evidence that [Dauman] had ever altered the machine, [or] had ever done anything intentionally to the machine." The judge later denied plaintiff's motion for reconsideration and this appeal followed.

II.

Plaintiff contends that summary judgment was improperly granted because the evidence showed that Bauman had intentionally removed a safety guard, thereby exposing workers to a spinning drive shaft. Further, plaintiff asserts there was sufficient evidence to show that the circumstances of plaintiff's injury were "more than a fact of life of industrial employment and [] plainly beyond anything the Legislature intended the Workers' Compensation Act to immunize."

We begin with a statement of some basic principles that guide our analysis. The Act, N.J.S.A. 34:15-1 to -142, 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., 170 N.J. 602, 606 (2002) (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).]

Millison, supra, explicitly addressed "what categories of employer conduct will be sufficiently flagrant so as to constitute an 'intentional wrong,' thereby entitling a plaintiff to avoid the 'exclusivity' bar of N.J.S.A. 34:15-8[.]" 101 N.J. at 176. There, the plaintiffs asserted claims against their employer for knowingly and deliberately exposing them to a hazardous work environment and concealing from them the existence of occupational diseases arising from such exposure. The Court articulated a standard by which to measure whether an employer's conduct rose to the level of an "intentional wrong" under the Act. Id. at 177-80. The Court adverted to the "intent" analysis of Dean Prosser and adopted a "substantial certainty" test:

[T]he 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 wanton, but it is not an intentional wrong.
 
[Id. at 177 (quoting W. Prosser & W. Keeton, The Law of Torts, 8 at 36 (5th Ed. 1984)).]

The Court also observed that "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." Id. at 177.
The Court in Millison equated "substantial certainty" with virtual certainty, and trial courts therefore must determine whether the employer's conduct evidenced a virtual certainty of death or injury. Id. at 178. Moreover, in addition to applying Dean Prosser's "substantial certainty" test, the Court directed trial courts to make a second inquiry. This second inquiry requires trial courts to determine whether the context in which the employer's conduct occurred leading to an employee's injury or death may "fairly be viewed as a fact of life of industrial employment, or is it rather plainly beyond anything the [L]egislature could have contemplated as entitling the employee to recover only under the [Act]?" Id. at 179.
The Court reaffirmed this holding in Laidlow, supra, where it also observed that proving both the conduct and context prongs may involve consideration of the same facts and circumstances. 170 N.J. at 623. The principle that emerged from Laidlow and subsequent cases is that the mere act of an employer in exposing a worker to the risk of injury or death does not establish a per se intentional wrong. See id. at 622-23 (noting that it is not per se an intentional wrong to "remove[] a guard or similar safety device from equipment or machinery"). See also Mabee v. Borden, Inc., 316 N.J. Super. 218, 230-31 (App. Div. 1998) (rejecting the plaintiff's argument that alteration or removal of a safety device from a workplace machine presents a per se prima facie case of "intentional wrong.")

The Millison "conduct" prong requires the court to determine whether a plaintiff has presented evidence from which a jury could reasonably conclude "the employer acted with knowledge that it was substantially certain that a worker would suffer injury." Laidlow, supra, 170 N.J. at 623. No single factor is dispositive; rather, it is the totality of the circumstances existing both leading up to the accident and at the time of the accident that must be examined. Id. at 621-23; see also Mull v. Zeta Consumer Prods., 176 N.J. 385, 392 (2003). If the answer to this question is affirmative, the court next must address the context prong to ascertain whether plaintiff's allegations constitute a "simple fact of industrial life or are outside of the purview of the conditions the Legislature could have intended to immunize under the [Act]." Laidlow, supra, 170 N.J. at 623.

Most recently, in Van Dunk, supra, 210 N.J. at 474, 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 beyond which a worker could 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 a failure to use 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 facts in that case from others that "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; 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, there is simply nothing in the record to support the claims that Dauman removed the metal grate evidencing a deliberate intention to injure plaintiff or a virtual certainty that such injury would occur. The record supports the claim that the grate was missing, but not that Dauman deliberately removed it. Moreover, there is no evidence that Dauman acted affirmatively to create a "virtual certainty" of injury to plaintiff. Tomeo v. Thomas Whitesell Constr. Co., Inc., 176 N.J. 366, 371 (2003) ("simply being aware of the risk of harm does not equate to having knowledge of a substantial certainty of harm.").

Viewing the facts in the light most favorable to plaintiff, there were no prior safety violations that Dauman refused to remedy, there is no evidence that Dauman undertook any affirmative action that impaired its employees' safety, and Dauman did not try to deceive plaintiff, law enforcement, or anyone else about the dangers present in the workplace. While it might be said that Dauman ignored various safety precautions and regulations, and in doing so created a greater risk of injury to plaintiff conduct that clearly cannot be condoned - we are convinced it does not amount to an intentional wrong that allows plaintiff to avoid the workers' compensation bar.

In summary, the evidence, when viewed in plaintiff's favor, is simply insufficient to support the claim that the employer knew its actions were virtually certain to result in injury to plaintiff. Because our analysis of the evidence relevant to the conduct prong leads us to conclude that plaintiff has failed to meet his burden at this stage of the litigation of proffering prima facie proof of an intentional wrong, we need not address the context prong. See Laidlow,supra, 170 N.J. at 623.

A