SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
K
APPROVED FOR
PUBLICATION
August 30,
2010
APPELLATE
DIVISION
ENNETH VAN DUNK, SR.
and DEBORAH VAN DUNK,
v.
RECKSON ASSOCIATES REALTY
CORPORATION;
RECKSON CONSTRUCTION AND
DEVELOPMENT,
LLC; PAULUS, SOKOLOWSKI &
FLEMING, INC.;
and JOSEPH FLEMING, P.E.,
and
JAMES CONSTRUCTION COMPANY,
INC
_________________________________________
August 30,
2010
Argued:
January 21, 2010 - Decided:
Before Judges
Stern, Graves and Newman.
On appeal
from the Superior Court of New Jersey, Law Division, Bergen County, Docket No.
L-5897-06.
Glenn M.
Gerlanc argued the cause for appellants (Parisi & Gerlanc, P.A., attorneys;
Mr. Gerlanc, of counsel and on the brief; Steven M. Davis, on the brief).
George J.
Kenny argued the cause for respondent (Connell, Foley LLP, attorneys; Mr. Kenny,
of counsel and on the brief).
The opinion of the court was
delivered by
STERN, P.J.A.D.
Plaintiffs, Kenneth Van Dunk and his wife Deborah suing per quod,
appeal from an order of the Law Division entered on February 20, 2009, which
granted summary judgment to defendant James Construction Company ("James") and
dismissed their complaint. Plaintiff1 sustained
serious injuries as a result of a trench collapse at his worksite. Plaintiffs
claim that the workers' compensation bar does not apply to preclude their suit
because the federal Occupational Safety and Health Administration ("OSHA") found
that the accident was the result of a "willful violation" of its regulations,
and therefore constituted an "intentional wrong" for State law purposes, and
because James' superintendent sent plaintiff into the eighteen to twenty foot
trench knowing the dangers he faced. Plaintiffs argue that "the court erred in
holding that an intentional wrong under N.J.S.A. 34:15-8 had not
occurred." We reverse and remand for further proceedings.
I
Plaintiff sustained multiple injuries on August 10, 2004, as the
result of a trench collapse on a construction project at Giralda Farms (the
"project") in Chatham and Madison. In their complaint, plaintiffs identified
defendants Reckson Associates and Reckson Construction as "related business
organizations" that developed and managed the project. The complaint also
alleged that Reckson Construction had contracted with James, an excavation
contractor, to construct a retention pond and other related structures.
For purposes of this appeal, we must accept the facts in a manner
giving all legitimate inferences to plaintiffs on James's motion for summary
judgment. Estate of Hanges v. Metropolitan Prop. & Cas. Ins. Co., 202
N.J. 369, ___ (2010); Brill v. Guardian Life Ins. Co. of Am., 142
N.J. 520, 540 (1995).
Plaintiff was employed as a laborer by James which had to complete
its "work for the retention pond and storm water upgrades before other work [on
the project] could go forward." Therefore, its contract with Reckson had a
"substantial completion" date of October 15, 2004. The contract also provided
that James would be responsible "for planning the work to meet the schedule
required by Reckson." James was also responsible for ensuring that the work was
executed safely.
Glenn Key ("Key") was James' superintendent for the project and a
"competent person" for purposes of OSHA. An OSHA "competent person" is
[o]ne who has
had training in and is knowledgeable about soil analysis, the use of protective
systems, and the requirements of the OSHA standard. One who is also capable of
identifying existing and predictable hazards in the surroundings or working
conditions which are hazardous, unsanitary or dangerous to employees, and has
the authority to take prompt corrective measures to eliminate them.
Key had received formal OSHA
safety training through the Utility and Transportation Contractors Association
("UTCA") and been employed by James for thirty-two years as a construction
superintendent. He had been "fully trained in the requirements of OSHA with
respect to excavation work" and has undergone forty hours of OSHA training
"since the accident."
From the outset of the project, James had experienced difficulties
because of "record rainfalls" and "torrential rain" which impeded the progress
of the project. On August 10, 2004, the day of the accident, a dewatering
sump2 for the retention pond under
construction was being relocated. The assignment involved "mov[ing] the existing
dewatering sump that was in the bottom of the pond to a location just outside of
the top slope of the pond." According to J.D. Potash ("Potash"), James'
president, the sump had to be relocated that day before it rained because the
rest of the project "could not advance" if the sump was not relocated.
The assignment to
relocate the sump involved plaintiff, Key and five other individuals. In order
to relocate the sump, there had to be an excavation and construction of a
trench. According to Potash, the trench was
to be lined
with . . . geo-textile fabric . . . which is a black kind of wool or felt-like
fabric and usually in the bottom goes a layer of stone, maybe four, six inches
deep of stone, then a pipe is laid, and then more stone is put around the sides
and above the pipe and then the fabric is then folded over like an envelope so
you have kind of a sandwich with the fabric being the bread and the pipe being
the meat and the stone being the condiments . . . .
Initially, Key
attempted the cover the trench, which was about eighteen to twenty feet deep, by
having his men "stretch out [the fabric] and walk it over the trench." However,
the crew experienced some difficulty while attempting to do this. According to
Key, the fabric "wasn't laying right against the trench. It was getting
twisted."
At this point plaintiff "volunteered" to go into the trench and
"fix" the fabric. However, Key "stopped him" and told him not to enter the
trench. According to Key, he was concerned about plaintiff's safety "[i]n case
of failure." Key acknowledged that "[c]onsidering the depth of the excavation,
the soil type and the conditions and the lack of room to cut the slopes back
more, . . . [he] didn't want personnel to enter the excavation to install the
filter fabric" because he was worried about the trench "failing."
After denying plaintiff's offer to enter the trench, the crew,
consisting of six men, continued to "drape the filter cloth" over the trench.
Key indicated that he saw "some cracking in the bank" of the trench as they
tried to lay the cloth. However, they were unsuccessful in laying it properly.
Key maintains that in his "frustration" to get the fabric to lay correctly, he
ultimately "directed" plaintiff "to enter the excavation to correct the problem
with the cloth." That direction was in violation of OSHA's non-discretionary
requirements because the trench had no protective system to make it more
stable.3
According to Key, there was a "trench box" which could have been
used to make the trench more stable but he did not use it because the "[b]ucket
and backhoe" were wider than the box and "wouldn't fit inside" the trench.
Additionally, Key maintains that he did not use "sloping," which would have also
made the trench more stable, because it was "a confined area" and "the space"
for the trench would not allow it. In less than five minutes after plaintiff
entered the trench, it caved in and buried plaintiff to his chest. He was
transported to the Morristown Memorial Hospital and treated for multiple
injuries.
Thereafter, work on the project was suspended temporarily pending
an OSHA investigation. After its investigation, OSHA issued James a citation for
a "willful" violation of its regulations based on the fact that it had failed
"to protect [its employees] from cave-ins by an adequate protective system," the
excavation was not properly "sloped" and because plaintiff "went into an
unprotected trench, approximately [twenty] feet in depth . . . ." It was fined
in the amount of $49,000.
In Key's written report following the accident, he stated that
"[c]onsidering the depth of the excavation, the soil type and conditions and the
lack of room to cut the slopes back more[,] . . . [he] didn't want personnel to
enter the excavation to install the filter fabric . . . ."
II
Plaintiffs argue
that the trial court erred in holding that an "intentional wrong" had not
occurred for purposes of N.J.S.A. 34:15-8. According to plaintiffs, James
does not have immunity under the workers' compensation statute because the
facts, when viewed in the totality of the circumstances, create a jury question
on that issue. On the other hand, James responds that Key's actions do not
amount to an "intentional wrong" because they do not meet the threshold
established by caselaw.
The Workers'
Compensation system was characterized by the Supreme Court in Millison v.
E.I. Du Pont de Nemours & Co., 101
N.J. 161, 174 (1985) (discussing the legislative history of the Workers'
Compensation Act) as "a 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 accidents" as
a result of and through the "course of employment." Thus, "employees would
receive assurance of relatively swift and certain compensation payments, but
would relinquish their rights to pursue a potentially larger recovery in a
common-law action." Ibid. However, as the Court subsequently noted in
Laidlow v. Hariton Mach. Co., Inc., 170
N.J. 602, 605 (2002), Millison’s "characterization" of the Worker's
Compensation system is "only broadly accurate" because not every accident is
immune from a common law suit. This is because there are "certain types of
conduct by the employer and the employee" which the Legislature has determined
"will render the Workers' Compensation bargain a nullity." Id. at
605-06.4 See N.J.S.A. 34:15-7;
Akef v. BASF Corp., 140
N.J. 408, 412-13 (1995). Moreover, N.J.S.A. 34:15-8 limits an
employer's immunity to common law suits by excepting "intentional wrong[s]."
Laidlow, supra, 170 N.J. at 606.
The issue of what
qualifies as an "intentional wrong" under the statute was first addressed by our
Supreme Court in Millison, supra, 101 N.J. at 177-80.
There, the Court stated that the "intentional wrong" exception was to be
interpreted narrowly so as not to "swallow up" the "'exclusivity' provision of
the Act" and adopted Dean Prosser's "substantial certainty" test. Id. at
177-78. "Intent" under the "substantial certainty" test is defined as follows:
[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 and W. Keeton, The Law of Torts § 80 at 36
(5th ed. 1984)).]
The Millision Court stated that "the dividing line between
negligent 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 Act
[wa]s not circumvented simply because a known risk later blossom[ed] into
reality." Millison, supra, 101 N.J. at 178. Hence, in order
to meet the standard, the Court further stated that "[w]e must demand a virtual
certainty." Ibid. 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. Tomeo v. Thomas Whitesell Constr. Co., Inc., 176
N.J. 366 (2003) (defendant entitled to summary judgment and jury verdict
vacated where employer disabled safety lever on a snow blower because "the
Legislature contemplated that those accidents would be part and parcel of
workplace hazards covered by" the Act). Furthermore, the mere toleration of
workplace hazards is insufficient to show an "intentional wrong."
Millison, supra, 101 N.J. at 179.
The Court therefore adopted a two-prong test that had to be
satisfied in order to establish that an employer has lost its immunity under the
statute: "(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,
supra, 170 N.J. at 617. The first prong of the test is known as
the "conduct" prong, and the second as the "context" prong.
In Laidlow, the Court refined the two-prong test, and
indicated that in determining whether the employer's actions would meet the
conduct prong no one fact was dispositive. Laidlow, supra, 170
N.J. at 621. Accordingly, there had to be an analysis based on the
totality of the circumstances. Id. at 621-23. See Mull v. Zeta
Consumer Products, 176
N.J. 385 (2003). For instance, the Court noted that the "absence of a prior
accident" or "close-calls" does not necessarily "mean that the employer did not
appreciate that its conduct was 'substantially certain' to cause death or
injury." Laidlow, supra, 170 N.J. at 621. Furthermore, the
Court stated that the removal or alteration of a safety device, although not an
"intentional wrong" per se, could meet the conduct prong depending on the facts
of the case. Id. at 617-18. The Court also found that "[i]n general, the
same facts and circumstances will be relevant to both prongs of
Millison." Id. at 623.
Moreover, the Court articulated how summary judgment motions based
on the Workers' Compensation bar should be approached. Laidlow,
supra, 170 N.J. at 623. First, the court had to determine
"whether, when viewed in a light most favorable to the employee, the evidence
could lead a jury to conclude that the employer acted with knowledge that it was
substantially certain that a worker" would sustain injury. Ibid. In the
event that question is answered in the affirmative, "the trial court must then
determine whether, if the employee's allegations are proved, they 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 Workers' Compensation
bar." Ibid. If the latter, a trial is required when "the substantial
certainty standard presents a jury question," because whether the employer's
actions meet the context prong is a judicial function. Ibid. However,
resolving whether the conduct prong has been met is a question which the jury
has to determine. Ibid.
Plaintiffs argue
that the motion judge erred in finding that Key's conduct did not present a jury
question under the conduct prong. We agree.
In Laidlow, supra, 170 N.J. at 606, the Court
was again called upon to determine whether an employer's conduct constituted an
"intentional wrong" under N.J.S.A. 34:15-8. In that case, Rudolph Laidlow
("Laidlow") had "sustained a crush and degloving injury" which resulted "in
partial amputations of the index, middle, ring and small fingers." Id. at
606-07. He suffered these injuries when his hand became caught in a rolling mill
he was operating at his place of employment, AMI-DDC, Inc. ("AMI"). Id.
at 606. There had been a prior occasion where Laidlow's glove had "become hooked
on a bar, but he was able to slip his hand out of the glove before it was pulled
into the machine." Id. at 607. Another co-worker’s gloves had previously
been hooked on the bar, as well. These incidents were reported to AMI. The
employees’ gloves were getting hooked because, although the safety guard on the
rolling mill had been installed, it was "'never' engaged." Id. at 608.
The only time the guard was placed in the proper position was when OSHA
inspectors came to the plant. As soon as the OSHA inspectors left, the guard was
"disabled." Ibid. Laidlow operated the mill without the safety guard for
about twelve to thirteen years. The plaintiff had expressed concern about
operating the mill without the safety guard to his supervisor on several
occasions. Ibid.
After his injury,
Laidlow brought a common law action against AMI. Laidlow argued that "the
combination of the employer's disabling of the safety guard and [its] deception
of OSHA present[ed] a triable issue on whether" AMI's conduct constituted an
"intentional wrong." Id. at 609-10. On the other hand, AMI argued that
removal of a safety device alone failed to meet the "intentional wrong" test.
Id. at 610. Additionally, AMI maintained that operating the mill without
any injury within the past twelve or thirteen years indicated that the conduct
did not amount to an "intentional wrong." Ibid.
The Court found that under the totality of the circumstances, a
reasonable jury could conclude that the employer knew that it was “substantially
certain” that removal of the safety device would result in injury. Id. at
622. In making that determination, the Court considered "the prior close-calls,
the seriousness of any potential injury that could occur, Laidlow's complaints
about the absent guard, and the guilty knowledge of AMI as revealed by its
deliberate and systematic deception of OSHA." Ibid.
The Court was again faced with the issue of when an employer's
conduct exposes it to common law liability in Crippen v. Central Jersey
Concrete Pipe Co., 176
N.J. 397 (2003), where Harold Crippen ("Crippen"), a "material man" of the
defendant, Central Jersey Concrete Pipe Company, died in the course of his
employment. Id. at 399-400. As a "material man" Crippen "controlled the
movement of sand and gravel into loading hoppers located in the . . .
change-over room." Id. at 399. In order to regulate the inflow of sand
and gravel, "Crippen had to walk on a single two-inch by ten-inch wooden plank
and stand on a six-foot high, unsecured ladder that rested on the wooden plank."
"[W]hile performing those duties Crippen fell into the sand hopper and
suffocated" to death. Id. at 400. Prior to Crippen's death, OSHA had
conducted an investigation and cited the defendant for several violations.
Id. at 401-02. During discovery, the plaintiff found out that the
defendant had failed to "abate many of the hazardous conditions" for which it
had been cited. Id. at 403. Additionally, the defendant's Environmental
Health and Safety Manager acknowledged that he knew someone "could die" if the
violations were not abated. Ibid.
The specific issue before the Court was "whether an employer's . .
. fail[ure] to cure hazardous conditions in violation of a directive issued by .
. . OSHA, coupled with its intentional deception of OSHA," amounted to an
"intentional wrong" under N.J.S.A. 34:15-8. Id. at 399. Among
other things, the defendant argued that its actions did not amount to an
"intentional wrong" because there had been "no prior incidents involving the
hopper" and its failure to implement OSHA's safety programs was a "mere
toleration of a dangerous condition." Id. at 405-06.
The Court analyzed the facts under the conduct and context prongs
articulated in Millison and reiterated "that the absence of a prior
accident [does] not preclude a finding of an intentional wrong." Id. at
408 (citing Laidlow, supra, 170 N.J. at 621). The Court
stated that such evidence, and violations of OSHA safety regulations were
valuable in the "substantial certainty" analysis. Id. at 408. Thus, the
Court "conclude[d] that a reasonable jury could conclude that defendant had
knowledge that its deliberate failure to cure the OSHA violations would result
in a substantial certainty of injury or death to one of its employees."
Id. at 409.
Finally, in Mull, supra, 176 N.J. at 387, the
plaintiff was employed as a line operator at the defendant's plastic-bag
manufacturing facility. As part of the plaintiff's duties she worked with a
machine known as a "winder," which wound "plastic bags onto spools for packaging
and delivery." Ibid. The plastic frequently jammed the machine and caused
the nylon ropes to break requiring the line operator to clear the jam and
replace the broken ropes. Ibid. On the day of the accident, the machine
became jammed while the plaintiff was operating it. The plaintiff stopped the
machine, "lifted a fiberglass guard, removed the lodged plastic, and began to
replace the nylon ropes" which had broken. Id. at 387-88. While doing
that, "the winder began to operate, pulling [the] plaintiff's left hand into the
machine." Id. at 388. The plaintiff suffered "serious injuries, including
the amputation of her left pinky and ring fingers." Ibid. OSHA cited the
defendant for several safety violations as a result of the accident.
Ibid. The defendant had also been previously cited "for failing to
provide its employees with . . . lockout/tagout procedures" "designed to control
the release of hazardous energy when a worker is servicing or performing
maintenance on equipment or machinery." Ibid. There had also been a prior
accident with another line operator who had been injured when his hand was
pulled into the winder. Ibid.
The Supreme Court emphasized that in determining whether there was
a "substantial certainty" of death or injury, "no one fact" was dispositive
because the facts would be viewed in the totality of the circumstances.
Id. at 392. Rejecting the defendant's argument that it had not deceived
OSHA, the Court found that under the facts, the plaintiff had satisfied
Millison's conduct prong, ibid., and because the plaintiff had
also satisfied the "context prong," id. at 392-93, the order of summary
judgment was reversed. Id. at 393.
In his deposition, Key acknowledged that "[c]onsidering the depth
of the excavation, the soil type and the conditions and the lack of room to cut
the slopes back more, . . . [he] didn't want personnel to enter the excavation
to install the filter fabric" because he was worried about the trench "failing."
Additionally, Key indicated that he had said "no" to plaintiff's initial request
to enter the trench because he was worried about his safety. Therefore,
defendant had knowledge that allowing its employees to enter the trench without
any safety device could lead to injury or death. Moreover, Key's acknowledgement
that there was an accumulation of water in the bottom of the trench, indicating
that moisture was weeping from the soil, that there was cracking on the bank of
the trench, coupled with his knowledge that Type C soil, the kind of soil he was
working with, was the least stable, all show, in the totality of the
circumstances, that he knew the trench was unstable and that it could fail.
Moreover, like the plaintiffs in Laidlow, Crippen
and Mull, Van Dunk's safety was disregarded to increase defendant's
profit and productivity. Potash acknowledged that the relocation of the sump was
essential because without it the rest of the project could not go forward.
Therefore, defendant was under pressure to relocate the sump before it rained.
The fact that plaintiff's safety was sacrificed for defendant's benefit is
reinforced by the events following his accident. After OSHA had finished its
investigation, defendant was able to relocate the sump by using the trench box
it had on site without harm to any of its employees.
We recognize that this is a "close case." There was no removal of
a safety device, although non-use of the "trench box" is somewhat analagous.
Similarly, there was no deception for purposes of an OSHA inspection or
otherwise, and no prior or on-going events involving similar risks. In fact, Key
had gone out of his way to prevent a prior entry into the trench because he
understood the risks, but perhaps that made his ultimate decision more "knowing"
and "willful" than others involved in the precedent, and certainly one which
could be viewed by a reasonable jury as involving a "substantial certainty" of
death or injury. Furthermore, the fact OSHA gave defendant a "willful" violation
citation for failing to protect Van Dunk from a cave-in by using either a trench
box or sloping informs the "totality of the facts" and circumstances analysis
under the conduct prong. Laidlow, supra, 170 N.J. at 623.
See also Alloway v. Bradlees, Inc., 157
N.J. 221, 236 (1999) (suit by employee of subcontractor against general
contractor and others).
Nonetheless, defendant maintains that the court in Fisher v.
Sears, Roebuck & Co., 363
N.J. Super. 457, 470 (App. Div. 2003), cert. denied, 179
N.J. 310 (2004) expressed a reluctance to find an "intentional wrong" in
cases falling outside of the industrial-manufacturing context. We disagree.
While the court's language distinguished some precedent outside that setting,
the Fisher Court merely concluded that Sears's conduct was not egregious
enough to support a finding of "intentional wrong." Id. at 472-73.
We need not address plaintiff's contention that OSHA's "willful"
violation and "intentional wrong" under the statute "share common elements," and
that the OSHA finding is dispositive of the issue before us. While it may be
important in the totality of the circumstances analysis, Laidlow,
supra, 170 N.J. at 623, we do not find it conclusive.5 See also Alloway v.
Bradlees, Inc., supra, at 236.
Finally,
plaintiffs maintain that the court below erred in holding that Van Dunk's
accident "was a fact of industrial life." As already noted, with respect to the
context prong of the Millison test, the Court in Laidlow stated
that "[i]n general, the same facts and circumstances will be relevant to both
prongs." Laidlow, supra, 170 N.J. at 623. In making its
conclusion about the context prong, the trial court here stated that "[g]iven
the hazardous nature of construction sites, this Court finds that this is just a
function of industrial life." The trial court did not give significant credit to
the OSHA citation or the fact that defendant could have made the trench more
stable if it had used protective devices.
Although the motion judge is accurate in stating that construction
sites have a dangerous nature, that does not excuse the failure to use safety
devices to alleviate the dangers and risks which were clearly known in this
case. Here, it is unlikely that the Legislature would have considered allowing
an employee to enter an unstable trench without the use of a trench box or
adequate sloping, coupled with the employer's knowledge that the trench was
unstable and could fail at any moment, to "constitute simple facts of industrial
life." Laidlow, supra, 170 N.J. at 622. Thus, on the legal
issue before us, we conclude that the Legislature would not have sanctioned the
context within which this accident happened, or barred its recovery from James.
Thus, plaintiff satisfied his burden on both prongs, warranting a reversal of
the summary judgment.
R
1 When we refer to plaintiff in the singular, we refer
to Kenneth who is sometimes called Van Dunk. The matter has been dismissed or
settled as to the other defendants.
2 A sump is "a way to control ground water through
pumping." A sump was "necessary to keep the ground water and the rain water out
of the pond" while construction was ongoing.
3 Pursuant to OSHA regulations, "[e]ach employee in an
excavation shall be protected from cave-ins by an adequate protective system
designed in accordance with" the regulations. However, protective systems are
not required when: "(i) [e]xcavations are made entirely in stable rock; or (ii)
[e]xcavations are less than [five] feet (1.52m) in depth and examination . . .
by a competent person provides no indication of a potential cave-in."
Occupational Safety and Health Administration Rule, 29 C.F.R. §
1926.625(a) (2010).
4 Certain "intentional" misconduct by the employee may
also preclude benefits. N.J.S.A. 34:15-7.
5 In Millison v. E.I. Du Pont de Nemours &
Co., 226
N.J. Super. 572, 593-95, aff’d, 115
N.J. 252 (1989), we found that OSHA citations were hearsay because they were
"opinions of investigators and ordinarily d[id] not 'carry with [them] the
indicia of reliability that is inherent in government adopted safety
standards.'" Ibid. (quoting Dixon v. Int'l Harvester Co., 754
F.2d 573, 581 n.5 (5th Cir. 1985)). Plaintiff argues that the court's
conclusion does not apply here because "in Millison the employer
contested the OSHA citations and obtained a stipulation that the consent
agreement would not be evidential," but that limitation is not present here
because neither Potash nor Key refuted any portion of the citation. In light of
our disposition, we need not consider that issue or others raised by
plaintiffs.
