Opinion
DOCKET NO. A-5767-12T3
06-22-2015
LAWRENCE J. KELLER and MARLENE KELLER, per quod, Plaintiffs-Appellants, v. TOWNSHIP OF BERKELEY, STEVEN J. SEILER and MARK VANELLA, Defendants-Respondents, and BERKELEY TOWNSHIP DEPARTMENT OF SANITATION, Defendant.
Michael T. Balzano argued the cause for appellants (The Vespi Law Firm, L.L.C., attorneys; Damon A. Vespi, of counsel; Mark J. Cintron, on the brief). Jared J. Monaco argued the cause for respondents (Gilmore & Monahan, P.A., attorneys; Mary M. McCudden, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Nugent, Accurso and Manahan. On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-4666-10. Michael T. Balzano argued the cause for appellants (The Vespi Law Firm, L.L.C., attorneys; Damon A. Vespi, of counsel; Mark J. Cintron, on the brief). Jared J. Monaco argued the cause for respondents (Gilmore & Monahan, P.A., attorneys; Mary M. McCudden, of counsel and on the brief). PER CURIAM
Plaintiffs Lawrence J. Keller and Marlene Keller, who sues per quod, appeal from a final order of summary judgment in favor of Lawrence Keller's employer, defendant Township of Berkeley, dismissing their complaint for personal injuries he suffered in a work accident. Because we agree with Judge Den Uyl that plaintiffs cannot vault the exclusivity bar of the Workers' Compensation Act, N.J.S.A. 34:15-1 to -142, viewing the facts most favorably to them, we affirm.
Lawrence Keller worked as a laborer for the Township's sanitation department. He suffered serious injuries when he fell from a moving garbage truck after the passenger-side door sprang open. Plaintiffs contend there had been many complaints about the truck over several years and that the Township had long known the passenger door would open unexpectedly. Their experts opined the door latch mechanism functioned improperly, and that the Township violated safety standards by failing to repair the problem. The Township denied it was aware of any problem with the truck and claimed an inspection conducted by State Police after the accident failed to note any problem with the locking mechanism. The Township also noted that no OSHA (Occupational Safety and Health Administration) violations were issued.
Judge Den Uyl applied the two-prong analysis formulated by the Supreme Court in Laidlow v. Hariton Mach. Co., 170 N.J. 602, 617 (2002). Looking at the facts in a light most favorable to plaintiffs and according them the benefit of all reasonable inferences, the judge found there was evidence
that the passenger side door latch of Sanitation Truck B-55 was defective . . . or did not close properly on the day of the accident, the condition existed for a long time prior to [p]laintiff's injury, the [d]efendant was on notice and aware of the problem. The [d]efendant did little or nothing to fix the problem. A jury could reasonably infer that the [d]efendant was negligent or even grossly negligent for failure to exercise slight care or diligence.Notwithstanding, the judge concluded that those facts were insufficient
to permit a rationale fact finder to reasonably infer [d]efendants' conduct was intentional and that the [d]efendant[s k]new that their actions were substantially certain to result in injury or death to an employee. Mere knowledge and appreciation of a risk is insufficient . . . .In reaching his conclusion, the judge considered in addition to the evidence above
that (1) there were no OSHA violations issued before or after the accident involving the latch on the passenger door;
(2) [t]he vehicle was impounded following the incident and inspected by the New Jersey State Police Commercial Vehicle Inspection Unit and the [d]efendant was not cited for a violation with respect to the latch on the passenger door; (3) [t]he conduct at issue was not an affirmative act but an omission i.e. the [d]efendant didn't do much, if anything, to fix the latch. The [d]efendant did not remove the latch or latch mechanism. The Township did not do anything to the door mechanism to make it less safe or unsafe in an effort to speed up garbage collection; (4) [t]he door was functional to some extent. The door was difficult to close and did not always stay closed; (5) [t]here is no evidence of a prior similar incident where an employee was actually injured.
Although plaintiffs' failure to establish the conduct prong was dispositive of their claims, the judge also continued the analysis to address the context prong:
Under the totality of the circumstances, the evidence in this case, when viewed in the light most favorable to the [p]laintiff giving the [p]laintiff the benefit of all favorable inferences, is not sufficient to surmount the second prong and demonstrate that the conduct at issue was "more than a fact of life of industrial employment" and "plainly beyond anything the Legislature intended the Workers' Compensation Act to immunize." Laidlow[, supra, 170 N.J. at 617].The judge accordingly entered summary judgment for the Township and dismissed plaintiffs' complaint.
On appeal, plaintiffs contend that factual issues precluded entry of summary judgment, and that the court erred in finding their claims barred by the Act's exclusivity bar. Plaintiffs also argue that the court erred in dismissing their claims for fraudulent concealment and spoliation. We disagree.
We review a summary judgment using the same standard the trial court used. Murray v. Plainfield Rescue Squad, 210 N.J. 581, 584 (2012). Our task, then, is to determine whether the evidence, viewed in the light most favorable to plaintiffs and according them all legitimate inferences, presents a sufficient disagreement to warrant submission of the matter to a jury or "whether it is so one-sided that one party must prevail as a matter of law." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523, 536 (1995) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986)).
Although the Workers' Compensation Act ordinarily provides the exclusive remedy for injuries sustained by employees in the course of employment, N.J.S.A. 34:15-8 allows relief from the exclusivity bar in cases of an intentional wrong. Van Dunk v. Reckson Assocs. Realty Co., 210 N.J. 449, 458-59 (2012). In Millison v. E.I. DuPont de Nemours & Co., 101 N.J. 161, 178 (1985), the Supreme Court held that an intentional wrong occurs when the employer possesses a "substantial certainty" that harm will result from an action. The Court explained that
the 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, § 8 at 36 (5th ed. 1984)).]
The Court reiterated the essential holding of Millison in Laidlow and reaffirmed the now familiar two-prong test applied by the trial court. Laidlow, supra, 170 N.J. at 617. More recently, in Van Dunk, the Court again explained that "Millison remains the landmark case on the meaning of intentional wrong." Van Dunk, supra, 210 N.J. at 461.
Having reviewed the record in light of these precedents, we agree with the trial court that the unfortunate accident that Keller suffered does not satisfy the substantial-certainty standard required to vault the Act's exclusivity bar. Accordingly, we affirm substantially for the reasons expressed by Judge Den Uyl in his written opinion of June 26, 2013.
We also agree that plaintiffs' fraudulent concealment of evidence and spoliation claims were properly dismissed on summary judgment. At best, plaintiffs established sloppy record keeping by the Township. There was simply no showing "[t]hat defendant intentionally withheld, altered or destroyed the evidence with purpose to disrupt the litigation" as required by Rosenblit v. Zimmerman, 166 N.J. 391, 406-07 (2001).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION