NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
PER CURIAM.
Samuel Sellino was employed as a trash truck operator for defendant Pinto Brothers Disposal, LLC (Pinto Brothers) and died after he fell under the wheels of a truck he had been driving. His estate and widow, Phyllis Sellino, (collectively, plaintiffs), appeal from an order that granted summary judgment, dismissing the complaint against Pinto Brothers as barred by the immunity provision of the Workers' Compensation Act (the Act), N.J.S.A. 34:15-1 to-128, and from an order denying plaintiff's motion for reconsideration. We affirm.
The relevant facts, viewed most favorably to plaintiff, R. 4:46-2(c), can be summarized as follows.
On October 17, 2008, Sellino was assigned to a route in Long Beach Township with Chris Pinto, a cousin of the owners of Pinto Brothers. Sellino was driving the truck while Chris was getting on and off the truck to throw brush into the truck's garbage compactor. When stopped at one house, Sellino got out of the truck, leaving the vehicle in drive, with the parking brake engaged. The truck started rolling forward. Sellino and Chris ran after it. After the truck came to a complete stop, Chris realized that Sellino had fallen under the wheels of the truck and died. It is undisputed that if Sellino had left the truck in neutral rather than in drive, the truck would not have rolled forward. Although it is uncorroborated, it is also undisputed that the company policy of Pinto Brothers is that drivers stay inside the cab and are not to leave the cab to assist co-workers. Andrew Pinto, one of the owners, testified he explicitly told Sellino to stay in the cab because he was known for getting out.
When describing the company's protocol for using the garbage compactor, Andrew explained that the driver is supposed to put the truck in neutral and activate the parking brake. Then, an employee can activate the throttle advance switch, which automatically revs the engine to provide additional power so the garbage compactor can be used.
The Occupational Safety and Health Administration (OSHA) investigated the accident. OSHA cited Pinto Brothers for violating the safety regulation that requires maintaining injury reports and logs, but did not issue any citations for "disabling, removing, altering or modifying any safety device" on the truck.
Plaintiffs filed this action, alleging that Pinto Brothers1 removed or bypassed a "neutral relay," an electrical switch that requires the vehicle be in neutral in order for the compactor to function. There is conflicting evidence as to whether Pinto Brothers removed or bypassed the neutral relay. However, for the purposes of our analysis, which requires that all favorable inferences be drawn in favor of plaintiffs, we assume that Pinto Brothers did so.
Plaintiffs' expert in accident reconstruction, Michael Greenfield, concluded that the incident would not have happened if (1) "[t]he momentary on activation switch was not replaced with an on/off switch"2 and (2) "[t]he neutral safety switch in the cab was not bypassed allowing the engine RPM to increase when the truck was still in gear."
Plaintiffs also presented the testimony of Jerald Zanzig, a truck engineering expert, who stated the neutral relay system is required by industry-wide safety standards established by the American National Safety Institute (ANSI). Zanzig asserted that Pinto Brothers disconnected and bypassed the neutral relay in order for the throttle advance system to operate and, as a result, the throttle advance system could operate while the truck was in both neutral and drive. Zanzig opined that "the primary reason for this accident was the deliberate and intentional bypass of the automatic neutral interlock safeguard." Zanzig also stated, "[t]here is no argument that Mr. Sellino left the transmission in gear upon exiting the cab, but I cannot agree that he alone is responsible for the incident. The reason for the ANSI Z245 automatic neutral interlock requirement was for just such a potential situation."
Pinto Brothers' expert, William Meyer, P.E., concluded that Sellino's fatal injury was caused by his own carelessness in failing "to put the truck in NEUTRAL gear before exiting the cab."
The Workers' Compensation Act represents "a historic `trade off' whereby employees relinquished 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). To implement this trade-off, 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).]
The standard for proving the "intentional wrong" exception is "formidable." Van Dunk v. Reckson Associates Realty Corp., 210 N.J. 449, 451 (2012). It is interpreted very narrowly "to further these underlying quid pro quo goals, so that as many work-related disability claims as possible be processed exclusively within the workers' compensation system." Mabee, supra, 316 N.J. Super. at 226-27 (citing Millison v. E.I. Du Pont de Nemours & Co., 101 N.J. 161, 177 (1985)).
Two conditions must be satisfied for the intentional wrong exception to apply. The first condition calls for an evaluation of the conduct of the employer, requiring that "the employer must know that his actions are substantially certain to result in injury or death to the employee." Laidlow v. Hariton Machinery Co., Inc., 170 N.J. 602, 617 (2002). The second condition calls for an evaluation of the context of the employer's conduct, and requires proof that "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 [Act] to immunize." Ibid.; see also Millison, supra, 101 N.J. at 177-80.
Plaintiffs argue that the bypass of the neutral relay constituted an intentional wrong under the Act, removing their action from the exclusivity bar of the Act. As a result, they contend that summary judgment was improper because a genuine issue of material fact existed as to the first prong of the Millison intentional wrong test and the trial court misinterpreted the law regarding the second prong of the Millison test. In addition, plaintiffs argue the court abused its discretion in denying their motion for reconsideration and ask that this matter be assigned to a new trial judge on remand. After considering these arguments in light of the record and applicable legal principles, we conclude that none of the arguments have merit.
Plaintiffs argue that the first Millison prong was satisfied by the following evidence: the neutral relay was a safety device that had been disconnected and bypassed; defendants tampered with the neutral relay, knowing its function and the consequences of its bypass; such tampering created an "accident waiting to happen" and a "substantial certainty" of a worker's injury or death; and defendants knew employees relied upon the proper functioning of the neutral relay because defendants expected drivers to exit the truck to load it and knew specifically that Sellino had a habit of doing so.
Plaintiffs also argue that the citation issued by OSHA provides further evidence that Pinto Brothers acted with the requisite intent. However, the fact of an OSHA violation, even if willful, does not establish an intentional wrong. Van Dunk, supra, 210 N.J. at 470. Rather, the determination whether the evidence proves an intentional wrong depends upon the totality of the circumstances of Sellino's fatal accident. Ibid.
As we have noted, although it is controverted, we accept plaintiffs' view of the evidence as supporting a finding that Pinto Brothers tampered with the neutral relay. However, the record does not support plaintiffs' assertions that Pinto Brothers knew that such tampering created a "substantial certainty" of injury or death or that they expected drivers to exit the truck to load it. To the contrary, it is undisputed that the consequence of bypassing the neutral relay was that the truck would roll forward if left in drive, which would not occur if the truck was left in neutral. Plaintiffs also did not refute Andrew Pinto's testimony regarding company policy or his assertion that he explicitly instructed Sellino not to leave the truck. Therefore, viewing the evidence in the light most favorable to plaintiffs, defendants tampered with the neutral relay, knowing that, as a result, the truck would roll forward if left in drive.
It may be inferred from such evidence that bypassing the neutral relay created a risk of injury to its employees. This falls short of showing that Pinto Brothers acted with knowledge that such action was "substantially certain to result in injury or death to the employee." Laidlow, supra, 170 N.J. at 617.
"Mere knowledge ... that a workplace is dangerous does not equate to an intentional wrong." Van Dunk, supra, 210 N.J. at 470. Within the context of the Act, intentional wrong "means `deliberate intention' and is not equatable with gross negligence or similar concepts importing constructive intent." Laidlow, supra, 170 N.J. at 612 (citing Bryan v. Jeffers, 103 N.J.Super. 522, 523-24 (App. Div. 1968), certif. denied, 53 N.J. 581 (1969)). Proof of a "strong probability" of harm will not suffice, Millison, supra, 101 N.J. at 178 (citing Restatement (Second) of Torts § 500 comment f (1965)); "a virtual certainty" of harm is required. Van Dunk, supra, 210 N.J. at 470.
Even if the alleged conduct goes beyond aggravated negligence, and includes such elements as knowingly permitting a hazardous work condition to exist, knowingly ordering employees to perform an extremely dangerous job, wilfully [sic] failing to furnish a safe place to work, fostering a "culture" of alcohol use at off-premises, after-hours company events, wilfully [sic] violating a safety statute, failing to protect employees from crime, refusing to respond to an employee's medical needs and restrictions, or withholding information about worksite hazards, the conduct still falls short of the kind of actual intention to injure that robs the injury of accidental character. [6 Lex K. Larson, Larson's Workers' Compensation Law § 103.03 (Matthew Bender rev. ed. 2013).]
See also Millison, supra, 101 N.J. at 171.
The character of the employer's alleged negligence here as falling short of establishing an intentional wrong is further fortified by consideration of the totality of the circumstances. We are constrained to note that Sellino's own negligence in leaving the truck in drive while leaving the cab unattended was, undisputedly, a substantial factor contributing to his fatal injury. Ultimately, the accident occurred because he fell under the wheels of the truck when he ran beside the truck in an effort to stop it. We therefore conclude that the first Millison prong was not satisfied by the evidence here.
The second Millison factor also presents a "high threshold" for the employee who seeks to escape the exclusivity of the Workers' Compensation Act. Van Dunk, supra, 210 N.J. at 474. It
reinforce[s] the strong legislative preference for the workers' compensation remedy[, which] is overcome only when it separately can be shown to the court, as the gatekeeper policing the Act's exclusivity requirement, that as a matter of law an employee's injury and the circumstances in which the injury is inflicted are "plainly beyond anything the legislature could have contemplated as entitling the employee to recover only under the Compensation Act."
[Id. at 473 (quoting Millison, supra, 101 N.J. at 179.)]
Plaintiffs agree that "common workplace accidents to which a garbage truck operator is exposed on a daily basis" are "remedied by Workers [sic] Compensation alone." They argue that the exclusion does not apply "where an employer removes a safety device, thus rendering a piece of industrial equipment uncommonly hazardous to the employee, and further where the employer does not make the employee aware of such hazard."
Plaintiffs' description of the context prong closely follows the facts in Laidlow, supra, where the employer disabled a safety guard thirteen years before the plaintiff's accident, replacing it only during OSHA inspections at the plant. 170 N.J. at 620-21. There were several potentially serious accidents alerting the employer "not only that injury was substantially certain to occur, but also that when it did occur it would be very serious." Id. at 620. In addition, the plaintiff expressed concerns about the removal of the safety guard. Id. at 621. Requests that the guard be restored were ignored because the employer refused to sacrifice "speed and convenience" in exchange for the safety of its employees. Ibid.
The facts of Laidlow are clearly distinguishable from this case. The evidence did not show that the bypass of the neutral relay rendered the truck uncommonly hazardous. Further, it is unrefuted that the employer instructed Sellino not to leave the cab of the truck when he was the driver. Therefore, viewing the evidence most favorably to plaintiffs, it does not satisfy the "context" prong even as defined by plaintiffs.
Moreover, the type of fatal accident that occurred here is a known danger in the industry. Phyllis Sellino testified she was aware of injuries suffered by other garbage truck drivers and workers, that you hear "through the grapevine ... when your husband's working in the business." She stated, "it's happened before with other drivers ... they back up and they run somebody over." In fact, Sellino was the driver of a truck that ran over an employee of his in the late 1980s. Accordingly, Sellino's death and the circumstances in which it occurred cannot be considered to be "plainly beyond anything the legislature could have contemplated as entitling the employee to recover only under the Compensation Act," Millison, supra, 101 N.J. at 179, as a matter of law.
The evidence here clearly failed to support a finding that Pinto Brothers committed an intentional wrong under the Workers' Compensation Act. Therefore, the exclusivity provision of the Act barred plaintiffs' claims and summary judgment was properly granted. R. 4:46-2(c).
Plaintiffs argue that their motion for reconsideration should have been granted because, in finding there was no evidence that a neutral relay was in the truck that could be bypassed, the trial court overlooked evidence showing the presence of a neutral relay in the truck. For the purpose of our analysis, we have assumed that the neutral relay existed and was bypassed by defendants. Because the evidence was insufficient to show an intentional wrong even under such circumstances, plaintiffs' argument lacks any merit and we need not consider the argument that this matter be remanded to a different judge.
Affirmed.
