CORTICO v. TRANSPORTES AEREOS PORTUGESE

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

CHRISTOPHER CORTICO,

Plaintiff, Civil Action No. 24-07674

v.

OPINION

TRANSPORTES AEREOS PORTUGESE,

et al.,

January 29, 2025

Defendant.

SEMPER, District Judge.

The current matter comes before the Court on Defendant Worldwide Flight Services, Inc.

(“WFS”) motion to dismiss Plaintiff Christopher Cortico’s (“Cortico” or “Plaintiff”) First

Amended Complaint (“FAC”) pursuant to Rule 12(b)(6). (ECF 9.) The Court reviewed all

submissions in support and in opposition and decided the motion without oral argument pursuant

to Federal Rule of Civil Procedure 78 and Local Civil Rule 78.1. For the reasons set forth below,

Defendant’s motion is GRANTED.

I. FACTUAL AND PROCEDURAL BACKGROUND1

Plaintiff Christopher Cortico is an individual residing in New Jersey who on July 20, 2022,

was employed by WFS as a ramp agent at Newark Liberty International Airport. (ECF 3, FAC ¶

1.) WFS is a Delaware Corporation that had a contract with Transporte Aereos Portuguese (“TAP”)

1 The allegations in the Complaint must be accepted as true solely for purposes of this Motion, except where

conclusory and/or implausible. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S.

544, 555 (2007). The Court also relies on documents integral to or relied upon by the Complaint and the public record.

See In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997).

to provide ground handling and cargo service to TAP at Newark Liberty International Airport and

was the employer of Plaintiff during the injury in question. (Id. ¶ 5.)

On July 20, 2022, and while in the course of his employment as a ramp agent for WFS,

Plaintiff entered a TAP airplane that arrived at Newark Liberty International Airport to unload

passenger baggage and cargo that was in the luggage/cargo compartment. (Id. ¶ 10.) Plaintiff

entered the luggage compartment to unload the passenger baggage and pushed the luggage to the

door of the compartment where a co-worker collected the luggage and put it on a TUG Belt Loader

which transported the luggage to the tarmac. (Id. ¶ 11.) When Plaintiff completed unloading the

passenger luggage, he noticed that his pants were wet, and he also observed that the floor of the

luggage compartment was also wet. (Id. ¶ 12.) Plaintiff unhooked the corner of the cargo net and

moved a couple of boxes to locate the source of the slippery fluid. He observed that the fluid was

leaking out of a TAP Maintenance Engineering Box that was loaded on the plane upside down. (Id.

¶ 13.) Plaintiff left the luggage compartment, but as he stepped on the TUG Belt Loader to exit

the airplane, his right foot slipped on the liquid, and he fell to the tarmac, sustaining injuries. (Id.

¶ 14.)

Plaintiff initially filed a Complaint in this Court on July 10, 2024. (See ECF 1.) On July

17, 2024, Plaintiff filed the operative FAC. (See ECF 3.) On August 21, 2024, Defendant WFS

filed the instant Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6).

II. LEGAL STANDARD

Federal Rule of Civil Procedure 12(b)(6) governs motions to dismiss for “failure to state a

claim upon which relief can be granted[.]” For a complaint to survive dismissal under the rule, it

must contain sufficient factual matter to state a claim that is plausible on its face. Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim

is facially plausible “when the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft, 556 U.S. at

678. Although the plausibility standard “does not impose a probability requirement, it does require

a pleading to show more than a sheer possibility that a defendant has acted unlawfully.” Connelly

v. Lane Const. Corp., 809 F.3d 780, 786 (3d Cir. 2016) (internal quotation marks and citations

omitted). As a result, a plaintiff must “allege sufficient facts to raise a reasonable expectation that

discovery will uncover proof of [his] claims.” Id. at 789.

In evaluating the sufficiency of a complaint, district courts must separate the factual and

legal elements. Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009). Restatements of

a claim's elements are legal conclusions, and therefore, not entitled to a presumption of

truth. Burtch v. Milberg Factors, Inc., 662 F.3d 212, 224 (3d Cir. 2011). The Court, however, “must

accept all of the complaint's well-pleaded facts as true.” Fowler, 578 F.3d at 210. Even if plausibly

pled, however, a complaint will not withstand a motion to dismiss if the facts alleged do not state

“a legally cognizable cause of action.” Turner v. J.P. Morgan Chase & Co., No. 14-7148, 2015

LEXIS 185621, at *2 (D.N.J. Jan. 23, 2015).

III. ANALYSIS

In the First and Second Counts of the FAC, Plaintiff alleges that TAP and/or ABC

Corporations 1-5, and/or ABC Corporations 1-6 were responsible for providing a safe work

environment and were negligent in loading the TAP Maintenance Engineering Box upside down,

which caused the slippery fluid to leak from the box, that they failed in their duty to provide

Plaintiff with a safe workplace, and that that failure was the proximate cause of his injuries. (ECF

3, FAC ¶¶ 15-23.) As to WFS, in Count 3 of the FAC (id. ¶¶ 21-31), Plaintiff alleges that in training

its employees not to deploy both guardrails when using the TUG Belt Loader, WFS knew that it

was a “substantial certainty that failure to use the guard rail would cause harm to its employees,

including the plaintiff” (id. ¶ 29), and that preventing Plaintiff from accessing the very safety

equipment which the manufacturer intended to be used to prevent fall injuries is not a fact of life

of industrial employment but instead constitutes an intentional wrong that plainly goes beyond

anything the New Jersey Workers’ Compensation Act’s bar to the civil liability of an employer.

(Id. ¶ 30.) Finally, Plaintiff claims that the “intentional wrongdoing of WFS in training its

employees to not engage both guard rails of the TUG Belt Loader was a proximate cause” of his

injuries. (Id. ¶ 31.)

Notwithstanding the exclusivity provision set forth in the New Jersey Workers'

Compensation Act (“WCA”), N.J. Stat. Ann. § 34:15–8, Plaintiff claims liability under Laidlow v.

Hariton Machinery Company, Inc., 790 A.2d 884 (N.J. 2002), in that Defendants “knew that it was

a substantial certainty that the failure to use the guard rail would cause harm to its employees

including the plaintiff.” (ECF 3, FAC ¶ 29; 790 A.2d 884.) Plaintiff alleges that the “intentional

wrongdoing of WFS in training its employees to not engage both guard rails of the TUG Belt

Loader was a proximate cause of the grievous permanent injuries sustained by plaintiff.” (FAC ¶

14.)

The WCA 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.

N.J. Stat. Ann. § 34:15–8 (emphasis added). Where an employee’s injury is compensable by way

of the WCA, the employee loses the right to bring an action on account of those injuries at common

law. See id.; see also Shorter v. Quality Carrier, No. 14-4906, 2014 WL 7177330, at *2 (D.N.J.

Dec. 16, 2014). This compensation system represents a “historic ‘trade-off’ whereby employees

relinquish their right to pursue common-law remedies in exchange for prompt and automatic

entitlement to benefits for work-related injuries.” Laidlow, 790 A.2d at 886 (citing Millison v. E.I.

du Pont de Nemours & Co., 501 A.2d 505, 525 (N.J. 1985)). An exception to the exclusivity rule

exists—and thus an employee retains the right to bring an action at common law—for injuries

sustained as the result of an employer’s intentional wrong. N.J. Stat. Ann. § 34:15–8.

To qualify for the intentional wrong exception, a plaintiff must satisfy the two-pronged test

articulated by the New Jersey Supreme Court in Millison. See 501 A.2d at 513-14. Under the

“conduct” prong, the plaintiff must show that the employer acted with knowledge that it was

substantially certain that a worker would suffer injury. Mull v. Zeta Consumer Prods., 823 A.2d

782, 785 (N.J. 2003) (quoting Laidlow, 790 A.2d at 894). The “context” prong requires the

plaintiff to show that “the resulting injury and the circumstances of its infliction on the worker

[are] (a) more than a fact of life of industrial employment and (b) plainly beyond anything the

Legislature intended the Workers' Compensation Act to immunize.” Mull, 823 A.2d at 785

(quoting Laidlow, 790 A.2d at 894). A plaintiff must prove both prongs of the test to satisfy the

intentional wrong exception. See Millison, 501 A.2d at 514.

Plaintiff has failed to allege sufficient facts in his Complaint to satisfy this “formidable

standard.” Birch v. Wal-Mart Stores, Inc., No. 15-1296, 2015 WL 8490938, at *4 (D.N.J. Dec. 9,

2015). Here, Plaintiff’s “threadbare recital” of the elements of an intentional wrong, coupled with

legal conclusions, cannot survive Defendant’s motion to dismiss. See Iqbal, 556 U.S. at 678–79.

Regarding the “conduct” prong, Plaintiff alleges generally that there was “substantial certainty”

that injury would result, and that the Defendants committed “intentional wrong[s].” Though

Plaintiff alleges in a conclusory manner that WFS’s conduct in training its employee to use only

one guard rail was intentional, Plaintiff has not pleaded any facts showing that WFS knew that

there was a “virtual certainty that injury or death would occur as a result of its conduct.” Laidlow,

790 A.2d at 896-97. This allegation, without an allegation of knowledge that this act was

substantially certain to lead to injury, is not enough to escape the exclusivity provision of the

WCA.2

Second, Plaintiff has failed to allege facts that would support finding that the context

surrounding Defendant’s conduct and Plaintiff’s resulting injury was either more than a fact of life

of his employment or plainly beyond the intended scope of the WCA. Indeed, claiming that

Cortico’s injury “is not a fact of life of industrial employment,” while a closer call, considering the

lack of fact discovery at the initial pleading stage, still does not provide any factual allegations

establishing that a potential fall was not a risk of Cortico’s employment plainly beyond anything

contemplated by the Legislature. The New Jersey Supreme Court has clarified that the WCA

differentiates between “dangers present in the workplace itself” and the employer’s “intentional

deception.” Van Dunk v. Reckson Assoc's Realty Corp., 45 A.3d 965, 980 (N.J. 2012). While the

latter would fall within the “intentional wrong” exception, the former does not. Marmone v.

Gerdau, No. 20-02903, 2021 WL 791848, at *3 (D.N.J. Feb. 26, 2021). Here, there is no indication

that the Plaintiff’s injuries were the result of any intentional deception or any other intentional

conduct by Defendant. Accordingly, Plaintiff’s claim is barred by the WCA.

IV. CONCLUSION

For the foregoing reasons, Defendant’s motion to dismiss Plaintiff’s FAC is GRANTED,

and Plaintiff’s FAC is DISMISSED without prejudice. An appropriate order accompanies this

opinion.

2 See Laidlow, 790 A.2d at 898 (declining to establish a per se rule that an employer's removal of a safety

guard or device establishes an “intentional wrong” within the meaning of the WCA); Mabee v. Borden, Inc., 720 A.2d

342, 348-49 (NJ. Super. Ct. App. Div. 1998) (alteration or removal of a safety device does not present a per se prima

facie case of “intentional wrong”).

/s/ Jamel K. Semper .

HON. JAMEL K. SEMPER

United States District Judge

Orig: Clerk

cc: James B. Clark, U.S.M.J.

Parties