# Tomeo v. Thomas Whitesell Construction Co.

> Supreme Court of New Jersey · May 22, 2003 · 176 N.J. 366

URL: https://www.frixlaw.com/law-library/cases/9764887

## Case

- **Full name:** Joseph Tomeo, Plaintiff-Appellant, and Susan E. Tomeo, Plaintiff, v. Thomas Whitesell Construction Company, Inc., a Corporation, Defendant-Respondent, and John Doe, (Fictitious Named Defendant), Defendant
- **Court:** Supreme Court of New Jersey
- **Decided:** May 22, 2003
- **Citations:** 176 N.J. 366; 823 A.2d 769; 2003 N.J. LEXIS 560
- **Precedential status:** Published
- **Opinion:** Dissent by Zazzali
- **Judges:** Coleman, Zazzali, Albin
- **Cited by:** 24 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9764887

## How later opinions describe it (automated extraction)

- concluding that employer's deactivation of a safety lever on a snow blower did not meet the "intentional wrong" exception of N.J.S.A. 34:15-8, where the snow blower still had warning labels that adequately informed the injured employee not to put his hand in the chute while it…
- affirming summary judgment dismissing negligent-training claim as to employee’s use of snowblower, concluding “[n]o special training was required to be given . . . because it is a consumer product” with adequate warnings and instructions

## Opinion text

ZAZZALI, J.,
dissenting.
Because I believe that evidence that an employer disabled or knowingly tolerated the disabling of a safety device creates a *379 rebuttable presumption that the employer knew harm to an employee was substantially certain to result, Mull v. Zeta Consumer Products, 176 N.J. 385, 393-94 , 823 A.2d 782, 786-87 (2003) (Zazzali, J., concurring), I respectfully dissent from the majority’s conclusion that the trial court erred in denying defendant’s motion for summary judgment.
As the panel below noted, “that defendant was responsible for disabling the safety device on the snow blower” was “an inference that could be drawn.” Defendant admitted in its answer that the “snow blower was owned and/or under the control of the defendanVemployer.” In addition, plaintiffs deposition testimony indicated that the snow blower’s safety lever was disabled at the time of plaintiffs injury. Applying the rebuttable presumption I propose and viewing the facts in the light most favorable to plaintiff, a material issue of fact exists in respect of whether a known substantial certainty of harm was present. Accordingly, the trial court’s denial of defendant’s motion for summary judgment was appropriate. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 , 666 A.2d 146 (1995).
The majority states in dicta that defenses such as “the presence of the warning labels, the consumer-user expectation and obviousness of danger incorporated into our Products Liability Act, N.J.S.A. 2A:58C-3a(2), and the presumption that users of consumer products will heed the warnings with respect to dangers inherent in the consumer product should be considered under the context prong articulated in Millison.” Ante at 375, 823 A.2d at 776 . Notwithstanding my opposition to continued application of the context prong, see Crippen v. Central Jersey Concrete, 176 N.J. 397, 413-14 , 823 A.2d 789, 799-800 (2003) (Zazzali, J., concurring), I agree with Justice Albin’s conclusion that the defenses available to a product liability defendant under N.J.S.A. 2A:58C-3 should not afford an employer summary judgment under N.J.S.A 34:15-8 without a further inquiry into the culpability of that employer’s conduct. I do believe, however, that to the extent that an employer knows harm to an employee is unlikely to *380 result because of the presence of warning labels or the obviousness of danger, those facts may be probative of whether the degree of risk created by the employer is tantamount to a “known substantial certainty of harm.” Accordingly, when an employer proffers such rebuttal evidence it generally should be admissible to aid the jury in determining whether the employer possessed the requisite state of mind to justify liability in intentional tort.
I would affirm the trial court’s denial of summary judgment.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9764887. Public record. Not legal advice.