Tomeo v. Thomas Whitesell Construction Co.

ALBIN, J.,

dissenting.

The standard of review on a motion for judgment notwithstanding the verdict is to view the evidence in the light most favorable to the plaintiff. Dolson v. Anastasia, 55 N.J. 2, 5-6 , 258 A.2d 706 (1969). Had the majority followed that simple admonition and not cast itself as the seventh juror, it would not have set aside the verdict rendered by the jury in favor of plaintiff. Instead of applying traditional principles of appellate review, the majority has sifted through the record to support its own theory of the case. I find ample evidence in the record to support the verdict of the jury. I also believe that the time has come to enunciate a clear and definitive rule that an employer’s willful and knowing disengagement or removal of a safety device, the purpose of which is to protect an employee from death or 'serious bodily injury, constitutes an intentional wrong under N.J.S.A. 34:15-8, stripping the employer of immunity from a common-law tort action. Cf. Mull v. Zeta Consumer Prods., 176 N.J. 385, 393-96 , 823 A.2d 782, 786-88 (2003) (Zazzali, J., concurring) (proposing rebuttable presumption that employer knew harm to employee was substantially certain to result if employer knowingly disabled or tolerated disabling of safety device). I, therefore, respectfully dissent.

The following evidence supported the verdict rendered by the jury. Whitesell Construction hired plaintiff to install sprinkler systems in commercial buildings. On January 9, 1996, plaintiff *381 reported to work to do the job for which he was trained and hired. Due to a recent storm, snow covered defendant’s property and plaintiff was asked by defendant’s vice-president to help clear the property by using the company’s snow blower. Plaintiff had used a snow blower only once before in his life, approximately four years earlier in the course of his employment with defendant, and on that occasion only for a few minutes. In this case, plaintiff was unfamiliar with the Toro model 1132 snow blower and given as little as five minutes instruction on its use by another employee. In that crash course, plaintiff was not alerted to nor did he see any warnings on the snow blower. He did not know that there were blades that rotated in the ejection chute of the machine. He did not know and was not told that on the handlebar of the snow blower was a safety lever that activated the blades only when the lever was depressed. He did not know and was not told that the safety lever was rendered useless by one of defendant’s agents who used electrical tape to bind the lever to the handlebar, leaving the blades in the chute constantly rotating.

Unfamiliar and unschooled in the use of that dangerous machine, plaintiff went about the task he was asked to do, to clear the walkway of snow. When the snow got clogged in the ejection chute, knowing no better, unaware that the safety lever had been disengaged, plaintiff placed his hand into the chute to clear the snow. The rotating blades in the chute mangled plaintiffs fingers.

In returning a verdict in favor of plaintiff, the jury unanimously concluded that: 1) defendant “intentionally disabled the dead-man’s switch on the snow blower with the intention that someone would be injured or so that it was substantially or virtually certain that someone would be injured” and 2) the intentional disabling of the deadman’s switch was a proximate cause of plaintiffs injury. The jury awarded plaintiff $160,000 in damages. The trial court denied the defense motion for a judgment notwithstanding the verdict. The Appellate Division reversed and entered an order dismissing plaintiffs complaint on the basis that the employee’s exclusive remedy for his work-related injury was workers’ com-

*382 pensation pursuant to N.J.S.A. 34:15-8 because the employer did not engage in an “intentional wrong.” Our Court, in my estimation, has erroneously affirmed that judgment.

The majority accepts as truth disputed facts and imputes to plaintiff knowledge of the dangers of the snow blower based on warning decals on the machine that were never seen by plaintiff and may have been obstructed by snow on the day of the accident. Plaintiff testified to the rushed circumstances that placed him in control of the machine. The majority argues that in light of the warning decals, plaintiffs insertion of his hand into the chute was an intervening cause, which absolved the employer of liability. First, the purpose of the safety lever was to ensure that such an “intervening cause” would never happen. Second, the theory of intervening causation was a matter for the jury to decide rather than this Court.

Moreover, the majority treats the snow blower as though it were a consumer product purchased by plaintiff, as though under the circumstances plaintiff had the time to read an instruction manual and the luxury to inspect the machine for warning labels. The majority ignores the reality of the workplace conditions of plaintiff, who with little training in a task not part of his customary duties had a dangerous machine, stripped of its safety device, placed into his hands so that the employer could have his walkway cleared of snow. The majority imports into the analysis “consumer-use” expectations, N.J.S.A. 2A:58C-3a(2), as they apply in the New Jersey Products Liability Act, N.J.S.A 2A:58C-1 to -11, in order to conclude that plaintiff acted with gross negligence in the face of an obvious danger. That analysis is misplaced in the context of the workplace and would turn the clock back on worker safety, diverting attention from intentional acts of employers that expose employees to foreseeable and avoidable injuries. See Brunell v. Wildwood Crest Police Dep’t, 176 N.J. 225, 235-38 , 822 A.2d 576 (2003) (discussing history and purpose of Workers’ Compensation Act). Safety devices are required on machines, in part, to protect workers from their own errors, whether from *383 inattention or neglect. An employer who intentionally removes or disengages a safety device knowing with substantial certainty that serious injury to a worker will follow should not reach safe haven because the worker was careless not to protect himself. Machinery in the workplace is no less dangerous because it may have some other consumer or commercial use. Plaintiff was a worker and the use of the snow blower at the behest of his employer did not transform him into a consumer of the product.

I also would find that the willful and knowing disengagement of a safety device that is intended to protect the worker from serious bodily injury or death removes this case from the workers’ compensation scheme and permits the worker to file a common-law claim against his employer. It is a simple and clear rule that will be easily understood by employers, and will likely deter them fi"om cutting corners for the sake of profits and short-term efficiency at the expense of worker safety. It is a rule that will likely save lives and decrease maiming injuries.

The progressive development of our workers’ compensation laws has been leading us toward that destination. Our most recent exposition on this subject is found in Laidlow v. Hariton Machinery Co., 170 N.J. 602 , 790 A.2d 884 (2002), which reaffirmed the standard set forth in Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 161, 177-79 , 501 A.2d 505 (1985):

[I]n order for an employer’s act to lose the cloak of immunity of N.J.S.A. 34:15-8, two conditions must be satisfied: (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 , 790 A.2d 884 .]

In Laidlow , the Court found sufficient evidence in the record to support the “intentional wrong” standard. There, the employer purposely disengaged a safety device from a machine until the employee, who operated the machine, suffered a serious, but preventable, injury. Before the “accident,” the safety guard was placed in its proper position only for the limited purpose of *384 satisfying inspectors from the Occupational Safety and Health Administration (OSHA) that all was well in the plant. The employee had asked his superiors on three occasions to restore the safety guard to its proper position, and each request was denied because the safety guard interfered with “speed and convenience.” Id. at 608-09 , 790 A.2d 884 . We concluded that a jury could find that it was “substantially certain that the removal of the safety guard would result eventually in the injury to one of its employees.” Id. at 622, 790 A.2d 884 . The Court eschewed a “per se ” rule that an employer’s conduct will meet the “intentional wrong” standard under N.J.S.A. 34:15-8 “whenever that employer removes a guard or similar safety device from equipment or machinery, or commits some other OSHA violation.” Id. at 622-23, 790 A.2d 884 . The Court held that each case must be decided on the totality of facts contained in the record. Id. at 623, 790 A.2d 884 .

Laidlow was a laudable and timely expansion of the Millison doctrine. I believe, however, we must go further and recognize that in the year 2003 an employer’s willful and knowing removal or disengagement of a safety device intended to protect a worker from serious bodily injury or death is not a “simple fact” of industrial life, that such conduct alone is a total breach of the social contract between the employee and employer, and that under those circumstances the employer should be barred from the safe harbor of the Workers’ Compensation Act. I am convinced that the Legislature would not intend an employer’s utter and intentional disregard for the safety of workers to bar an injured employee a common-law cause of action. Whether there is deception of OSHA inspectors, as was the case in Laidlow , or not, should not be determinative in the analysis. Removing or disabling a safety device for no purpose other than efficiency and economy should be the sine qua non for a cause of action. Temporary removal or disengagement of a safety device for repair, maintenance, or some other benign purpose would not be actionable. That test has the benefit of providing a clear message of what is no longer an acceptable fact of industrial life. There must be symmetry in the law. It should not be that a victim has a *385 product-liability cause of action against a manufacturer for failing to provide a safety device that could have prevented a foreseeable injury, see, e.g., Ramos v. Browning Ferris Indus. of S. Jersey, Inc., 103 N.J. 177, 183-85 , 510 A.2d 1152 (1986); Stephenson v. R.A. Jones & Co., 103 N.J. 194, 197-99 , 510 A.2d 1161 (1986), but no common-law tort remedy against an employer, who deliberately removes the safety device.

For those reasons, I would reverse the judgment of the Appellate Division, which set aside the jury verdict awarding plaintiff damages for his injuries.

For affirmance — Chief Justice PORITZ and JUSTICES COLEMAN, VERNIERO, and LaVECCHIA-4.

Dissenting — Justices ZAZZALI and ALBIN — 2.