(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in
the interests of brevity, portions of any opinion may not have been summarized).
Argued November 5, 2001 -- Decided February 25, 2002
LONG, J., writing for a unanimous Court.
The issue before the Court is whether an employer's removal of a safety guard from an industrial machine
operated by an employee constitutes an intentional wrong exposing the employer to tort liability outside of the
Workers' Compensation Act.
In 1992, Rudolph Laidlow, an employee of AMI-DDC, Inc. (AMI), suffered a serious injury when his hand
was caught in a rolling mill being operated without a safety nip guard. Actually, AMI had a safety guard installed
in 1979, but the guard was never engaged during normal operation. The only time the guard was engaged was when
Occupational Safety and Health Administration (OSHA) inspectors came to the plant. Laidlow operated the
machine with the safety guard disengaged for a period of twelve to thirteen years. During that time, there were no
reported injuries, but there were a number of close calls, and Laidlow himself had on three occasions spoken to his
immediate supervisor, Portman, regarding the safety guard. AMI conceded that the guard was removed for “speed
and convenience.”
Laidlow sued AMI on an intentional tort theory. He also named Portman in the suit for discovery
purposes. Both AMI and Portman moved for summary judgment, claiming that the Workers' Compensation Act
barred Laidlow from pursuing common law remedies. The trial court held that Laidlow failed to demonstrate an
“intentional wrong” and that Workers' Compensation was his exclusive remedy. The trial court granted both
motions for summary judgment.
The Appellate Division affirmed the dismissals, concluding that there was no evidence of an intentional
wrong by AMI to warrant an exception from the Workers' Compensation bar. The Appellate Division relied on the
lack of any accident over a twelve-year period and determined that OSHA violations alone, in the absence of proof
of deliberate intent to injure, would not satisfy the intentional wrong standard. The court dismissed the suit against
Portman because Laidlow failed to demonstrate any need to pursue discovery.
Judge Lintner dissented, contending that the record presented a jury issue regarding intentional wrong; that
the lack of injuries over the twelve-year period was not dispositive of the issue of substantial certainty of injury;
that, coupled with the guard's removal, AMI's deceptive practices with regard to OSHA provided conclusive
evidence of “context” under Millison; and that Laidlow should have been allowed to obtain discovery from
Portman.
The appeal is before the Supreme Court as of right under R. 2:2-1(a)(2) based on the dissenting opinion
below. The Court granted amicus curiae status to the Trial Lawyers of America (ATLA-NJ) and to the New Jersey
Manufacturer's Insurance Company (NJM).
HELD: Where an employee alleges that his employer removed a safety device from a dangerous machine, knowing
that the removal was substantially certain to result in injury to its workers and, in addition, deliberately and
systematically deceived safety inspectors into believing that the machine was properly guarded, and the employee's
allegations are proven, both the conduct and context prongs of Millison are satisfied, entitling the employee to
pursue his common-law remedies.
1. In Millison v. E.I. du Pont de Nemours & Co.,
101 N.J. 161 (1985), this Court was faced with the question of
what categories of employer conduct will be sufficiently flagrant so as to constitute an intentional wrong, thereby
entitling a plaintiff to avoid the so-called exclusive remedy provision of the Workers' Compensation Act. First, the
Court rejected Professor Larsons's thesis that in order to obtain redress outside the Workers' Compensation Act an
employee must prove that the employer subjectively desired to harm him. Instead, the Court adopted Prosser's
substantial certainty test for intentional wrong, a test encompassing acts that the employer knows are substantially
certain to produce injury even though, strictly speaking, the employer does not will that result. Second, an
employer loses the cloak of immunity afforded by the Workers' Compensation Act when the employer knows that
his actions are substantially certain to result in injury or death to the employee, when the resulting injury and the
circumstances of its infliction on the worker are more than a fact of life of industrial employment and plainly
beyond anything the Legislature intended the Workers' Compensation Act to immunize. (Pp. 11-22)
2. This Court fully subscribes to the holding in Mabee v. Borden, Inc.,
316 N.J. Super 218 (1998) that removal of a
safety guard can meet the intentional wrong standard and that such a determination requires a case-by-case analysis.
(Pp. 23-25)
3. The Court agrees with Judge Lintner's dissent in respect of Laidlow's right to discovery from Portman and that
summary judgement is inappropriate without such discovery. Moreover, apart from the discovery issue, summary
judgment should have been denied to AMI and the case sent to a jury on the issue of substantial certainty. A
reasonable jury could conclude, in light of all the surrounding circumstances, including the prior close-calls, the
seriousness of any potential injury that could occur, Laidlow's complaints about the absent guard, and the guilty
knowledge of AMI as revealed by its deliberate and systematic deception of OSHA, that AMI knew that it was
substantially certain that removal of the safety guard would result eventually in injury to one of its employees, the
absence of prior accidents notwithstanding. Moreover, the Legislature would never consider such actions or injury
to constitute simple facts of industrial life qualifying them for immunity under the Workers' Compensation Act.
Removal of a safety guard by an employer, however, does not establish a per se intentional wrong: An analysis of
the totality of the circumstances is required. (Pp. 25-31)
4. Although the same facts and circumstances will be relevant to both prongs of Millison, as a practical matter,
when an employee sues an employer for an intentional tort and the employer moves for summary judgment based
on the Workers' Compensation bar, the trial court must make two separate inquiries: If the substantial certainty
standard presents a jury question and if the court concludes that the employee's allegations, if proved, would meet
the context prong, the employer's motion for summary judgment should be denied; if not, it should be granted. (Pp.
31-33)
The judgment of the Appellate Division is REVERSED. The matter is REMANDED for trial after
plaintiff is afforded a reasonable opportunity to complete discovery concerning Portman.
CHIEF JUSTICE PORITZ and JUSTICES STEIN, COLEMAN, VERNIERO, LaVECCHIA, and
ZAZZALI join in Justice LONG's opinion.
SUPREME COURT OF NEW JERSEY
A-
89 September Term 2000
RUDOLPH LAIDLOW and JEAN
LAIDLOW,
Plaintiffs-Appellants,
v.
HARITON MACHINERY COMPANY,
INC.,
Defendant,
and
RICHARD PORTMAN and ADVANCED
METALLURGY AMI-DDC INC., a
Division of Technitrol,
Defendants-Respondents,
and
JAY HILL INDUSTRIES, INC.,
UNITED ENGINEERING AND
FOUNDRY CO., INC., ART
WIRE/DODUCO, UESC INC., WEAN
INC., BARTO INC., UNITED
ENGINEERING INC., UNITED
FOUNDRY INC., DANIELI UNITED,
a Division of United Foundry
Inc., JOSEPH YASENKA,
Individually and t/a JAY HILL
INDUSTRIES, JAY HILL
INDUSTRIES, an unincorporated
entity, AA CO., INC., BB CO.,
INC., CC CO., INC., DD CO.,
INC., said names being
fictitious; JOHN DOE, RICHARD
ROE, RICHARD DOE and JOHN
ROE, said names being
fictitious,
Defendants.
Argued November 5, 2001 -- Decided February 25, 2002
On appeal from the Superior Court, Appellate
Division, whose opinion is reported at 335
N.J. Super. 330 (2000).
Kenneth J. Fost argued the cause for
appellants (Fost, Muscio & Caruso,
attorneys).
Kenneth E. Pogash argued the cause for
respondent AMI-DDC, Inc. (Guida, Fabricant &
Bressler, attorneys).
John J. Murphy, III, argued the cause for
respondent Richard Portman (Stradley Ronon
Stevens & Young, attorneys; Mr. Murphy and
Francis X. Manning, on the brief).
Michael A. Galpern submitted a brief on
behalf of amicus curiae Association of Trial
Lawyers of America-New Jersey Chapter
(Greitzer and Locks, attorneys; Mr. Galpern
and Margaret M. Allen, of counsel and on the
brief).
Michael J. Marone submitted a brief on
behalf of amicus curiae New Jersey
Manufacturers Insurance Companies (McElroy,
Deutsch & Mulvaney, attorneys; Mr. Marone
and Richard J. Williams, Jr., of counsel and
on the briefs).
The opinion of the court was delivered by
LONG, J.
The Workers' Compensation system has been described as an
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. Millison v.
E.I. du Pont de Nemours & Co.,
101 N.J. 161, 174 (1985). That
characterization is only broadly accurate. In fact, not every
worker injured on the job receives compensation benefits and not
all conduct by an employer is immune from common-law suit. The
Legislature has declared that certain types of conduct by the
employer and the employee will render the Workers' Compensation
bargain a nullity. Thus, for example, a worker whose death or
injury is “intentionally” self-inflicted or results from a
“willful” failure to make use of a safety device, furnished and
required by the employer, will be ineligible for benefits.
N.J.S.A. 34:15-7; Akef v. BASF Corp.,
140 N.J 408, 412-413
(1995). Likewise, an employer who causes the death or injury of
an employee by committing an “intentional wrong” will not be
insulated from common-law suit. N.J.S.A. 34:15-8; Millison,
supra, 101 N.J. at 169.
The described limitations involve intentional wrongful
conduct committed either by the worker or the employer.
Underlying those limitations is the idea that such conduct
neither constitutes “a natural risk of” nor “arises out of” the
employment, the very notions at the heart of the Workers'
Compensation bargain in the first instance. See generally Modern
Workers Compensation, § 102.20 (2001).
The focus of this appeal is conduct by an employer that is
alleged to constitute an intentional wrong under N.J.S.A. 34:15-
8. We are called on to revisit our holding in Millison; resolve
conflicting interpretations of it; and apply that decision to a
case in which an injured employee claims that his employer has
removed a safety device from a dangerous machine, knowing that
the removal was substantially certain to result in injury to its
workers and, in addition, deliberately and systematically
deceived safety inspectors into believing that the machine was
properly guarded. We hold that, in those circumstances, the
employee's allegations, if proven, meet both the conduct and
context prongs of Millison, thus entitling the employee to pursue
his common-law remedies.
I
Rudolph Laidlow (Laidlow) suffered a serious and
debilitating injury when his hand became caught in a rolling mill
he was operating at his place of employment, AMI-DDC, Inc. (AMI).
Laidlow sustained a crush and degloving injury resulting in
partial amputations of the index, middle, ring and small fingers
of his dominant left hand. Laidlow sued AMI on an intentional
tort theory. He also named his supervisor, Richard Portman
(Portman), in the suit for discovery purposes. AMI answered,
denying the allegations of the complaint, and moved for summary
judgment on the basis of the Workers' Compensation bar.
Under Rule 4:46-2, a movant will be granted summary judgment
if the court finds, after reviewing the full motion record in the
light most favorable to the adverse party, that there is no
genuine issue of material fact. Brill v. Guardian Life Insurance
Company of America,
142 N.J. 520, 533 (1995). It is with that
standard in mind that we view the facts presented on AMI's
motion.
AMI is in the business of manufacturing electrical products.
Laidlow has been employed by AMI since August 7, 1978. On
December 11, 1992, Laidlow was performing his job as a "set up
man," which required him to work with a rolling mill that changed
the dimension of heated metal bars when they were inserted into
the mill. Laidlow manually inserted the bars into a "channel"
that guided them into the mill, and often had to apply pressure
to the bars with his hand in order to feed them into the rollers.
On the day of the accident, Laidlow's glove became caught by the
unguarded nip point as he was pushing a bar of silver into the
channel. His gloved hand was pulled toward the mill's rollers.
An eyewitness, Laidlow's co-worker Steven Smozanek, described the
incident as follows: "The rollers are approximately 18 inches in
diameter, and as he was feeding the bar into the roller, it
pulled his hand against the roller, not into the roller, and as
it pulled the hand against the roller, it just ripped the glove
and the skin right off his hand."
On a prior occasion, Laidlow's glove had also become hooked
on a bar, but he was able to slip his hand out of the glove
before it was pulled into the machine. Smozanek described a
similar incident when he was working on the mill and his gloved
hand had snagged on a bar, but he too was able to pull his hand
out of the glove just in time to escape injury. Those close
calls were reported to AMI.
After the rolling mill was purchased by AMI in 1978, the
company arranged to have a safety guard installed. However, the
safety guard was "never" engaged; from 1979 to the date of
Laidlow's accident in 1992, the guard always was "tied up."
According to Laidlow, the guard was placed in its proper position
only when Occupational Safety and Health Administration (OSHA)
inspectors came to the plant. On those occasions, Portman,
Laidlow's supervisor, would instruct employees to release the
wire that was holding up the safety guard. As soon as the OSHA
inspectors left, the safety guard would again be disabled.
Laidlow operated the mill without the safety guard in place
for approximately twelve to thirteen years. During that period,
except for the "near misses" referred to earlier, there were
apparently no accidents with the mill until Laidlow was seriously
injured during the incident at issue here.
Laidlow spoke to Portman regarding the safety guard three
times during the period immediately preceding his accident.
Approximately two weeks prior to the accident, Laidlow asked
Portman to restore the guard. Several weeks before that, he
spoke to Portman because a new operator was going to work on the
mill and Laidlow thought the guard should be restored to its
operative position. Additionally, one week before the incident,
Laidlow again expressed concern that a new, inexperienced
operator would be working on the mill, and told Portman that it
was dangerous not to use the guard. According to Laidlow, the
guard was never restored. Portman responded to his requests by
stating that "it was okay" and "not a problem," and by "walk[ing]
away." Laidlow never refused to operate the mill without the
safety guard in place nor spoke with any other superior in the
company about the safety guard.
AMI concedes that the guard was removed for “speed and
convenience.” In addition, Gerald Barnes, a professional
engineer retained by Laidlow, certified that AMI "knew there was
a virtual certainty of injury to Mr. Laidlow or a fellow work[er]
arising from the operation of the mill without a guard.”
On those facts, the trial court concluded that Laidlow
failed to demonstrate an “intentional wrong” under N.J.S.A.
34:15-8 and that Workers' Compensation was his exclusive remedy.
Accordingly, the trial court granted AMI's motion for summary
judgment, along with a similar motion filed by Portman.
The Appellate Division affirmed the dismissals, concluding
that there was no evidence of an intentional wrong by AMI to
warrant an exception from the Workers' Compensation bar. Laidlow
v. Hariton Machinery Co., Inc.,
335 N.J. Super. 330 (2000). The
panel relied on the lack of any accident over a twelve-year
period and determined that OSHA violations alone, in the absence
of proof of deliberate intent to injure, would not satisfy the
intentional wrong standard. The court dismissed the suit against
Portman because Laidlow failed to demonstrate any need to pursue
discovery. Id. at 343.
Judge Lintner dissented, contending that the record, fairly
read, presented a jury issue regarding intentional wrong; that
the lack of injuries over the twelve-year period was not
dispositive of the issue of substantial certainty of injury;
that, coupled with the guard's removal, AMI's deceptive practices
with regard to OSHA provided conclusive evidence of “context”
under Millison; and that Laidlow should have been allowed to
obtain discovery from Portman because Portman was in a unique
position to provide evidence of what the employer knew. Id. at
347-49.
The appeal is before us as of right under Rule 2:2-1(a)(2)
based on the dissenting opinion below. We granted Amicus status
to the Trial Lawyers of America (ATLA-NJ) and New Jersey
Manufacturer's Insurance Company (NJM).
II
In essence, Laidlow's argument is that the combination of
the employer's disabling of the safety guard and deception of
OSHA presents a triable issue on whether such conduct meets the
definition of an “intentional wrong.” AMI counters that under
Millison, an intentional wrong requires a “deliberate intention
to injure” and that Laidlow concedes that no one at AMI harbored
such an intention. AMI also maintains that Millison specifically
declared that the removal of a safety device fails to meet the
intentional wrong standard. To the extent that recent Appellate
Division decisions, particularly Mabee v. Borden, Inc.,
316 N.J.
Super. 218 (1998), suggest the contrary, AMI argues that those
cases should be disapproved. Furthermore, AMI argues that even
if removal of a safety guard could qualify in some circumstances
as an intentional wrong, the absence of any prior injury on its
machine and Laidlow's successful experience in operating the
machine without an accident for over twelve years obviates that
possibility in this case.
NJM supports AMI's position that, under Millison, the
standard for an intentional wrong requires proof of an employer's
subjective intent to injure and that the deliberate removal or
alteration of a safety guard does not constitute a “deliberate
intent to injure.” NJM also claims that the OSHA violations are
legally irrelevant under Millison.
The heart of ATLA-NJ's position is that AMI and NJM totally
mischaracterize Millison. ATLA contends that Millison
specifically rejected the notion that an intentional wrong
requires a deliberate intent to injure on the part of the
employer; that Millison never declared that removal of a safety
device failed to meet the standard for an intentional wrong; that
Mabee correctly recognized that removal of a safety guard can
satisfy the intentional wrong standard; that the Appellate
Division's reliance on the lack of prior accidents on the mill
machine allows for “one free injury” contrary to our public
policy; and that there is a jury question regarding whether the
employer's actions constituted an intentional wrong.
III
Our decision in Millison is obviously at the root of this
case and a review of our holding there is essential. In
Millison, we were faced with the question of “what categories of
employer conduct will be sufficiently flagrant so as to
constitute an 'intentional wrong,' thereby entitling a plaintiff
to avoid the 'exclusivity' bar of N.J.S.A. 34:15-8?” Millison,
supra, 101 N.J. at 176. That statute reads:
Such agreement shall be a surrender by the
parties thereto of their rights to any other
method, form or amount of compensation or
determination thereof than as provided in
this article and an acceptance of all the
provisions of this article, and shall bind
the employee and for compensation for the
employee's death shall bind the employee's
personal representatives, surviving spouse
and next of kin, as well as the employer, and
those conducting the employer's business
during bankruptcy or insolvency.
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.
That is the so-called exclusive remedy provision of the Workers' Compensation Act, often referred to as the Workers' Compensation bar. Millison confronted that provision in the context of an occupational disease caused by exposure to asbestos during employment.
The appeal in Millison challenged a trial court's grant of summary judgment to an employer based on N.J.S.A. 34:15-8 in connection with plaintiffs' claim that the employer knowingly exposed them to an occupational disease. That court simultaneously denied summary judgment to the company doctors with respect to whom plaintiffs alleged the fraudulent concealment of their asbestos-related diseases. The Appellate Division affirmed the grant of summary judgment to the employer and reversed the denial of summary judgment to the physicians because there was no evidence that they “deliberately intended” to injure the workers.
We granted plaintiffs' petition for certification. Before us, plaintiffs argued that “their charges that defendants knowingly and deliberately exposed employees to a hazardous work environment and fraudulently concealed existing occupational diseases are sufficient to fall within the Act's limited 'intentional wrong' exception and to take their injuries outside the intended scope of the Compensation Act.” Millison, supra, 101 N.J. at 170.
In addressing that contention, we recounted the history of the intentional wrong exception that had led the Appellate Division to its conclusion that only an employer's deliberate intent to injure was sufficient to vault the exclusivity bar. We also identified the precedents underlying the Appellate Division's ruling:
Bryan v. Jeffers, 103 N.J. Super. 522, 523-24 (App. Div. 1968) certif. den., 53 N.J. 581 (1969) (intentional wrong in compensation statute means "deliberate intention" and is not equatable with gross negligence or similar concepts importing constructive intent); Arcell v. Ashland Chem. Co., 152 N.J. Super. 471, 495-96 (Law Div. 1977) (allegations of willfully and wantonly failing to undertake known safety and health procedures for protection of employees, and negotiating with governmental bodies so that contemplated implementation of such procedures would be ignored or delayed, are insufficient to satisfy intentional-wrong standard); Copeland v. Johns-Manville Prods. Corp., 492 F.Supp. 498 (D.N.J. 1980) (Bryan requires that "intentional wrong" exception be given a narrow construction; allegations that employer, aware of dangerous working conditions, maliciously and willfully exposed workers to hazardous asbestos products and intentionally withheld information concerning the health risks do not meet the standard for intentional wrong); Petruska v. Johns- Manville, 83 F.R.D. 39 (E.D. Pa. 1979) (claims of intentionally allowing defendant to be exposed to asbestos and failing to warn of known health hazards of asbestos do not meet New Jersey Workers' Compensation Act's strict definition of intentional wrong, which requires deliberate intention to injure).
We recognized that those cases traced their rationale to Professor Larson's narrow and limited approach to intentional wrong and quoted extensively from his treatise. Specifically, we cited the following section:
Even if the alleged conduct goes beyond aggravated negligence, and includes such elements as knowingly permitting a hazardous work condition to exist, knowingly ordering claimant to perform an extremely dangerous job, willfully failing to furnish a safe place to work, or even willfully and unlawfully violating a safety statute, this still falls shorts of the kind of actual intention to injure that robs the injury of accidental character.
* * *
If these decisions seem rather strict,
one must remind oneself that what is being
tested here is not the degree of gravity or
depravity of the employer's conduct, but
rather the narrow issue of intentional versus
accidental quality of the precise event
producing injury. The intentional removal of
a safety device or toleration of a dangerous
condition may or may not set the stage for an
accidental injury later. But in any normal
use of the words, it cannot be said, if such
an injury does happen, that this was
deliberate infliction of harm comparable to
an intentional left jab to the chin.
[2A A. Larson, The Law of Workmen's
Compensation § 68.13 at 13-22 to 13-27 (1983)
(footnotes omitted) (emphasis added).]
What is critical, and what often has been misunderstood, is
that we cited Professor Larson and the cases relying on his
approach for informational, not precedential, purposes.
Millison, in fact, specifically rejected Professor Larson's
thesis that in order to obtain redress outside the Workers'
Compensation Act an employee must prove that the employer
subjectively desired to harm him. In place of Larson's theory,
we adopted Dean Prosser's broader approach to the concept of
intentional wrong.
Under Prosser's approach, an intentional wrong is not
limited to actions taken with a subjective desire to harm, but
also includes instances where an employer knows that the
consequences of those acts are substantially certain to result in
such harm. See W. Prosser and W. Keeton, The Law of Torts, § 80
at 569 (5th ed. 1984). In accordance with that view, we cited
approvingly to the Restatement (Second) of Torts § 8A, which
provides, in part:
All consequences which the actor desires to
bring about are intended, as the word is used
in this Restatement. Intent is not, however,
limited to consequences which are desired.
If the actor knows that the consequences are
certain, or substantially certain, to result
from his act, and still goes ahead he is
treated by the law as if he had in fact
desired to produce the result.See footnote 11
In abandoning Larson's purely subjective approach in favor
of substantial certainty, we stated:
In adopting a “substantial certainty”
standard, we acknowledge that every
undertaking, particularly certain business
judgments, involve some risk, but that
willful employer misconduct was not meant to
go undeterred.
Put another way, we recognized that Larson's “deliberate intent to injure” standard would sweep under its protection employer conduct that the Legislature never intended to insulate. By adopting Prosser's “substantial certainty” standard, we delineated another method by which a plaintiff could prove an intentional wrong:
It may help to perceive "substantial certainty" not so much as a substantive test itself nor as a substitute for a subjective desire to injure, [than] as a specie of evidence that will satisfy the requirement of cases such as Bryan v. Jeffers, supra, 103 N.J. Super. at 523-24, that "deliberate intention" be shown.
[Ibid.]
Although noting in Millison that we were not repudiating earlier
decisions like Bryan and Arcell, by identifying our holding as a
logical “development” of the law we stated implicitly what was
obvious: that Bryan and Arcell had been modified to the extent
that an intentional wrong can be shown not only by proving a
subjective desire to injure, but also by a showing, based on all
the facts and circumstances of the case, that the employer knew
an injury was substantially certain to result.
In addition to adopting Prosser's “substantial certainty”
test relative to conduct, in Millison we added a crucial second
prong to the test:
Courts must examine not only the conduct of
the employer, but also the context in which
that conduct takes place: may the resulting
injury or disease, and the circumstances in
which it is inflicted on the worker, fairly
be viewed as a fact of life of industrial
employment, or is it rather plainly beyond
anything the legislature could have
contemplated as entitling the employee to
recover only under the Compensation Act?
By the addition of the context prong, Millison required courts to assess not only whether the employer acted with knowledge that injury was substantially certain to occur, but also whether the injury and the circumstances surrounding it were part and parcel of everyday industrial life or plainly outside the legislative grant of immunity. In other words, under Millison, if only the conduct prong is satisfied, the employer's action will not constitute an intentional wrong within the meaning of N.J.S.A. 34:15-8. That standard will be met only if both prongs of Millison are proved.
Applying the newly adopted standard to the facts in Millison, we concluded, with respect to the defendant employer, that
count one of plaintiffs' complaints seeking damages beyond those available through workers' compensation for their initial work- related occupational diseases must fall. Although defendants' conduct in knowingly exposing plaintiffs to asbestos clearly amounts to deliberately taking risks with employees' health, as we have observed heretofore the mere knowledge and appreciation of a risk--even the strong probability of a risk--will come up short of the “substantial certainty” needed to find an intentional wrong resulting in avoidance of the exclusive-remedy bar of the compensation statute. In the face of the legislature's awareness of occupational diseases as a fact of industrial employment, we are constrained to conclude that plaintiffs-employees' initial resulting occupational diseases must be considered the type of hazard of employment that the legislature anticipated would be compensable under the terms of the Compensation Act and not actionable in an additional civil suit.
Regarding the defendant physicians' conduct, however, we reached
a different conclusion:
Plaintiffs have, however, pleaded a valid
cause of action for aggravation of their
initial occupational diseases under the
second count of their complaints. Count two
alleges that in order to prevent employees
from leaving the workforce, defendants
fraudulently concealed from plaintiffs the
fact that they were suffering from asbestos-
related diseases, thereby delaying their
treatment and aggravating their existing
illnesses. As noted earlier, du Pont's
medical staff provides company employees with
physical examinations as part of its package
of medical services. Plaintiffs contend that
although plaintiffs' physical examinations
revealed changes in chest x-rays indicating
asbestos-related injuries, du Pont's doctors
did not inform plaintiffs of their
sicknesses, but instead told them that their
health was fine and sent them back to work
under the same hazardous conditions that had
caused the initial injuries.
These allegations go well beyond failing
to warn of potentially-dangerous conditions
or intentionally exposing workers to the
risks of disease. There is a difference
between, on the one hand, tolerating in the
workplace conditions that will result in a
certain number of injuries or illnesses, and,
on the other, actively misleading the
employees who have already fallen victim to
those risks of the workplace. An employer's
fraudulent concealment of diseases already
developed is not one of the risks an employee
should have to assume. Such intentionally-
deceitful action goes beyond the bargain
struck by the Compensation Act. But for
defendants' corporate strategy of concealing
diseases discovered in company physical
examinations, plaintiffs would have minimized
the dangers to their health. Instead,
plaintiffs were deceived--or so they charge--
by corporate doctors who held themselves out
as acting in plaintiffs' best interests. The
legislature, in passing the Compensation Act,
could not have intended to insulate such
conduct from tort liability. We therefore
conclude that plaintiffs' allegations that
defendants fraudulently concealed knowledge
of already-contracted diseases are sufficient
to state a cause of action for aggravation of
plaintiffs' illnesses, as distinct from any
claim for the existence of the initial
disease, which is cognizable only under the
Compensation Act.
The dissent in Millison asserted that the majority ruled on the facts of the case without any “focused attention to the details of plaintiff's allegations or explication of the substantial certainty standard.” Id. at 195. We disagree. We view the opinion in Millison as fairly addressing the substantial certainty standard in connection with both of plaintiffs' claims. Indeed, with respect to the employer's actions, the Court specifically concluded that mere toleration of workplace hazards “will come up short” of substantial certainty. Id. at 179. Given that holding, it was unnecessary for us to address the context prong. Nevertheless, we added our belief that the Legislature viewed occupational diseases as a hazard of employment compensable under the Workers' Compensation Act and not by way of common-law suit.
Although we did not explicitly make a “substantial certainty” finding about the physicians' suppression of the truth regarding the workers' already-contracted diseases, we clearly indicated that the standard was satisfied: “[t]hese allegations go well beyond failing to warn of potentially dangerous conditions or intentionally exposing workers to the risks of disease.” Id. at 182. That comparison represented the essential finding of substantial certainty with respect to the physicians' conduct. Having determined that the physicians knew that plaintiffs were substantially certain to be injured due to their deception, a ruling under the context prong was necessary. Contrary to our view of the employer's actions, we determined that the physicians' “fraudulent concealment” of the workers' diseases was not a fact of industrial life and not meant by the Legislature to be immunized from suit. Ibid. Recapping, a number of principles relevant to the present inquiry can be distilled from Millison. First, although we recognized the need for a chary interpretation of the intentional wrong exception to the Workers' Compensation bar so that the exception would not “swallow up” the rule, we clearly rejected Larson's narrow and limited approach that required subjective intention to injure. Id. at 177. Second, in rejecting that approach, we also declined to adopt Larson's conclusion concerning the effect of removal of a safety device. At the very least, that issue remained open after Millison.
Third, we adopted Prosser's substantial certainty test for intentional wrong, a test encompassing acts that the employer knows are substantially certain to produce injury even though, strictly speaking, the employer does not will that result. Fourth, although we did not repudiate Bryan, Ashland and Arcell outright, our adoption of the “substantial certainty” standard as a complement to the “subjective desire” standard governing conduct plainly modified that line of cases. Fifth, under Millison, in 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.
Borden knew of the substantial danger which inhered in the labeling machine without proper protective devices. It was aware that fifteen months before plaintiff's injury, another Borden employee had injured his hand in the unguarded Alfa Labeler while undertaking essentially the same cleaning procedure undertaken by plaintiff. Thereafter Borden installed a “V” shaped guard over the nip point of the machine to protect the operators. However, the “V” shaped guard was removed. Because the guard had been installed on a machine under the exclusive control of Borden, it is not a leap of logic to conclude that a Borden employee, at the direction of Borden's supervisors, removed the "V" shaped guard for whatever reason. It certainly cannot be disputed that Borden's supervisors knew that the “V” shaped guard had been removed.
Eleven months before plaintiff's injury,
Borden installed the Plexiglas cover. A
bypass switch was installed to permit access
to the machine for maintenance purposes. On
the disputed facts, a jury could nevertheless
conclude that a general policy was adopted by
Borden allowing operators as well unimpeded
access to the machine while in operation to
remove excess glue without interrupting
production. The switch was therefore left in
“maintenance mode” at least ninety-five
percent of the time to avoid shut down of the
machine, and Borden personnel encouraged the
operators to utilize the switch to minimize
holdups in production. Thus, a factfinder
could reasonably conclude that the Plexiglas
guard was essentially rendered ineffectual.
Moreover, although other Borden labeling
machines contained “hazard” signs, the Alfa
Labeler displayed no warning signs. Finally,
plaintiff's expert, based on the depositions
and statements of Borden personnel, opined
that alteration of the safety mechanisms
resulted in a “virtual certainty” that
employee injuries would occur.
Based on that record, Judge Havey, writing for the court, concluded that
the evidential material permitted a reasonable inference that Borden knew an occurrence of injury to an operator of the machine was substantially certain when it deliberately removed one safety guard and essentially nullified the effectiveness of the second.
We fully subscribe to Mabee's conclusion that removal of a safety guard can meet the intentional wrong standard;See footnote 22 that such a determination requires a case-by-case analysis; that the facts of Mabee presented a jury issue on substantial certainty; and that, if proved, those facts would meet the context prong of Millison.
V
We turn now to the case at bar. As a preliminary matter, we
have concluded that summary judgment should not have been granted
to AMI because discovery from Portman was incomplete. R. 4:11-3;
Davila v. Continental Can Co.,
205 N.J. Super. 205 (App. Div.
1985). We agree with Judge Lintner's observation that Portman is
uniquely positioned to “shed light on what, if any, appreciation
AMI had concerning the risk of injury associated with its
decision” to disable the safety guard. Laidlow, supra, 335 N.J.
Super. at 350. As Judge Lintner further noted:
The crucial fact is not so much what Portman
did, but what he knew. Portman's knowledge,
as the employer's representative, is
essential to the determination of the
employer's knowledge concerning the
substantial or virtual certainty of future
injury as a result of its decision to
disengage the guard. It was Portman who
ordered that the guard be made operational
during OSHA inspections and tied off at all
other times to facilitate production. When
plaintiff expressed concern about safety on
three separate occasions, Portman's purported
responses “it was okay” and “not a problem”
were at best ambiguous. Portman, perhaps
more then [sic] anyone else, is the one
person who could shed light on what, if any,
appreciation AMI had concerning the risk of
injury associated with its decision. As the
employer's representative, Portman's
appreciation of the danger would be imputed
to the employer. See Lehmann v. Toys 'R' Us,
Inc.,
132 N.J. 587, 619-20,
626 A.2d 445
(1993). Portman's importance cannot be
overstated. Precluding the discovery action
against Portman prevented plaintiff from
learning the information necessary to succeed
against AMI. Neither defendant should have
been dismissed pending completion of
discovery of Portman's appreciation of the
risk involved in tying off the guard.
The evidence with inferences in favor of Laidlow is powerful. The rolling mill is a dangerous machine because it requires an employee to manually feed material into a nip point. Indeed, it has been held that “an employee who manually feeds material into a machine with an unguarded nip point is at great risk of great injury.” Russell v. Interim Personnel, 733 N.E.2d 1186, 1190 (Ohio App. 1999). Apparently recognizing that principle, after its purchase AMI provided a safety guard for the rolling mill. Yet, for 13 years, from 1979 to 1992 when Laidlow was injured, the guard was inactivated by AMI nearly 100% of the time the machine was in use. During that period, Laidlow and a fellow employee had experienced close calls with the nip point of the unguarded mill. Those were potentially serious accidents in which the employees' gloves were ripped off by the machine and their fingers saved only by the cloth in the gloves. Those close calls were reported to AMI to no avail. They were persuasive evidence that AMI knew not only that injury was substantially certain to occur, but also that when it did occur it would be very serious, as Laidlow's injury turned out to be. Within the month prior to his accident, Laidlow asked his supervisor three times to restore the guard because the unguarded machine was dangerous and because new and inexperienced employees would be operating it. Nothing was ever done.
Significantly, the only time the guard was ever activated by AMI was when OSHA inspectors came. In fact, AMI systematically deceived OSHA into believing that the machine was guarded, inferentially at least, because it knew that operating the machine without the guard inevitably would cause injury and that OSHA would not allow such a dangerous condition to exist. Through its long experience with OSHA, AMI knew that if it did not deceive the inspectors it would forfeit “the speed and convenience” that, it has conceded, motivated the removal of the guard in the first place. By its deception, a jury could conclude that AMI evidenced an awareness of the “virtual” certainty of injury from the unguarded mill. Indeed, Laidlow's expert engineer reached that very same conclusion. In addition, AMI effectively precluded OSHA from carrying out its mandate to protect the life and health of AMI's workers.
AMI argues that the absence of prior accidents obviates a possible finding of “substantial certainty” by a jury. We disagree. To be sure, reports of prior accidents like prior “close-calls” are evidence of an employer's knowledge that death or injury are substantially certain to result, but they are not the only such evidence. Likewise, the absence of a prior accident does not mean that the employer did not appreciate that its conduct was substantially certain to cause death or injury.
The appreciation of danger can be obtained in a myriad of ways other than personal knowledge or previous injuries. Simply because people are not injured, maimed or killed every time they encounter a device or procedure is not solely determinative of the question of whether that procedure or device is dangerous and unsafe. If we were to accept the appellee's reasoning, it would be tantamount to giving every employer one free injury for every decision, procedure or device it decided to use, regardless of the knowledge or substantial certainty of the danger that the employer's decision entailed. ... It is not incumbent that a person be burned before one knows not to play with fire.
In short, we disagree with AMI and the Appellate Division that
the absence of a prior accident on the rolling mill ended any
inquiry regarding intentional wrong. That is simply a fact, like
the close-calls, that may be considered in the substantial
certainty analysis.
Turning to the facts in this record, we are satisfied that a
reasonable jury could conclude, in light of all surrounding
circumstances, including the prior close-calls, the seriousness
of any potential injury that could occur, Laidlow's complaints
about the absent guard, and the guilty knowledge of AMI as
revealed by its deliberate and systematic deception of OSHA, that
AMI knew that it was substantially certain that the removal of
the safety guard would result eventually in injury to one of its
employees. Thus, a jury question was presented on that issue.
A finding that the substantial certainty prong was satisfied
does not end our inquiry. Laidlow's allegations, if proved, also
must satisfy the context prong of Millison to preclude AMI from
summary judgment. We have concluded that if Laidlow's
allegations are proved, however, the context prong of Millison
would be met. Indeed, if an employee is injured when an employer
deliberately removes a safety device from a dangerous machine to
enhance profit or production, with substantial certainty that it
will result in death or injury to a worker, and also deliberately
and systematically deceives OSHA into believing that the machine
is guarded, we are convinced that the Legislature would never
consider such actions or injury to constitute simple facts of
industrial life. On the contrary, such conduct violates the
social contract so thoroughly that we are confident that the
Legislature would never expect it to fall within the Worker's
Compensation bar.
Our holding is not to be understood as establishing a per se
rule that an employer's conduct equates with an “intentional
wrong” within the meaning of 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. Rather, our
disposition in such a case will be grounded in the totality of
the facts contained in the record and the satisfaction of the
standards established in Millison and explicated here.
Obviously, the proofs at trial may not track the employee's allegations. Thus, the employer may, even after a jury returns a verdict in the employee's favor regarding substantial certainty, apply to the trial court for reconsideration of the context issue based on the difference between the facts actually established at trial and what plaintiff alleged would be proved. With that possibility in mind, where the evidence is in conflict regarding the allegations relied on by the trial court for its preliminary context evaluation, the court should secure from the jury a resolution of those conflicts by way of a carefully crafted jury verdict form.
CHIEF JUSTICE PORITZ and JUSTICES STEIN, COLEMAN, VERNIERO, LaVECCHIA, and ZAZZALI join in JUSTICE LONG's opinion.
NO. A-89 SEPTEMBER TERM 2000
ON APPEAL FROM Appellate Division, Superior Court
ON CERTIFICATION TO
RUDOLPH LAIDLOW and JEAN
LAIDLOW,
Plaintiffs-Appellants,
v.
HARITON MACHINERY COMPANY,
INC.,
Defendant,
and
RICHARD PORTMAN and ADVANCED
METALLURGY AMI-DDC INC., a
Division of Technitrol,
Defendants-Respondents.
DECIDED February 25, 2000
Chief Justice Poritz PRESIDING
OPINION BY Justice Long
CONCURRING OPINION BY
DISSENTING OPINION BY
Footnote: 1 1 The most recent draft of the Restatement (Third) of Torts
§ 1 (Tentative Draft No. 1, 2001) has “unblended” the definition
of intent and now provides:
An actor's causation of harm is intentional
if the actor brings about that harm either
purposefully or knowingly.
(a) Purpose. An actor purposefully causes
harm by acting with the desire to bring about
that harm.
(b) Knowledge. An actor knowingly causes
harm by engaging in conduct believing that
harm is substantially certain to result.