Van Dunk v. Reckson Assoc.s Realty Corp..
| Decision Date | 30 August 2010 |
| Citation | 2 A.3d 456,415 N.J.Super. 490 |
| Parties | Kenneth VAN DUNK, Sr. and Deborah Van Dunk, Plaintiffs-Appellants, v. RECKSON ASSOCIATES REALTY CORPORATION; Reckson Construction and Development, LLC; Paulus, Sokolowski & Fleming, Inc.; and Joseph Fleming, P.E., Defendants, and James Construction Company, Inc., Defendant-Respondent. |
| Court | New Jersey Superior Court |
OPINION TEXT STARTS HERE
Glenn M. Gerlanc, Hackensack, argued the cause for appellants (Parisi & Gerlanc, P.A., attorneys; Mr. Gerlanc, of counsel and on the brief; Steven M. Davis, on the brief).
George J. Kenny, Roseland, argued the cause for respondent (Connell, Foley LLP, attorneys; Mr. Kenny, of counsel and on the brief).
Before Judges STERN, GRAVES and NEWMAN.
The opinion of the court was delivered by
STERN, P.J.A.D.
Plaintiffs, Kenneth Van Dunk and his wife Deborah suing per quod, appeal from an order of the Law Division entered on February 20, 2009, which granted summary judgment to defendant James Construction Company (“James”) and dismissed their complaint. Plaintiff 1 sustained serious injuries as a result of a trench collapse at his worksite. Plaintiffs claim that the workers' compensation bar does not apply to preclude their suit because the federal Occupational Safety and Health Administration (“OSHA”) found that the accident was the result of a “willful violation” of its regulations, and therefore constituted an “intentional wrong” for State law purposes, and because James' superintendent sent plaintiff into the eighteen to twenty foot trench knowing the dangers he faced. Plaintiffs argue that “the court erred in holding that an intentional wrong under N.J.S.A. 34:15-8 had not occurred.” We reverse and remand for further proceedings.
Plaintiff sustained multiple injuries on August 10, 2004, as the result of a trench collapse on a construction project at Giralda Farms (the “project”) in Chatham and Madison. In their complaint, plaintiffs identified defendants Reckson Associates and Reckson Construction as “related business organizations” that developed and managed the project. The complaint also alleged that Reckson Construction had contracted with James, an excavation contractor, to construct a retention pond and other related structures.
For purposes of this appeal, we must accept the facts in a manner giving all legitimate inferences to plaintiffs on James's motion for summary judgment. Estate of Hanges v. Metropolitan Prop. & Cas. Ins. Co., 202 N.J. 369, 388, 997 A.2d 954 (2010); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540, 666 A.2d 146 (1995).
Plaintiff was employed as a laborer by James which had to complete its “work for the retention pond and storm water upgrades before other work [on the project] could go forward.” Therefore, its contract with Reckson had a “substantial completion” date of October 15, 2004. The contract also provided that James would be responsible “for planning the work to meet the schedule required by Reckson.” James was also responsible for ensuring that the work was executed safely.
Key had received formal OSHA safety training through the Utility and Transportation Contractors Association (“UTCA”) and been employed by James for thirty-two years as a construction superintendent. He had been “fully trained in the requirements of OSHA with respect to excavation work” and has undergone forty hours of OSHA training “since the accident.”
From the outset of the project, James had experienced difficulties because of “record rainfalls” and “torrential rain” which impeded the progress of the project.
On August 10, 2004, the day of the accident, a dewatering sump 2 for the retention pond under construction was being relocated. The assignment involved “mov[ing] the existing dewatering sump that was in the bottom of the pond to a location just outside of the top slope of the pond.” According to J.D. Potash (“Potash”), James' president, the sump had to be relocated that day before it rained because the rest of the project “could not advance” if the sump was not relocated.
Initially, Key attempted the cover the trench, which was about eighteen to twenty feet deep, by having his men “stretch out [the fabric] and walk it over the trench.” However, the crew experienced some difficulty while attempting to do this. According to Key, the fabric
At this point plaintiff “volunteered” to go into the trench and “fix” the fabric. However, Key “stopped him” and told him not to enter the trench. According to Key, he was concerned about plaintiff's safety “[i]n case of failure.” Key acknowledged that “[c]onsidering the depth of the excavation, the soil type and the conditions and the lack of room to cut the slopes back more, ... [he] didn't want personnel to enter the excavation to install the filter fabric” because he was worried about the trench “failing.”
After denying plaintiff's offer to enter the trench, the crew, consisting of six men, continued to “drape the filter cloth” over the trench. Key indicated that he saw “some cracking in the bank” of the trench as they tried to lay the cloth. However, they were unsuccessful in laying it properly. Key maintains that in his “frustration” to get the fabric to lay correctly, he ultimately “directed” plaintiff “to enter the excavation to correct the problem with the cloth.” That direction was in violation of OSHA's non-discretionary requirements because the trench had no protective system to make it more stable. 3
According to Key, there was a “trench box” which could have been used to make the trench more stable but he did not use it because the “[b]ucket and backhoe” were wider than the box and “wouldn't fit inside” the trench. Additionally, Key maintains that he did not use “sloping,” which would have also made the trench more stable, because it was “a confined area” and “the space” for the trench would not allow it. In less than five minutes after plaintiff entered the trench, it caved in and buried plaintiff to his chest. He was transported to the Morristown Memorial Hospital and treated for multiple injuries.
Thereafter, work on the project was suspended temporarily pending an OSHA investigation. After its investigation, OSHA issued James a citation for a “willful” violation of its regulations based on the fact that it had failed “to protect [its employees] from cave-ins by an adequate protective system,” the excavation was not properly “sloped” and because plaintiff “went into an unprotected trench, approximately [twenty] feet in depth....” It was fined in the amount of $49,000.
In Key's written report following the accident, he stated that “[c]onsidering the depth of the excavation, the soil type and conditions and the lack of room to cut the slopes back more[,] ... [he] didn't want personnel to enter the excavation to install the filter fabric....”
Plaintiffs argue that the trial court erred in holding that an “intentional wrong” had not occurred for purposes of N.J.S.A. 34:15-8. According to plaintiffs, James does not have immunity under the workers' compensation statute because the facts, when viewed in the totality of the circumstances, create a jury question on that issue. On the other hand, James responds that Key's actions do not amount to an “intentional wrong” because they do not meet the threshold established by caselaw.
The Workers' Compensation system was characterized by the Supreme Court in Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 161, 174, 501 A.2d 505 (1985) () as “a historic trade-off whereby employees relinquished their right to pursue common-law remedies in exchange for automatic entitlement to certain, but reduced, benefits whenever they suffered injuries by accidents” as a result of and through the “course of employment.” Thus, “employees would receive assurance of relatively swift and certain compensation payments, but would relinquish their rights to pursue a potentially larger recovery in a common-law action.” Ibid. However, as the Court subsequently noted in Laidlow v. Hariton Mach. Co., Inc., 170 N.J. 602, 605, 790 A.2d 884 (2002), Millison's “characterization” of the Worker's Compensation system is “only broadly accurate” because not every accident is immune from a common law suit. This is because there are “certain types of conduct by the employer and the employee” which the Legislature has determined “will render the Workers' Compensation bargain a nullity.” Id. at 605-06, 790 A.2d 884. 4 See N.J.S.A. 34:15-7; Akef v. BASF Corp., 140 N.J. 408, 412-13, 658 A.2d 1252 (1995). Moreover, N.J.S.A. 34:15-8 limits an employer's immunity to common law suits by excepting ...
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...compensable under the Workers' Compensation Act and not by way of common-law suit." Most recently in Van Dunk v. Reckson Assoc., 415 N.J. Super. 490 (N.J. App. Div. 2010), the New Jersey Appellate Division held that an employee could sue his employer for damages arising out of his injuries ......