Opinion
J.A21002/15 No. 2479 EDA 2014
08-21-2015
JUSTIN BADA AND KIMBERLY BADA, H/W Appellants v. COMCAST CORPORATION JUSTIN BADA AND KIMBERLY BADA, H/W Appellants v. COMCAST CC OF WILLOW GROVE AND COMCAST OF SOUTH JERSEY, LLC
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered July 17, 2014
In the Court of Common Pleas of Philadelphia County
Civil Division No(s).: January Term, 2013 No. 2242 March Term, 2013 No. 1031
BEFORE: ALLEN, MUNDY, and FITZGERALD, JJ. MEMORANDUM BY FITZGERALD, J.:
Former Justice specially assigned to the Superior Court.
Appellants, Justin Bada and Kimberly Bada, husband and wife, appeal from the order of the Philadelphia County Court of Common Pleas granting summary judgment in favor of Appellees, Comcast CC of Willow Grove and Comcast of South Jersey, LLC in these consolidated cases. Appellants contend the trial court erred in granting summary judgment based upon the exclusivity rule of the New Jersey Worker' Compensation Act ("Act"). We affirm.
The trial court consolidated these cases. See Order, 5/2/13. Comcast Corporation was dismissed by agreement of the parties. See Stipulation of Dismissal of Comcast Corp., 8/28/13.
We adopt the facts and procedural history as set forth by the trial court in its opinion. See Trial Ct. Op., 1/22/15, at 3-6. On July 17, 2014, the trial court granted summary judgment in favor of Appellees. Appellant Justin Bada's negligence claim against his employer and his wife's loss of consortium claim were barred by the Act. This timely appeal followed. Appellants filed a timely court-ordered Pa.R.A.P. 1925(b) statement of errors complained of on appeal and the trial court filed a responsive opinion.
Following oral argument on Appellees' motion for reconsideration of the trial court's denial of the motion for summary judgment, summary judgment was granted. The trial court opined:
This [c]ourt denied [Appellees'] motion . . . based upon this [c]ourt's analysis and determination of a substantial question of fact existing as to who was, in fact, [Appellant's] employer at the time of this incident.N.T., 7/17/2014, at 11, 12.
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Now, in reviewing this motion for reconsideration and the response thereto, it is clear that [Appellant Bada], did, in fact, admit, for purposes of this motion, that the moving [Appellees] w[ere], in fact, his employer[s] at the time of this accident.
We note that Appellees filed an application to quash the appeal which was denied by this Court. See Order, 3/23/15.
Appellants raise the following issue for our review:
Appellants raised additional issues in their Rule 1925(b) statement which are not addressed in their brief. Therefore, they are abandoned on appeal. See Eiser v. Brown & Williamson Tobacco Corp., 938 A.2d 417, 429 (Pa. 2007) (plurality).
Whether the Lower Court erred when it granted Comcast's Motion for Summary Judgment based on the exclusivity rule of the New Jersey Workers' Compensation Act since, when the evidence is viewed in the light most favorable to . . . Appellants, the present case falls squarely within the "intentional wrong" exception to that rule?Appellants' Brief at 6.
See N.J.Stat.Ann. § 34:15-8.
Appellants argue that the exclusivity provision of the Act is inapplicable in the instant case based upon "an exception to that rule for injuries that result from 'intentional wrongs' on the part of the employer." Id. at 11. This determination is based upon a two part test, viz., a conduct prong and and a context prong. Id. at 15, 16, 19. In order to satisfy the conduct prong, Appellants contend a jury must resolve the issue of whether there was "an objectively reasonable basis for expecting that [the accident] almost certainly would occur." Id. at 17 (citing Van Dunk v. Reckson Assocs. Realty Corp., 45 A.3d 965, 978 (N.J. 2012)). Appellants aver the facts of the case "could certainly lead a jury to conclude that Mr. Bada's supervisor knew it was a 'virtual certainty' that using a ladder that evening could cause someone to be injured." Id. at 19.
Appellants argue "[o]nce the conduct prong is satisfied, the next phase of the inquiry calls for the [c]ourt to determine whether the employer's actions 'constitute a simple fact of industrial life or are outside the purview of the conditions the [New Jersey] Legislature could have intended to immunize under the Workers' Compensation bar." Id. at 19 (citing Laidlow v. Hariton Mach. Co., 790 A.2d 884, 898 (N.J. 2002)). They conclude this prong was satisfied based upon the facts of this case because "there can be no question that Mr. Bada's supervisor and the senior field technician knew that the ladder was going to topple." Id. at 20.
Our review is governed by the following principles:
The standards which govern summary judgment are well settled. When a party seeks summary judgment, a court shall enter judgment whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense that could be established by additional discovery. A motion for summary judgment is based on an evidentiary record that entitles the moving party to a judgment as a matter of law. In considering the merits of a motion for summary judgment, a court views the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Finally, the court may grant summary judgment only when the right to such a judgment is clear and free from doubt. An appellate court may reverse the grantingVarner-Mort v. Kapfhammer , 109 A.3d 244, 246-47 (Pa. Super. 2015) (citation omitted).
of a motion for summary judgment if there has been an error of law or an abuse of discretion. . . .
The Act provides, in pertinent part, as follows:
Election surrender of other remediesN.J. Stat. Ann. § 34:15-8 (emphasis added). The New Jersey Supreme Court opined:
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.
The Act's remedy is exclusive, except for injuries that result from an employer's "intentional wrong"; for those, an injured employee is permitted to maintain a common-law tort action against the employer. . . . As the case law demonstrates, an employer's deliberate intent to injure is not the sine qua non; instead a substantial certainty that injury or death will result must be demonstrated.Van Dunk , 45 A.3d at 966, 972 (some emphases added and some citations omitted).
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Millison [ v. E.I. du Pont de Nemours & Co., 501 A.2d 505 (N.J. 1985)] instructed courts, when assessing claims of intentional wrong, to engage in a two-step analysis. First, a court considers the "conduct prong," examining the employer's conduct in the setting of the particular case. Second, a court analyzes the "context prong," considering whether "the resulting injury or disease, and the circumstances in which it is inflicted on the worker, [may] fairly be viewed as a fact of life of industrial employment," or whether it is "plainly beyond anything the legislature could have contemplated as entitling the employee to recover only under the [ ] Act."
In general, the same facts and circumstances will be relevant to both prongs of Millison . However, 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. The first is whether, when viewed in a light most favorable to the employee, the evidence could lead a jury to conclude that the employer acted with knowledge that it was substantially certain that a worker would suffer injury. If that question is answered affirmatively, the trial court must then determine whether, if the employee's allegations are proved, they constitute a simple fact of industrial life or are outside the purview of the conditions the Legislature could have intended to immunize under the Workers' Compensation bar. Resolving whether the context prong of Millison is met is solely a judicial function. Thus, 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.Laidlow , 790 A.2d at 898.
The facts in Van Dunk are as follows:
On August 10, 2004, at the Giralda Farms construction site, James was excavating a trench to relocate a dewatering sump in a retention pond. Prior to that date, the project had been plagued by thunderstorms and heavy rain that had required work to be redone, without additional compensation to James. Rain was expected again later that day; as a result, [J.D.] Potash and [Glenn] Key sought to complete the sump relocation before the rain arrived. The sump relocation involved the following steps: digging a sloped trench; laying down first a filter fabric and then a layer of stone; placing a pipe on the stone; placing more stone on the sides and top of the pipe; and then wrapping additional filter fabric around the stone. As the trench excavation continued and its slope reached a depth of greater than five feet, Van Dunk and other workers began laying down the filter fabric from locations outside the trench. Eventually, the deepest part of the trench reached a depth of eighteen to twenty feet.Id. at 967-68 (citations and footnotes omitted and emphases added).
OSHA safety regulations mandate that workers cannot enter a trench that is deeper than five feet if protective systems are not in place. A protective system is defined as "a method of protecting employees from cave-ins, from material that could fall or roll from an excavation face or into an excavation, or from the collapse of adjacent structures." James's Safety Program similarly requires use of protective systems to guard against cave-ins. Proper sloping and use of trench boxes are common protective systems, but for various reasons, Key determined that OSHA-compliant sloping could not be utilized at the trench's location, and a trench box was not employed.
Key and his workers experienced difficulty when laying down the filter fabric from their locations outside the trench. Despite their efforts, the fabric would not lay flat. It became tangled and a crease developed. Van Dunk volunteered to go into the trench to straighten the filter fabric, but Key told him not to do so because of the possible risks attributable to the ground conditions. However, as problems persisted with laying the filter fabric, in what Key later described as a moment of "frustration" he told Van Dunk to go in and straighten the fabric. Van Dunk went into the trench, walked to the deeper end, and began adjusting the fabric. He was in the trench for less than five minutes when a loud noise was heard and a trench wall caved in, burying Van Dunk to his chest. He sustained multiple serious injuries. He was rescued by coworkers who immediately responded to help him, some of whom jumped in to dig him out, and by police and emergency personnel.
James Construction Company, Inc. ("James") was Van Dunk's employer. Van Dunk , 45 A.3d at 967.
Potash was James' president. Id.
Key was the project superintendent.
Occupational Safety and Health Administration.
The Van Dunk Court declined to find an intentional wrong and opined:
The existence of an uncontested finding of an OSHA safety violation in the wake of this workplace injury does not establish the virtual certainty that Millison demands. An intentional wrong must amount to a virtual certainty that bodily injury or death will result. A probability, or knowledge that such injury or death "could" result, is insufficient. Thus, the question here is whether in light of the clear violation of the OSHA safety requirements pertaining to trenches deeper than five feet, there was substantial certainty of injury or death. On the facts presented, we cannot reach that conclusion without causing a substantial erosion of the legislative preference for the workers' compensation remedy.Id. at 978 (citation omitted and emphasis added). In Van Dunk , the New Jersey Supreme Court opined: "No doubt, the circumstances in this matter are tragic. Although the proofs plaintiff advances could support a finding of gross negligence, that finding is insufficient to circumvent the statutory bar and maintain an action against plaintiff's employer." Van Dunk , 45 A.3d at 967.
Instantly, the trial court opined:
[Appellant] worked outdoors and that would include working in inclement weather as a regular part of his job. He was not ordered by his supervisor, John Gonzalez, to climb the ladder. Mr. Gonzalez, in fact, sent a more experienced colleague, Chris Aten, to assist [Appellant] at the location. He was injured when it was determined that climbing the ladder under these conditions would not be safe. [Appellant] admitted he never climbed the ladder and had been requested by Mr. Aten "to brace the side of the ladder while he unhooked it and lowered the extension ladder."Trial Ct. Op. at 11 (citations to record omitted and emphasis added). We agree no relief is due.
[Appellant] was never forced to climb the ladder or engage in any activity where serious injury or death was substantially certain. Based upon the facts, it can be reasonably concluded that [Appellant's] injury occurred solely within the course and scope of his employment and within the bounds of industrial life. As a result, his claim falls squarely within the confines and remedies available to him as an incident contemplated by the legislature under the [Act]. In light of this, [Appellees] are entitled judgment in their favor.
We note that Appellant Kimberly Bada's derivative loss of consortium claim is barred due to the applicability of the Act. See Cominsky v. Donovan , 846 A.2d 1256, 1260 (Pa. Super. 2004) (citing Scattaregia v. Shin Shen Wu , 495 A.2d 552 (Pa. Super. 1985) (holding "loss of consortium claim is dependent upon the injured spouse's right to recover")).
Appellant testified via videotape deposition regarding the weather on the date of the incident. "In the morning, it was overcast, and I think it was possibly drizzling, with some wind. But as the day got later, the wind and the rain got severely worse." N.T., 3/11/14, at 114. When asked if he complained to his employer about having to work in inclement weather, he stated "it's the nature of the job and we understand that there's going to be rainy days" and it is also part of the nature of the job that there may be wind. Id. at 119.
He testified that Appellees never disengaged any safety mechanisms on any equipment that he had during his employment. Id. at 165. Based upon the weather and location of the pole he had to work on, Appellant called his supervisor because he "didn't feel safe . . . ." Id. at 173, 176. John Gonzalez, the supervisor, told Appellant that he would call Chris Aten. Id. at 177. Gonzalez said to get back to him after Chris arrived. Id. at 180.
Mr. Aten "was a co-worker of [his] from Comcast, a fellow technician." Id. at 156.
Appellant explained what transpired after Mr. Aten arrived:
He said stand next to him. He told me he was going to put up the ladder and he'd see what happened.Id. at 199, 200-01. His deposition testimony continued:
He put up the ladder. And almost as immediately as the hooks went over the strand, another big wind gust came in and the ladder was buckling in the center, like, where the extension piece is, I guess where the extension piece crosses over the lower part of the extension ladder.
And he said something along the lines of, Oh, no. This—we can't do this. This—ain't safe.
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And then he asked me to brace the side of the ladder while he unhooked it and lowered the extension ladder. And at that point, I was to his left. And I braced my hands against the side of the ladder like such, where I—because it's an extension ladder, I could not close my thumbs on it, as we were taught, because you can get your thumbs caught in there (indicating). So, as a safety practice, I put my hands flat against it just to kind of brace against the incoming wind.
And that was the assistance he asked of me. And I thought, you know, he probably needed that, because at that point, once he unhooked it again, that ladder could blow over. And his truck was facing that way too. Who knows? It could have hit the truck, broke the windshield or something. So, I though, you know, this is something where I need to held him.
At that point, that's when he—almost as soon as he unhooked the ladder, the wind blew. And the next thing I know, I'm being pushed over, the ladder falls on me, and I'm laying on my side, half in a puddle, half on the ground.
[Counsel for Appellees:] Other than the fact that you thought it was too—that the conditions were unsafe to do the job. So, other than that, was there anything about the way that Chris was trying to get the ladder up that you thought was not the proper methodology for getting a ladder up over a strand?Id. at 209, 213, 214, 237, 242-43.
A: No. Other than the conditions, he's—always been pretty good with the ladder. I mean, as I said previously, that's why they called him Ninja.
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Q: From what you could tell, as soon as Mr. Aten determined that it was unsafe, did he try to stop proceeding with the job?
A: Yes.
Q: And then describe for me that exact moment. So he's decided it's unsafe.
Then what happened?
A: That's when he has to lower the ladder.
Q: So, what did he do?
A: That's when he asked me to brace the side of the ladder while he unhooked it from the strand and lowered the extension part.
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Q: And he unhooked it from the strand?
A: Yes.
Q: While you were bracing it?
A: Yes.
Q: And then what happened?
A: That's when it was blown over by the wind and I got hit by it. And I was—you know, the next thing I know, I'm on the ground and the ladder's on the ground and—you know.
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Q: And did you go to a doctor that day?
A: I believe—yeah. I believe I went to a couple of places that day. I believe they sent me to Dr. Glenn's office, who checked me out and then sent me for an x-ray. And I think I—I even probably—I think I took a urinalysis or something at that point, too.
Q: When you said "they sent me," who's "they"?
A: The supervisor who I had told.
Q: And who's Dr. Glenn?
A: That was the—I guess the head practitioner of the doctor's office that I was sent to. I believe the doctor I first saw was Dr. Bozik, if that's how you pronounce it.
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Q: . . . What injuries do you attribute to the incident?
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A: . . . To the best of my knowledge, my anterior cruciate ligament was torn in my left knee. There was damage to my meniscus.
Q: In your left knee?
A: In my left knee as well.
I had pain in my right knee. Through different x-rays and whatnot, there was determined to never be—to not be any—anything significant to require any type of major treatment.
To this day, the pain comes back right—like, here and there, but not—not anything significant.
I had a forearm contusion, which basically that—went away about a week after. It was just kind of, like, a bruise and—then I have two—how did the doctors put it? I think they call it bulging disks in my lower spine. . . .
I'm not sure of the back terminology as much. But there were two—two disks in my lower back that were also bulging and I've had pain. I've had times where I've had numbness that's shot down my right leg.
I currently have pain within and throughout my left knee. I have numbness on the bottom front of my left knee. You know, a radiating back pain, which also kind of goes hand in hand with that numbness that I sometimes feel in my right leg.
Q: Are there any other injuries that you attribute to the incident?
A: As far as I know, no.
The Van Dunk court found that although the circumstances in that case were tragic, they were not sufficient to circumvent the statutory bar of the Act. See Van Dunk , 45 A.3d at 967. Instantly, Appellants have not demonstrated that Appellees' conduct constituted an intentional wrong creating a substantial certainty that injury or death would result. See id.; Laidlow , 790 A.2d at 898. Therefore, we find the facts in the case sub judice were insufficient to satisfy the exception to the exclusivity provision of the Act. See Van Dunk , 45 A.3d at 966, 972. We discern no abuse of discretion by the trial court in granting Appellees' motion for summary judgment. See Kapfhammer , 109 A.3d at 246-47.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/21/2015
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