Nelson Lebron, Appellant,v.SML Veteran Leather, LLC, Respondent.BriefN.Y.Feb 12, 2014Bronx County Clerk’s Index No. 308490/08 New York Supreme Court APPELLATE DIVISION — FIRST DEPARTMENT NELSON LEBRON, Plaintiff-Respondent, against SML VETERAN LEATHER, LLC, Defendant-Appellant. To Be Argued By: Darren Seilback BRIEF FOR PLAINTIFF-RESPONDENT OKUN, ODDO & BABAT, P.C. Attorneys for Plaintiff-Respondent 8 West 38th Street, 10th Floor New York, New York 10018 212-642-0950 firstname.lastname@example.org On the Brief: Darren Seilback Printed on Recycled Paper TABLE OF CONTENTS PAGE 1. TABLE OF CASES ii. 2. COUNTER STATEMENT OF FACTS 1 3. ARGUMENTS POINT I: THE LOWER COURT PROPERLY DENIED DEFENDANT’S MOTION AS THERE EXISTS ISSUES OF FACT AS TO WHETHER THE DEFENDANT ACTED WITH KNOWLEDGE THAT IT WAS SUBSTANTIALLY CERTAIN THAT A WORKER WOULD SUFFER INJURY 9 POINT II: THE INCIDENT WAS NOT A SIMPLE FACT OF INDUSTRIAL LIFE 13 4. CONCLUSION 14 i. TABLE OF CASES INDEX New Jersey State Cases Almanzar v. C&C Metal Products, Inc., 2010 WL 1372301 (D.N.J. 2010) 12-13 Laidlow v. Hariton Machinery Co., 170 N.J. Super. 457 (app. Div. 2003) Passim Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 61 (1985) 7-8 Mull v. Zeta Consumer Products, 176 N.J. 385 (2003) 7-8 Van Dunk v. Reckson Associates Realty Corporation, 415 N.J. Super. 490 (2010) 10, 14 New York State Cases Cutsogeorge v. Hertz Corp., 264 A.D.2d 752 (1999) 6 New Jersey Statutes N.J.S.A. § 34-15-7 7 N.J.S.A. § 34-15-8 7 Federal Law 29 CFR 1910.147(a)(1) 6 29 CFR 1910.147(c)(7)(I) 6 29 CFR 1910.212(a)(3)(I) 6, 12 29 CFR 1910.212(a)(4) 6 Cook v. Cleveland Electric Illuminating Co., 102 Ohio App.3d 417 (1995) 10 ii. 1 COUNTER STATEMENT OF FACTS It is submitted that the defendant blatantly misrepresents several important facts throughout its appeal. Defendant’s claim that the only defect in the subject leather stamping machine was that it was missing a safety screen is simply not true. The machine had at least three egregious violations: (1) the safety switches on each side of the machine were removed; (2) the foot pedal was taped down so it was constantly activated and (3) the safety cage was permanently removed without a shut down mechanism required by law. Each of these violations contributed to the incident in which plaintiff was injured. On October 19, 2007, at approximately 1:00 p.m., the plaintiff, NELSON LEBRON, an employee of the defendant SML was injured while working at the warehouse of the defendant at 100 Central Valley, Hillside, New Jersey. The plaintiff was severely burned and permanently injured while operating a hot press leather stamping machine. (R. 147). The plaintiff was employed as a supervisor for SML Veteran Leather from 2006 until the date of the incident (R. 66). Mr. Lebron was in charge of many facets of the leather business including printing, cutting, and brand splitting of the leather. (R. 70). During his employment at SML, Mr. Lebron utilized a Kensol-Olsenmark Hot Stamping Machine, Model 60-F3, to brand the leather (R. 491-498). At the time of purchase of this machine, it had two safety switches on each side and a foot pedal to operate the machine. These safety mechanisms were intended to protect the employees operating the machine (R. 491-498). The hot stamping machine was used to brand leather. If the machine was unaltered and used properly, an employee would have to push the safety mechanisms 2 on each side of the machine, subsequently push the foot pedal, and then insert the leather which would activate a sensor so that the leather could be branded (R. 96). After activating the three safety mechanisms and the sensor, the top of the machine would come down and brand the leather. The safety mechanisms were essential to the safety of the operator as the top of the machine would reach temperatures up to 900 degrees Fahrenheit. Even if the sensor was activated by a piece of leather, but the safety switches or foot pedal were not pushed, the machine would not come down on an employee’s hand (R. 287). The Vice President of marketing and sales of SML, Andrew Sapienza, worked in the leather business for approximately 45 years. Mr. Sapienza was responsible for the purchase and subsequent maintenance of the machine. Mr. Sapienza started working at a company, Veteran Leather Company, in 1967 and eventually became owner of the company until the company dissolved in 2006. While at Veteran Leather, Mr. Sapienza purchased the leather stamping machine in the 1980s and the machine was utilized until 2006 at Veteran Leather (R. 257). Mr. Sapienza bought the machine without a manual and never performed a risk-analysis of the machine (R. 257-259). In fact, Mr. Sapienza stated that he did not know that the Kensol Machine was any more dangerous than any other machine on the market, despite the fact that it reached 900 degrees Fahrenheit (R. 297). In the late 1980s or early 1990s, Mr. Sapienza determined that he should temporarily attach a safety gate to the machine, but did not attach the mandatory shutdown mechanism to the safety gate (R. 260- 261). Therefore, even if the safety gate was removed, the machine could still be operated, which was in violation of OSHA regulations (R. 491-498). Mr. Sapienza then transferred the business, including 15-30 machines, the 3 business, clients and employees to the defendant SML starting in late 2006, early 2007 (R. 238-245, 249). SML performed the same manufacturing and business procedures as Veteran Leather. Mr. Sapienza continued to oversee the leather branding processes at SML. The defendant SML failed to properly and safely utilize this machine from 2006 until the plaintiff’s incident. SML failed to comply with OSHA regulations in maintaining this machine and endangered its employees by allowing the machine to be used without the required safety features. The sole purpose of these alterations to the machine was to increase productivity. SML also never obtained a manual or performed a risk-analysis of the machine. The safety gate was never re-attached to the machine at SML with the proper shutdown mechanism, the defendant continued the practice of taping down the pedal and never replaced the safety switches on each side of the machine. When the machine in question was moved to SML in 2006 and throughout its use up to the incident date, it was in constant violation of many OSHA standards. There were three egregious violations: (1) the safety switches on each side of the machine were removed; (2) the foot pedal was taped down so that it was constantly activated and (3) the safety cage lacked a shutdown mechanism required by law. The circumvention of these safety mechanisms were intended solely to increase profit and productivity (R. 491-498). It is undisputed that these three violations of Federal & OSHA regulations were committed by the defendant. The defendant’s employees, including the executive team, readily admitted that the machine and the company’s procedures were in violation of OSHA and this was done to increase productivity. The safety switches on either side of the machine were missing, so that an employee 4 would not have to simultaneously push the buttons to activate the machine. These switches could have been easily replaced by SML (R. 491-498). It is undisputed that the foot pedal was taped down to avoid an additional step in the leather stamping procedure. Although the plaintiff was the one who put the tape on the pedal, it was done at the direction of Andy Sapienza , his supervisor, and Victor Massey, the head engineer at SML (R. 134). By taping the foot pedal, the job would take less time (R. 135). The practice of taping down the pedal on said machine was exercised by SML (and the predecessor company Veteran Leather) for over a 13 year period (R. 135). SML cannot delegate its duty to comply with OSHA and Federal guidelines to an employee, so defendant’s attempt to blame the plaintiff for its violations is not compelling. Furthermore, comparative negligence is an issue of fact for a jury to decide. Jacqueline Kinsler, a Key Account Manager at SML, testified that the machine should have been set so that an employee would insert the leather, hit some sort of safety trigger, and then press on the foot pedal. She further testified that the foot pedal had been taped to bypass this safety mechanism, for the sole purpose of increasing productivity (R. 404-405). The metal gate was added to the Kensol Machine in the late 1980s or early 1990s (R. 261). The engineer, Victor Masse, made the cage out of metal. (R. 261). The cage was not screwed into the machine, was easily removable and did not have the required shut down mechanism (R. 262). The cage was often removed from the Kensol machine, but was still operable because the defendant failed to attach the gate to the required shutdown mechanism (R. 270). When the machine was moved from Veteran Leather to New Jersey, the cage was not attached and may have been thrown 5 out (R. 174-175). The plaintiff made daily complaints to Andy Sapienza and Victor Massey about the missing safety cage, however the cage was never placed back on the machine (R. 141). The defendant claims in its appeal that disposing of the cage was inadvertent, an accident that it bears no responsibility for. However, the cage was thrown out in late 2006, and the incident did not occur until nearly a year later. The defendant also claims that the elimination of the cage was necessary for the piece of leather to be removed from the machine. However, the defendant omits the fact that federal guidelines required that the absence of the metal gate should have rendered the machine inoperable. The defendant’s modification of the machine was in violation of OSHA regulations. On the date of the incident, Mr. Lebron was working on the Kensol machine, stamping a piece of leather when the leather got stuck in the machine. The plaintiff attempted to grab the piece of leather and the top of the machine abruptly came down, severely burning the plaintiff’s hand. This would have been avoided if all the safety mechanisms were in place (R. 189, 491-498). The defendant further claims that the plaintiff should not have used his fingers to remove the leather, but should have used another device such as a long screwdriver to remove the leather that was stuck (R. 270). Defendant’s contention simply ignores the fact the machine would never have come down on Mr. Lebron’s hand if the foot pedal was not taped down or the safety devices were in place. Moreover, OSHA required the use of specific hand tools to remove pieces of leather, not a long screwdriver. The defendant did not have these specific hand tools available to its employees on its premises (R. 493). 6 It is apparent that the defendant SML was in violation of OSHA and federal guidelines involving the Kensol machine and that those violations caused plaintiff’s injury. Dr. Carl Abraham, P.E., a licensed professional engineer, specializing in safety engineering and design, with over forty years of expertise with all types of guards and protection of stamping and press machines, examined the Kensol machine, in the presence of a representative of the defendant, on July 21, 2010. Dr. Abraham’s expert report is admissible as the defendant had knowledge of the expert on the date the machine was examined. See Cutsogeorge v. Hertz Corp., 264 A.D.2d 752 (1999). After examining the machine, Dr. Abraham determined that the defendant’s operation, maintenance, and control of the machine was in violation of numerous OSHA and federal guidelines, including the following, a. OSHA requires that the hot stamping machine have interlock switches and sensors which are intended to shut down the machine upon opening the guard. b. Pursuant to 29 CFR 1910.147(c)(7)(i) the subject machine required a lockout/tagout control if there was a problem with a piece of leather sticking in the machine or any type of problem. c. 29 CFR 1910.147(a)(1) required one or more methods of machine guarding to be present on the machine. d. Pursuant to 29 CFR 1910.212(a)(3)(i), there was a non-delegable duty to guard the point of operation of the machine whenever an employee was exposed to a serious risk of foreseeable harm. e. Pursuant to 29 CFR 1910.212(a)(4), an enclosure needed to be used that is inter-locked with the drive mechanism and set so the press would not operate unless the guard enclosure is in place. f. OSHA requires all injuries that result in lost time from work or require more than simple first aid need to be reported. The defendant failed to report injuries on at least two occasions, including the plaintiff’s injury on October 19, 2007 (R. 291-292). 7 g. OSHA inspectors were deceived when inspecting the defendant’s business. Machines were turned off or put away when inspectors came to the site (R. 142-144). h. OSHA also requires safety meetings to be normally convened to discuss worker safety information and training rules. The defendant never organized any meetings. (R. 491-498) In addition to these violations, Dr. Abraham concluded with a reasonable degree of scientific certainty that SML had actual and constructive notice of the hazardous and dangerous conditions that Mr. Lebron worked under up until the time of his injury. Dr. Abraham further found that SML sought to increase profit and productivity at the expense of the safety of Mr. Lebron and that SML was substantially certain that Mr. Lebron would be exposed to a foreseeable injury. Dr. Abraham concluded that SML’s acts were intentional and willful and would be subject to criminal prosecution if this incident had been reported to OSHA or the district attorney’s office. UNCONTESTED LAW It is undisputed that the New Jersey Workers’ Compensation Act, N.J.S.A. §§ 34-15-7 & 34-15-8 is the controlling law in this case. The plaintiff was employed in New Jersey and received Workers’ Compensation Benefits under the New Jersey regulations. The New Jersey Workers’ Compensation Act, may operate as a bar for employees to sue their employers; however, an exception exists in the case of an “intentional wrong” by the employer to prevent an employer from being protected by its own malfeasance. Two leading cases in New Jersey, Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 61 (1985), and Laidlow v. Hariton Machinery Co., 170 N.J. 8 602 (2002) set forth the legal standard to determine an intentional wrong by an employer. The Laidlow and Millison Courts held that two separate inquires should be made to determine an intentional wrong: “(1) 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, and (2) whether, if the employee’s allegations are proved, they constitute a simple fact of industrial life or are outside of the purview of the conditions the Legislature could have intended to immunize under the Workers Compensation Bar.” See Laidlow, 170 N.J. at 604. The Laidlow Court also held that when determining a summary judgment motion on the Worker Compensation Bar under New Jersey law, Courts must take into consideration the totality of the circumstances. There is no one determining factor, but Courts consider many aspects to determine if the defendant committed an intentional wrong. Id. 9 ARGUMENT POINT I: A. The Supreme Court Properly Denied the Defendant’s Motion as There Exist Issues of Fact as to Whether the Defendant Acted With Knowledge That It Was Substantially Certain That a Worker Would Suffer Injury It is clear from the facts and testimony of the parties that SML acted with knowledge that it was substantially certain that plaintiff would suffer injury while operating the machine as modified. Thus, the trial court properly found that there are issues of fact regarding whether SML was in violation of this first inquiry as set forth in Laidlow (R. 4). In Laidlow, a case factually similar to the instant case, the plaintiff suffered a severe injury when his hand became caught in a rolling mill he was operating at his place of employment. The rolling mill actually had a safety device on the machine, but was never engaged. Mr. Laidlow and a co-worker both had prior occasions where their gloved hands almost got caught in the machine. Mr. Laidlow had utilized the machine without the safety device for 12 to 13 years. The plaintiff made numerous complaints about operating the mill without the safety device. On the date of the incident, Mr. Laidlow’s glove got stuck in the machine causing a crush and degloving injury that required partial amputations of the fingers on his hand. The New Jersey Supreme Court reversed the granting of summary judgment by the Appellate Court and found that a jury could reasonably find the employer knew it was substantially certain that the failure to activate the safety device would result in injury. The Court determined that plaintiff’s supervisors were aware the machine was not in compliance with specific safety standards and there were prior incidents 10 involving that same machine. The Court further stated, “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 Court reasoned that: “[t]he appreciation of danger can be obtained in a myriad of ways other than personal knowledge of 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 encumbent that a person be burned before one knows not to play with fire.” [quoting Cook v. Cleveland Electric Illuminating Co., 102 Ohio App.3d 417 (1995)] The Court also held that, in cases involving the removal of safety devices, the Courts must look at the totality of the circumstances. Id. See also Van Dunk v. Reckson Associates Realty Corporation, 415 N.J. Super. 490 (2010) (the “substantially certain” test was met when plaintiff’s safety was disregarded to increase profit and productivity). In Mull v. Zeta Consumer Products, 176 N.J. 385 (2003), the plaintiff was employed as a line operator at a plastic-bag manufacturing facility. The plaintiff used a machine known as a “winder”, in which ropes would often jam in the machine. The defendant-employer altered the machine, including removing the safety interlock switches. The plaintiff made prior complaints to his bosses, but nothing was done. After the incident, OSHA found several violations with the machine in question. The Court denied summary judgment and found that the by removing the safety devices and ignoring the plaintiff’s complaints, the defendant “knew that it was substantially certain that the removal of the safety guard would result eventually in injury to one of its employees”. Id. at 391. 11 The facts of the instant case are analogous to Laidlow and Mull, in which summary judgment was denied. In this case, as in Laidlow and Mull, the plaintiff, NELSON LEBRON, was operating a machine on which the defendant SML removed the safety switches on each side, altered the foot pedal and failed to attach the required safety cage and shutdown mechanism. As in Laidlow and Mull, the plaintiff made complaints to his bosses, but his concerns were never addressed. Moreover, the removal of the safety devices and the taping down of the foot pedal created a foreseeable safety risk to the plaintiff’s safety to increase profit and productivity. Other employees were injured on the machine prior to plaintiff’s incident, despite the fact that the defendant argues in its brief, to the contrary (R. 291-292). It should be further noted that OSHA was never notified after this incident or of any prior incidents involving other employees with the leather stamping machine; thus, an issue of fact exists as to how many prior incidents were involved. Even absent any prior incidents, the denial of summary judgment should be upheld as the Laidlow Court stated “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”. Moreover, the executive team of SML knew that the foot pedal was taped down to increase productivity, the metal cage was disposed of and did not have the proper shutdown mechanism, and the safety devices had been removed. Under the totality of these circumstances, it certainly appears that the defendant “knew that it was substantially certain that the removal of the safety guard would result eventually in injury to one of its employees”. According, there is no basis to disturb the decision of the lower court. The defendant SML argues that the plaintiff cannot prove that it was 12 substantially certain that a worker would sustain an injury on this machine. SML further claims that the plaintiff was the one who removed the safety cage, thus making him partially responsible, or in the alternative, the steel cage was inadvertently thrown out. These arguments are not only ludicrous, but are irrelevant to the issue of summary judgment. The plaintiff was specifically told by his boss, Andrew Sapienza, and the head engineer, Victor Masse, to remove the cage despite Mr. Lebron’s complaints (R. 134). SML never replaced the steel cage and bypassed the automatic shutdown mechanism as was required by OSHA and federal guidelines. In total disregard for the safety of its employees, the head engineer and vice president of sales of SML despite their knowledge that the cage was not present on the machine and the shut down mechanism was bypassed, SML continued to allow their workers to operate this machine. Moreover, pursuant to 29 CFR 1910.212(a)(4), an enclosure needed to be used that is interlocked with the drive mechanism and set so the press would not operate unless the guard enclosure is in place. SML’s failure to adhere to this federal law contributed to plaintiff’s incident. On this basis alone, the denial of summary judgment was appropriate. SML also seeks to the blame Veteran Leather, the prior owner of the machine on the ground that it allegedly modified the safety mechanisms on the sides of the machine. However, under New Jersey Law, “successor corporations are responsible for damages caused by defects in products manufactured and distributed by predecessors. But to be held liable as a successor, a corporation must acquire the business assets and continue to manufacture essentially the same line of products as its predecessor.” See Almanzar v. C&C Metal Products, Inc., 2010 WL 1372301 (D.N.J. 2010). 13 In this case, Veteran Leather transferred ownership of 15-30 machines to SML, and SML subsequently performed the same exact leather business with many of the same clients as Veteran Leather. Mr. Sapienza was the plaintiff’s supervisor at Veteran Leather and at SML. It is preposterous that SML seeks to avoid liability when the businesses performed the identical manufacturing of leather with the same supervisor. Pursuant to Almanzar, supra, SML is liable as a successor entity. Regardless of SML’s relationship with Veteran Leather, it must be held responsible for the use of a dangerous machine in violation of federal statutes and OSHA. SML took possession of the machine in late 2006. Mr. Lebron was injured on the machine on October 19, 2007, nearly a year later. The practice of taping of the foot pedal continued throughout the use of the machine at SML and the steel cage was never replaced and the shutdown mechanism was bypassed. If these safety mechanisms were in place in compliance with 29 CFR 1910.212(a)(4), this accident would never have occurred. Dr. Abraham’s report as well as the testimony of the parties makes it clear that SML allowed the machine to be used in an unsafe, defective condition in order to increase profit and productivity, with the knowledge that its recklessness and negligence would result in injury to a worker. Considering the totality of the circumstances, when viewed in a light most favorable to the employee, the evidence could lead a jury to conclude that SML acted with knowledge that it was substantially certain that Mr. Lebron would suffer an injury. For this reason, defendant’s motion for summary judgment was properly denied. B. The Incident Was Not a Simple Fact of Industrial Life Plaintiff’s claim also meets the second requirement to bring an action against his employer SML and defendant’s contention the plaintiff’s injury was “a simple fact 14 of industrial life” is not compelling. In fact, this argument was rejected in Mull, where the Court reasoned that the Legislature would not consider the removal of the safety devices, coupled with the employer’s knowledge of the machine’s dangerous condition due to prior incidents and complaints, “to constitute simple facts of industrial life”. See Mull at 393. In Van Dunk, the plaintiff was injured at a construction site that failed to have proper and safe trenches. The defendant in Van Dunk argued that construction sites are inherently dangerous and by nature any incidents that occur are simple facts of industrial life. The Court held that although construction sites are dangerous places to work, it “does not excuse the failure to use safety devices to alleviate the dangers and risks which were clearly known in this case.” See Van Dunk, at 504-505. The Court concluded that the Legislature would not have considered an employer who knowingly allows an unsafe condition to continuously exist to be a simple fact of industrial life. In this case, the Legislature could not have intended to shield SML from liability for knowingly placing its employees at risk by removing safety devices and ignoring complaints made by its employees. The machine in question was recklessly altered and it would be absurd to suggest that an injury resulting from these alterations should be deemed a simple fact of industrial life. This incident would never have occurred if SML had not attempted to increase productivity by altering the stamping machine making it more dangerous for its employees. Conclusion The lower court correctly applied totality of the circumstances standard as set forth in Laidlow in denying defendant’s motion for summary judgment. The 15 defendant SML knowingly and negligently allowed the plaintiff to work and utilize a machine without the designed safety switches on each side of the machine. It also implemented the practice of taping down the foot pedal to bypass another safety feature of the machine and failed to utilize a shutdown mechanism if the safety cage was removed. If the machine had been up to the federal guidelines, and the cage was removed, the machine would have been inoperable and plaintiff’s incident would have been avoided. Moreover, the machine was in violation of numerous OSHA codes and federal guidelines. In light of these egregious violations, the lower court properly found issues of fact that preclude summary judgment. Accordingly, the underlying decision should be affirmed. Dated: August 28, 2012 OKUN, ODDO & BABAT, PC Attorneys for Respondent ___________________________ By: Darren Seilback, Esq. 16 PRINTING SPECIFICATIONS STATEMENT This brief was prepared with Word Perfect, using Times New Roman 14. According to the aforementioned processing system, the entire brief, including portions that may be excluded from the word county pursuant to 22 N.Y.C.R.R. §600.10(d)(1)(i), contains 4,239 words. Dated: August 28, 2012 OKUN, ODDO & BABAT, PC Attorneys for Respondent ___________________________ By: Darren Seilback, Esq.