Two employees, Oscar Portillo and Selvin Zelayal, were killed when a trench collapsed on top of them while installing a drainage system. Their respective estates sued the decedents’ employer, Defendant Bednar Landscaping Services, Inc., and co-employees Keith Bednar, Peter Liberatore, and Christopher Liberatore for wrongful death. The issue in Estate of Oscar Portillo v. Bednar Landscaping Services, 2021 N.J. Super. Unpub. LEXIS 1407 (App. Div. July 8, 2021), was whether the plaintiffs had demonstrated an intentional wrong, which was required to vault the statutory exclusive remedy defense to a third party action against the decedents’ employer under the New Jersey’s Workers’ Compensation Act.
The defendants had been hired to install a French drain along the exterior perimeter of a private residence. Defendant Keith Bednar designed the project. He learned how to perform drainage work by observing others and through his years of hands-on experience.
Decedent Zelayal was the foreman on the jobsite and he supervised the other employees. He had worked on three or four previous drainage projects which required the excavation of a trench that was deeper than 5 feet. On this job, however, Bednar instructed Zalayal to dig a 9 foot deep, 300 foot long trench, approximately 2-3 feet in width. According to Bednar, they had excavated trenches deeper than 5 feet eight times, but admitted that it was not something they did every day. They never utilized a trench box, wood shoring, or any other method to secure the sides of the trenches on any of the projects or on this job.
It was Bednar’s testimony that he had gone into unprotected trenches that were deeper than his height ten times in his life. It never occurred to him that the trench could collapse or cause injury to him or others working in the trench. He also testified that he never thought about using a trench box. Bednar testified that neither he nor any officer or employee of the company had taken an OSHA safety course before the accident.
The accident occurred during the second week of work on the job. Zelayal opened the excavating machine to dig the trench. When the desired depth was reached, he and other employees would go into the trench with hand tools and lay down pipe and gravel. Because there had been some rain, pumps were used to evacuate groundwater from the trench while the workers installed the pipe.
The pipe was installed in sections. Once the 12 foot drainage pipe was set in place, the open trench was backfilled and an adjoining section would be dug.
Defendant Bednar went to the jobsite only when Zelayal asked him to come. He was onsite three days before the day of the accident and observed his employees in the 9 foot deep trench. Defendant Libeatore went to the jobsite about five times just to deliver gravel.
On October 1, 2014, Decedent Portillo and a co-worker were working in the trench when it collapsed on Portillo. After Zelayal climbed into the trench to assist Portillo, the trench collapsed a second time and Zelayal was buried in the falling soil. Both Portillo and Zelaya were pronounced dead at the scene.
Following an investigation in the accident, OSHA identified multiple violations of safety standards. Most pertinent, OSHA issued a willful violations citation because “workers installing a French drain system in a trench or exposed to crushing injuries in the [nine] to [thirteen] foot deep trench which was not adequately sloped or protected by shields or shoring.” There was a federal regulation which required “an employer to protect its working from a trench collapse by using sloping, shoring, or trench boxes in a trench deeper than five feet.”
The County Prosecutor’s Office also conducted an investigation and the corporate principals were diverted to pre-trial intervention. Bednar Landscape waived indictment and pled guilty to one count of fourth-degree causing or risking widespread injury or damage. Bednar Landscape requested a civil reservation under the court rules, which was granted. Under the court rules, a civil reservation of a guilty plea can be permitted which would prevent an admission of guilt being used in a later civil proceeding.
After discovery concluded in this civil suit, Bednar Landscape moved for summary judgment, arguing that N.J.S.A. 34:15-8 barred plaintiffs’ claims because plaintiffs were collecting workers’ compensation benefits and defendants had not committed an “intentional wrong.” The trial court granted the motion for summary judgment finding that “a jury simply could not conclude that defendants were substantially certain that their working conditions would cause great bodily harm or injury to one of their employees, which is a prerequisite to avoiding the exclusivity bar under the WCA.” Further, the judge determined that plaintiffs had presented a very compelling case for recklessness or gross negligence but they cannot demonstrate an intentional wrong or that defendants were substantially certain of the harm that would result from allowing decedents to enter the trench without safeguards. Judge rejected plaintiffs’ argument that the corporate guilty plea sufficed to meet the substantially certain test.
This appeal ensued and the plaintiffs argued that the trial court made a mistake in granting summary judgment. The plaintiffs argued that the record was “rife” with material and substantial disputes of fact, issues which should have been reserved for consideration by a jury. Further, plaintiffs contended that they did satisfy the intentional wrong standard, required to exempt their claims from the WCA bar and permit them to pursue common law tort claims.
Under New Jersey law, the Workers’ Compensation Act “is a tradeoff where employees relinquish their right to pursue common-law remedies in exchange for automatic entitlement to certain, but reduced, benefits when they suffer injuries by accident arising out of and in the course of employment.” New Jersey law does permit the employee to pursue a civil claim against his or her employer if they can overcome the statutory bar by satisfying the exception for an intentional wrong. Under the statute, N.J.S.A. 34:15-8 provides:
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 Supreme Court established the substantial certainty test in the case of Millison v. E.I. DuPont de Nemours & Co., 101 N.J. 161 (1985). In Millison, the Supreme Court created the current “intentional wrong” framework and implemented a “substantial certainty” test which required an analysis of a “conduct” and a “context” prong. Under this test, the Court “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 plainly beyond anything the legislature could have contemplated as entitling the recovery only under the WCA.”
The Appellate Division reviewed prior New Jersey case law on the intentional act exception. The Appellate Division found what distinguished those cases from the present case “is that those cases all involved the employer’s affirmative action to remove a safety device from a machine, prior OSHA citations, deliberate deceit regarding the condition of the workplace, machine, or in the case of Millison, the employee’s medical condition, knowledge of prior injury or accidents, and previous complaints from employees.”
Here, the plaintiffs must first establish that the defendants knew that their actions were substantially certain to result in injury or death to decedents. The Appellate Division pointed out that the defendants had excavated 5-8 trenches deeper than 5 feet throughout the course of the company’s 20 year history. Their business rarely engaged in the excavation of trenches.
Further, the defendants testified that they were unaware of OSHA’s safety regulations concerning trenches. OSHA had not inspected their previous trench sites, nor had OSHA ever issued any citations to defendants for any violations of its safety regulations. Thus, the Appellate Division found that the plaintiffs could not “demonstrate defendants had knowledge regarding the unsafe trenching practice and a substantial certainty of the trench’s collapse and foreseeable injury or death to its workers.”
The Court noted that to the contrary, defendants had previously undertaken projects where a deep trench was excavated without the required shoring or support and completed those projects without safety issues or incidents.” Further, defendant Bednar testified that he had gone into deep on protected trenches multiple times in the past and never considered whether the trench could collapse. Hence, the Appellate Division found that the record did not support plaintiffs’ claim that defendants knew their actions were substantially certain to cause injury or death.
Further, the Appellate Division found that the corporate guilty plea did not demonstrate that the defendants knew their actions were substantially certain to cause injury or death to an employee. The statute to which the corporation pled guilty involved a person knowingly or recklessly failing to take reasonable measures to prevent or mitigate widespread injury or damage. The Court noted that the criminal court did allow the defendant to take a civil reservation to prevent the guilty plea from being used against them in a subsequent civil case. The Court stated that the “purpose of the rule is to avoid an unnecessary criminal trial of a defendant who fears that a civil claimant will later use his plea of guilty as a devastating admission of civil liability.” The Court examined the basis of the plea and found that there were no inconsistencies between the defendants’ testimony at the plea hearing and the plaintiffs’ testimony in this case. Thus, the Appellate Division upheld the civil reservation which barred the use of the criminal plea as a basis to impeach the testimony of the defendants in this case.
The Appellate Division agreed with the trial court judge that the plaintiffs could not satisfy the conduct prong which required a finding of substantial certainty of injury or death. The Court also found that the context prong was similarly not met. It pointed out that Millison and its progeny had “set a high threshold for the context analysis.” While this case was tragic, it was not a situation in which the employer was aware of OSHA’s safety requirements, had been reprimanded by OSHA or in the past, deliberately deceived OSHA into believing that they had resolved safety issues and ignored prior injuries and complaints from employees. Thus, the Appellate Division found that the plaintiffs’ claim also did not meet the context prong.
Accordingly, the Appellate Division found that there were no material disputed issues of fact to preclude the entry of summary judgment and that the trial judge correctly applied the facts to the applicable law. Hence, the trial court judge’s decision to dismiss the complaint as to the defendants was affirmed.