MEDWIN SOTO VS. ICO POLYMERS NORTH AMERICA(L-0467-10, HUNTERDON COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3858-14T4
MEDWIN SOTO,
Plaintiff-Appellant,
v.
ICO POLYMERS NORTH AMERICA,
Defendant-Respondent,
and
J. PETRUCCI CO., INC., IRON HILL
CONSTRUCTION, INC., COMROE ADVANCED
POWER, INC., ALL-STATE FIRE PROTECTION,
INC. and OVERHEAD DOOR CO. OF ALLENTOWN,
Defendants.
____________________________
Argued November 30, 2016 – Decided October 11, 2017
Before Judges Fuentes, Simonelli and Gooden
Brown.
On appeal from the Superior Court of New
Jersey, Law Division, Hunterdon County, Docket
No. L-0467-10.
Robert G. Daroci argued the cause for
appellant.
Amanda J. Sawyer argued the cause for
respondent (Methfessel & Werbel, attorneys;
Edward L. Thornton, of counsel and on the
brief; Ms. Sawyer, on the brief).
The opinion of the court was delivered by
FUENTES, P.J.A.D.
In most cases, employees who are injured in a work-related
accident may only seek compensation for their injuries under the
Worker's Compensation Act (the Act), N.J.S.A. 34:15-1 to -128.5.
The Act allows an employee to bring a traditional common law tort
cause of action against the employer only in cases in which the
employee's injuries result from the employer's "intentional
wrong." N.J.S.A. 34:15-8; see also Laidlow v. Hariton Mach. Co.,
170 N.J. 602, 617 (2002).
Plaintiff Medwin Soto was severely injured in a work-related
accident. He filed this civil action in the Law Division against
his former employer, defendant ICO Polymers North America (ICO),
to recover compensatory and punitive damages.1 The trial court
granted defendant's summary judgment motion and dismissed
plaintiff's complaint based on the immunity from civil liability
provided to employers under the Act. We reverse.
Considering the facts in the light most favorable to
plaintiff, Rule 4:46-2(c), we are satisfied a rational jury can
find that at the time of the accident, defendant was aware that
the conditions at the Asbury facility exposed employees like
1
Plaintiff received standard workers' compensation benefits from
ICO's Workers' Compensation insurance carrier.
2 A-3858-14T4
plaintiff to a high risk of serious injury or death. A jury can
also find that the accident that caused plaintiff's injuries
resulted from defendant's intentional decision to abate electrical
code violations found in the Asbury facility, without installing
the specialized lighting and wiring required in a Class II,
Division 2 hazardous facility, like the one in Asbury. Finally,
the jury may reasonably infer that defendant's failure to make the
required specialized electrical repairs was part of its overall
cost-savings plan to relocate the Asbury facility to Allentown,
Pennsylvania.
In this light, the Law Division erred in granting defendant's
motion for summary judgment and dismissing plaintiff's complaint
as a matter of law. Our legal analysis is informed by the following
facts, which we derived from the record developed by the parties
before the Law Division.
I
Defendant ICO is a global company engaged in the business of
grinding plastic pellets into powder. This pulverization process
creates a fine powdered dust that is both a product and a byproduct
of defendant's milling operations. Many of the materials
pulverized or blended at defendant's facilities are highly
explosive. At all times relevant to this case, defendant's plant
3 A-3858-14T4
in Asbury was classified as a Class II, Division 2 "hazardous
location."
On July 2, 2007, approximately one year before plaintiff's
accident, accumulations of combustible dust ignited in Building
One in the Asbury facility. The explosion injured one employee
and caused significant damage to the facility. Following the
incident, a compliance officer from the Occupational Safety and
Health Administration (OSHA) observed 1.5 to 2 inches of dust
accumulation atop the facility's masonry walls and ceiling beams.
OSHA cited defendant for violation of 29 C.F.R. 1910.22(a)(1),
finding defendant's "[p]lace(s) of employment were not kept clean
and orderly, or in a sanitary condition." OSHA also cited
defendant for violation of 29 C.F.R. 1910.307(b), stating that
defendant's "[e]quipment, wiring methods, and installations . . .
were not intrinsically safe, or approved for the hazardous . . .
location[.]" Defendant entered into a stipulation of settlement
through which OSHA assessed a total of $7500 in penalties and
defendant affirmatively stated that it had abated all violations.
Defendant assured OSHA that going forward, it would comply with
all of the requirements of the Occupational Safety and Health Act.
On August 15, 2007, ICO President Eric Parsons sent an email
to senior managers in which he acknowledged that in accordance
with regulations promulgated by OSHA and the National Electrical
4 A-3858-14T4
Code, the Asbury plant's classification required special
electrical and wiring methods. Parsons expressed particular
concern for the danger associated with the presence of combustible
dust in a Division 2 facility like the one in Asbury. Parsons
noted that:
A Division 2 location is an area in which:
1) combustible dust, due to abnormal
operations, may be present in the air in
quantities sufficient to produce explosive or
ignitable mixtures or
2) where combustible dust accumulations are
present but are normally insufficient to
interfere with the normal operation of
electrical equipment or other apparatus but
could as a result of infrequent malfunction
of handling or processing equipment become
suspended in the air or
3) which combustible dust accumulations on,
in, or in the vicinity of the electrical
equipment could be sufficient to interfere
with the safe dissipation of heat from the
electrical equipment or could be ignitable by
abnormal operation or failure of electrical
equipment.
Parsons admonished all ICO senior level staff that federal
and state regulators "have become much more educated on the hazards
associated with dust in [the] last couple of years." The
regulators would be making random audits "to determine the level
of compliance." Parsons advised that ICO planned to upgrade its
facilities. He ended the email by noting that the facility in
5 A-3858-14T4
Asbury, New Jersey had installed, or was in the process of
installing equipment for "nuisance dust collection in the ambient
and cryo areas." Parsons emphasized that:
accumulations must be kept below 1/16" and if
accumulations exceeds 1/16" systems must be
shut down and cleaned. Nuisance dust
collection with pickup points in the areas
most likely to leak dust will be critical to
keeping dust concentrations to a minimum.
The information above is not a complete
description of the new requirements but a
taste of the big ticket items that will have
to be addressed and resolved. This will need
to be considered when preparing your capital
budgets for 2008.
In a letter dated November 29, 2007, Paul Castiglia,
defendant's Facility Safety Coordinator of the Asbury facility,
formally informed an inspector of the New Jersey Department of
Community Affairs that defendant:
does not plan on refurbishing building number
1 that was damaged by the fire [on] July 2,
2007. It will be designated as a warehouse
and not for manufacturing. The designation
of a hazard area [of] Class II Division 2,
will no longer be in effect, thus not
requiring an upgrade to the sprinkler system
to meet the requirements of a hazardous area.
From the July 2007 fire to the July 26, 2008 accident, the
evidence shows that the measures taken by management staff at the
Asbury facility did not reflect any attempt to adhere to the safety
standards Parsons established in his August 15, 2007 email.
6 A-3858-14T4
Specifically, the standards included keeping dust accumulations
below 1/16 of an inch. The deposition testimonies of Joseph
Stangle, Production Manager and Shipping and Receiving Manager,
Frederick Milford, Third Shift Supervisor, and Stuart Hillyer,
Working Supervisor, all consistently maintain that no changes or
upgrades actually occurred in the Asbury facility from July 2007
to July 2008.
Defendant also did not produce records documenting
housekeeping measures, employee training sessions, or completed
checklists that indicate employees were apprised of the importance
of avoiding dust accumulation and thereafter implemented allegedly
revised cleaning procedures. Defendant was only able to produce
materials documenting that it conducted four safety meetings in
the year following the July 2, 2007 explosion.
Kyle Kester began working as the Plant Manager at the Asbury
facility in September 2000. He was the Plant Manager during both
the July 2007 accident and plaintiff's July 26, 2008 accident. He
continued in this capacity until the facility closed down. Kester
makes clear in his deposition testimony that he did not have any
input in drafting defendant's housekeeping policy, which was
updated on August 9, 2007. The policy required that records be
kept showing: (1) the date housekeeping inspections were
conducted; (2) identification of areas of concern; (3) and what
7 A-3858-14T4
type of corrective action was taken. The inspector was required
to sign and date the document. As Plant Manager, Kester did not
have any documents attesting to the implementation of the policy.
In fact, Kester could not provide any information about whether
this housekeeping policy was even implemented.
Keith Haddock, ICO Environmental Health and Safety
Coordinator, testified that he did not receive any training or
instructions on safety protocols. On his own initiative, he
conducted independent research online. Third Shift Supervisor
Frederick Milford testified that it was possible that the four
safety meetings referenced in discovery produced by defendant were
the only safety meetings defendant conducted between July 2007 and
July 2008.
Plaintiff also produced the deposition testimony of several
individuals who were not employed by ICO, but were nevertheless
able to observe large amounts of dust while visiting the Asbury
facility following the July 2, 2007 explosion. Jacob Smith,
Project Manager for Iron Hill Construction Management Co., visited
the facility several times before plaintiff's accident in July
2008. Smith testified that each time he was at the facility,
Building Three was covered in dust. Comroe Advanced Power, Inc.
Foreman William Jacquillard also visited Building Three in 2008.
8 A-3858-14T4
He estimated that dust accumulations were more than one inch deep
in certain locations:
Half inch, three quarters of an inch. I never
actually measured it, but it varied. In some
places it was a quarter of an inch. In some
places it might have been more than an inch.
It depends on what they would do in that area.
A lot of it was built up I guess after a period
of time on the purlins and stuff. It's not
something that happens in a short period of
time. It builds up in the heavy areas.
Parsons testified that ICO began constructing a new facility
in Allentown, Pennsylvania with the intent of closing the Asbury
facility. The record shows that the electrical equipment installed
at ICO's Allentown facility was sealed, explosion-proof, and
designed to minimize contact between wiring and combustible dust.
By contrast, the wiring at the Asbury facility did not have this
kind of special insulation. The whole facility was electrified
with conventional wire. While ICO's newer facility was constructed
in compliance with Class II, Division 2 requirements, plaintiff
presented competent evidence that ICO "continued production at its
Asbury facility with complete disregard of its Class II, Division
2 designation."2
2
In contrast to the emphatic statements he made in his August 15,
2007 email, Parson testified at his deposition that he was not
certain whether the Asbury facility ever received a Class II,
Division 2 designation classification.
9 A-3858-14T4
Thus, despite the assurances and commitment to safety
protocols set forth in the settlement with OSHA and the objectives
described in Parson's email, the record contains sufficient
competent evidence from which a jury may infer that ICO
intentionally failed to adhere to Class II, Division 2 electrical
requirements at the Asbury facility as part of its decision to
relocate to a modern, cost efficient facility.
II
On July 14, 2008, twelve days before plaintiff's accident,
the New Jersey Division of Codes and Standards shut down ICO's
Asbury facility for fire code violations that included a non-
functioning sprinkler system, non-functioning exit door,
electrical work installed without current protection, and failure
to provide exit signs above exterior doors. The New Jersey
Department of Community Affairs declared the building "unsafe for
human occupancy" and prohibited any individuals from occupying the
building "until the structure is rendered safe and secure."
To remedy the electrical code deficiencies, ICO contracted
with Iron Hill Construction, who in turn subcontracted with Comroe
Advanced Power, Inc. Despite the mandates of ICO's Contractor
Safety Program, defendant failed to instruct its contractor or its
subcontractor to install the necessary lighting and wiring in
accordance with Class II, Division 2 requirements.
10 A-3858-14T4
Gregory Ruhnke, the principal owner of Comroe Advanced Power,
Inc., testified in his deposition that no one from ICO ever
indicated to him that any of the electrical work at the Asbury
facility needed to be done under special requirements because of
the nature and classification of the facility. The Comroe invoice
documenting the work states that it: "provided new temporary
emergency lighting and made existing emergency lighting
operational as instructed by New Jersey code officials." Finally,
Comroe's foreman William Jacquillard testified at his deposition
that no one from ICO informed him that the area where the explosion
occurred that injured plaintiff was classified as a Class II,
Division 2 hazardous location. Jacquillard stated:
. . . I was told that they were moving. As
far as what I was told, I didn't think the
company was going to be functioning there. It
was so that they could get there stuff out and
get the building back open so they could move
out. I didn't - - I was under the impression
by what I was told that there were not going
to function as a company there anymore. So,
I don't know if any of that applies to your
question, but that's what I was told, so - -
Q. Are you familiar with some of those special
methods that I just mentioned to you, the dust
ignition proof and dust tight, are you
familiar with those things?
A. Yes.
Q. Were any of those special wiring methods
employed or utilized by Comroe for any of the
11 A-3858-14T4
electrical work or wiring work that was done
at ICO between July 14, 2008 and July 26, 2008?
A. No, sir.
In a letter dated July 15, 2008, Parsons notified the
Department of Community Affairs that ICO would be ceasing
production at its Asbury facility "on or before October 15, 2008."
In a Supplementary Investigation Report filed by Detective Kristen
Larsen of the Hunterdon County Prosecutor's Office on July 29,
2008, it is noted that ICO was permitted to reopen the Asbury
plant on July 17, 2008.
On July 26, 2008, at approximately 5:52 a.m., a powerful dust
explosion occurred in Building Three of ICO's Asbury facility.
Plaintiff recalls experiencing two blasts within quick
succession,3 at least one of which propelled burning powders onto
his body and clothing. The fire quickly spread throughout the
building's interior. The Bloomsbury Fire Department did not gain
control of the fire until 8:14 a.m. Fire Departments from the
neighboring communities of Stewartsville, Lebanon, High Bridge,
Quakertown, Clinton, Pattenburg, and Asbury worked in unison to
provide additional assistance.
3
According to a report prepared by plaintiff's expert to determine
the origin of the fire: "A secondary explosion typically occurs
when trapped dust is shaken loose in a super heated environment."
12 A-3858-14T4
Plaintiff sustained second and third degree burn-related
injuries over twelve percent of his body. Another ICO employee
received superficial burns and refused medical treatment at the
scene. New Jersey State Police documented extensive damage to the
building's structure. Principal Fire Inspector Charles F. Wian
deemed the facility an imminent threat and immediately ordered
that it be shut down. ICO never resumed operations at the Asbury
location.
Several governmental agencies investigated the explosion.
The New Jersey State Police and the Hunterdon County Prosecutor's
Office investigated to determine if there was any criminal
activity. The New Jersey Department of Community Affairs and OSHA
investigated to determine whether the accident was caused, in
whole or in part, by violations of state and/or federal workplace-
safety laws. Plaintiff's counsel also retained a number of
professionals and experts in this field who provided reports
containing their opinions as to the cause of the explosion and
fire.
Detective Jessica Melendez of the Hunterdon County
Prosecutor's Office opined that the fire's "exact point of origin
[could] not be determined." However, Detective Melendez
acknowledged the possibility that "the electrical wiring for the
newly installed exit signs" could have initiated the explosion.
13 A-3858-14T4
Detective Michael Agens of the New Jersey State Police, Arson/Bomb
Unit, similarly opined that the fire's ignition source was
undetermined. He was unable to rule out a "multitude of ignition
sources[.]"
Kenneth Kendrac, a certified fire investigator retained by
plaintiff's counsel, opined that the fire originated in the area
where Comroe had previously installed exit signs and emergency
lights. As Kendrac explained in his written report:
Based upon my review of all materials
including investigation reports, photographs,
deposition testimony and based on a process
of elimination, I have concluded that the
obvious source of ignition for the dust
explosion on July 26, 2008 was the newly
installed emergency lighting/exit sign that
was performed by Comroe in the days prior to
the explosion.
A report prepared by plaintiff's other expert, Duvall Professional
Services, P.C., concurs with the conclusions reached by Kendrac:
The following report will show that the
electrical work performed just prior to the
fire and explosion was the probable cause, and
that the work was performed in violation of
applicable codes. . . . Review of the
documentation and analysis of the photographs
. . . reveal a point of origin of the fire at
the exit sign over the exit door next to the
electrical switchgear room. The photographs
clearly show improper and unsafe equipment and
improper installation.
Investigators have characterized the incident as a dust
explosion. After the fire was extinguished, investigators noted
14 A-3858-14T4
heavy coatings of plastic dust in Building Three. State Police
Detective Varick observed that dust was "[p]retty much on every
surface" inside the facility. Fire Sub-code Official Jerry Velardi
inspected the facility on July 28, 2008. He also noted that "[t]he
entire facility was covered with dust." Principal Fire Inspector
Charles Wian stated in his deposition that he observed dust "[o]n
the sprinkler heads, the floor, the walls, the locker room[,]" and
"[u]nder the office area." Finally, OSHA's investigation revealed
that the fireball which injured plaintiff formed when Class II
dusts ignited within the facility.
On December 9, 2008, OSHA cited ICO for a repeat violation
of 29 C.F.R. 1910.22(a)(1). OSHA found that ICO's place of
employment was "not kept clean and orderly, or in a sanitary
condition[,]" and that as a result, "[m]icronized powders" were
allowed to accumulate and ignite, thereby injuring plaintiff. In
a subsequent stipulation of settlement, OSHA agreed to assess
penalties in the amount of $12,500.
III
We review a grant of summary judgment applying the same
standard used by the trial court. Steinberg v. Sahara Sam's Oasis,
LLC, 226 N.J. 344, 366 (2016). That standard is well-settled.
[I]f the evidence of record—the pleadings,
depositions, answers to interrogatories, and
affidavits—"together with all legitimate
15 A-3858-14T4
inferences therefrom favoring the non-moving
party, would require submission of the issue
to the trier of fact," then the trial court
must deny the motion." R. 4:46-2(c); see
Brill v. Guardian Life Ins. Co. of Am., 142
N.J. 520, 540. On the other hand, when no
genuine issue of material fact is at issue and
the moving party is entitled to a judgment as
a matter of law, summary judgment must be
granted. R. 4:46-2(c); see Brill, supra, 142
N.J. at 540.
[Ibid.]
The Act represents our State's "historic trade-off" to
provide employees guaranteed and swift reduced compensation
following a workplace injury, regardless of fault, in exchange for
relinquishing certain rights. Millison v. E.I. Du Pont de Nemours
& Co., 101 N.J. 161, 174 (1985). A party who expressly or
implicitly accepts the Act's provisions is barred from pursuing
common law remedies unless the party can show that his or her
employer committed an "intentional wrong." Id. at 169; see
N.J.S.A. 34:15-8. Although the Legislature did not intend the
workers' compensation system to insulate employers from common law
liability for all willful misconduct short of deliberate assault
and battery, the scheme contemplates that as many claims as
possible be processed exclusively within the Act. Millison, supra,
101 N.J. at 177.
In order to show an intentional wrong, a plaintiff must show
his or her employer acted with "substantial certainty" that injury
16 A-3858-14T4
or death would result. Van Dunk v. Reckson Assocs. Realty Corp.,
210 N.J. 449, 451 (2012). "[M]ere knowledge and appreciation of
a risk" is insufficient. Millison, supra, 101 N.J. at 179. For
this reason, the finding of an OSHA violation in the wake of a
workplace accident is not dispositive of whether an employer
committed an intentional wrong. Laidlow, supra, 170 N.J. at 622–
23. Such a finding is one factor to be considered among a totality
of the circumstances. Van Dunk, supra, 210 N.J. at 469.
In addition to showing an employer's knowledge that its
actions were substantially certain to result in injury or death,
the resulting injury must be "more than a fact of life of
industrial employment" and "plainly beyond anything the
Legislature [would have] intended [the Act] to immunize." Id. at
462 (quoting Laidlow, supra, 170 N.J. at 617). Deciding whether
the so-called "context prong" is met is solely a judicial function.
Laidlow, supra, 170 N.J. at 623. Thus, a trial court should deny
an employer's motion for summary judgment if the substantial
certainty standard presents a jury question and the court concludes
that the plaintiff's allegations would meet the context prong if
proven true. Ibid.In Laidlow, the Court was asked to decide whether an employer
committed an intentional wrong when it deceived safety inspectors
by disengaging and re-engaging the safety mechanisms on a dangerous
17 A-3858-14T4
piece of equipment. Id. at 606. In 1979, defendant installed a
safety guard on its rolling mill. Id. at 608. From that date
until the plaintiff's injury in 1992, the employer kept the guard
in place only when OSHA inspectors were physically present at its
plant. Ibid. Prior to the injury at issue, two employees reported
incidents in which their hands were nearly pulled into the machine.
Id. at 607–08. The plaintiff's injury occurred in a manner similar
to that of the previously reported incidents. Ibid. In
determining that Millison's "substantial certainty" test had been
met, the Court cited "the prior close-calls, the seriousness of
any potential injury that could occur, [the plaintiff's]
complaints about the absent guard, and the guilty knowledge of
[defendant] as revealed by its deliberate and systematic deception
of OSHA." Id. at 622.
In Mull v. Zeta Consumer Products, 176 N.J. 385 (2003), the
plaintiff was injured while attempting to repair a machine at a
plastic bag manufacturing facility. Id. at 387. Prior to the
plaintiff's injury, OSHA had cited the employer for safety
violations. Id. at 392. The defendant nevertheless removed safety
devices from the machine, causing another employee to injure her
hand. Ibid. In holding that the defendant's conduct satisfied
Millison's "substantial certainty" standard, the Court found the
defendant's knowledge of prior accidents, plaintiff's safety
18 A-3858-14T4
concerns, and OSHA citations could create a substantial certainty
of injury. Ibid. With respect to Millison's context prong, the
Court concluded that "[t]he Legislature would not have considered
the removal of the winder's safety devices, coupled with the
employer's alleged knowledge of the machine's dangerous condition
due to prior accidents and employee complaints, in addition to
OSHA's prior violation notices, to constitute simple facts of
industrial life." Id. at 392–33 (quoting Laidlow, supra, 170 N.J.
at 622).
In Crippen v. Central Jersey Concrete Pipe Company, 176 N.J.
397 (2003), the plaintiff's work involved loading sand and gravel
into hoppers. Id. at 399. While performing his job, the plaintiff
fell into a hopper and suffocated. Id. at 400. OSHA had previously
cited the defendant for several violations which had yet to be
remedied at the time of the plaintiff's accident. Id. at 401–03.
Furthermore, the defendant's Environmental Health and Safety
Manager admitted during discovery that the hazardous conditions
noted in OSHA's citations could have contributed to the plaintiff's
death. Id. at 403.
The Court held that "a jury reasonably could conclude that
defendant had knowledge that its deliberate failure to cure the
OSHA violations would result in a substantial certainty of injury
or death to one of its employees." Id. at 409. The Court also
19 A-3858-14T4
found that Millison's context prong was satisfied as a matter of
law, in large part because the defendant deliberately ignored OSHA
violations and subsequently attempted to deceive OSHA into
believing that the violations had been abated. Id. at 411. In
this regard, the Court stated that the defendant "effectively
precluded OSHA from carrying out its mandate to protect the life
and health of [the defendant's] workers." Ibid. (quoting Laidlow,
supra, 170 N.J. at 621).
Most recently, in Van Dunk, the Court held that an employer's
reckless conduct at a construction site failed to satisfy the
substantial certainty of injury or death required for the
commission of an intentional wrong. Van Dunk, supra, 210 N.J. at
471. However, the Court distinguished the salient facts in that
case from the more egregious circumstances which it had previously
found to defeat an employer's motion for summary judgment:
What distinguishes Millison, Laidlow,
Crippen, and Mull from the present matter 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, . . . knowledge of prior injury
or accidents, and previous complaints from
employees. . . . In particular, this Court
was mindful in those cases of the durational
aspect of the employer's intentional
noncompliance with OSHA requirements or other
demonstrations of a longer-term decision to
forego required safety devices or practices.
20 A-3858-14T4
[Ibid. (emphasis added) (citations omitted).]
Our Supreme Court's history of wrestling with the nuances of
this standard, as applied in a variety of factual settings, has
bequeathed us the analytical tools to guide our discussion of the
key facts in this case. Here, the motion judge erred because he
failed to give plaintiff the benefit of all legitimate inferences
that can be drawn from the evidence amassed by the parties. When
viewed in the light most favorable to plaintiff, the evidence can
support a jury verdict finding defendant intentionally exposed
plaintiff to a work environment that carried substantial certainty
of injury or death. The evidence shows defendant failed to take
the corrective action required to render the Asbury facility in
compliance with the standards articulated by its own President,
Eric Parsons, as reflected in his August 15, 2007 email.
Defendant affirmatively promised to abate any OSHA violations
outstanding at the time of the July 2, 2007 explosion. However,
the evidence shows defendant continued to allow combustible dust
to accumulate in hazardous amounts on various surfaces of the
Asbury facility. Defendant repeatedly asserted that it would
improve housekeeping by implementing a hazard communication system
and increasing the frequency of its employee safety training
sessions. Conspicuously missing from the record, however, is
21 A-3858-14T4
documentary evidence showing these safety protocols were actually
implemented and consistently followed.
The record is also unclear as to whether defendant did
anything to upgrade its two-tiered dust collection system between
the explosions on July 2, 2007 and July 26, 2008. Defendant only
described its nuisance dust system and its central vacuum system,
both of which were in place at the time of the July 2, 2007
explosion. A reasonable jury can find defendant deliberately
deceived OSHA into believing these improvements were being
implemented, when in fact defendant had already made the business
decision to shut down the Asbury facility and relocate to
Allentown, Pennsylvania. Finally, plaintiff produced sufficient
evidence from which a jury can infer that defendant's decision to
install non-conforming electrical equipment days before the
explosion that caused plaintiff's injuries is directly related to
the relocation. Stated differently, a jury can find defendant
engaged in a cost-benefit analysis and decided it was more
economically sound to place plaintiff at substantial risk of
serious injury or death than to repair the Asbury facility's
electrical system in accordance with the enhanced safety
standards.
22 A-3858-14T4
For these reasons, we reverse the trial court's decision to
grant defendant's motion for summary judgment and remand this case
for further proceedings consistent with this opinion.
Reversed and remanded. We do not retain jurisdiction.
23 A-3858-14T4