LOUIS MAGNIFICO VS. NATHANIEL JAMES (L-4279-16, UNION 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NOT FOR PUBLICATION WITHOUT THE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-0883-18T3
LOUIS MAGNIFICO and
ANNAMARIE MAGNIFICO,
husband and wife,
Plaintiffs-Appellants,
v.
NATHANIEL JAMES and
TOWNSHIP OF MILLBURN,
Defendants-Respondents.
_____________________________
Argued October 29, 2019 – Decided December 3, 2019
Before Judges Messano, Ostrer and Vernoia.
On appeal from the Superior Court of New Jersey, Law
Division, Union County, Docket No. L-4279-16.
Michael James Confusione argued the cause for
appellants (Hegge & Confusione, LLC, attorneys;
Michael James Confusione, of counsel and on the
brief).
Leslie A. Koch argued the cause for respondents
(Methfessel & Werbel, attorneys; Leslie A. Koch and
Eric Labes Harrison, on the brief).
PER CURIAM
In this personal injury action arising out of a motor vehicle accident,
plaintiffs Louis Magnifico and Annamarie Magnifico 1 appeal from amended
orders granting summary judgment to defendants and dismissing their
complaint. Louis and defendant Nathaniel James were coworkers employed by
defendant Township of Millburn (Millburn) when they were involved in an
accident while together in a Millburn-owned vehicle driven by James. Louis
was severely injured in the accident, and he and Annamarie brought suit against
James and Millburn, alleging: (1) James carelessly failed to operate the vehicle
in a safe manner; (2) Millburn negligently permitted James to operate the
vehicle; and (3) Annamarie incurred expenses from Louis's treatment and was
deprived of Louis's society, services, and consortium.
In granting summary judgment, the motion court found the claims are
barred by the Workers' Compensation Act (Act), N.J.S.A. 34:15-1 to -146,
which generally provides the exclusive remedy against an employer and co-
employees for employees injured in work-related accidents. On appeal,
plaintiffs argue the motion court erred because their claims fall within the
1
Because they share the same surname, we refer to plaintiffs by their first names
for clarity and simplicity. We do not intend any disrespect by such informality.
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narrow exception to the Act's exclusivity requirement for cases of "intentional
wrongs." Based on our review of the record in light of the applicable law, we
disagree and affirm.
I.
We discern the following material undisputed facts from the record before
the motion court and view the facts and all reasonable inferences in the light
most favorable to plaintiffs, the non-moving parties. 2 R. 4:46-2(c); Chiofalo v.
State, 238 N.J. 527, 531 (2019) (citing Brill v. Guardian Life Ins. Co. of Am.,
142 N.J. 520, 523 (1995)).
Louis and James were employed by Millburn's Department of Public
Works. On March 26, 2015, Louis was a passenger in a Millburn-owned truck
2
We limit our findings of the undisputed facts to those presented in the
statement of material facts and opposition submitted to the motion court in
accordance with Rule 4:46-2(a) and (b), and we do not consider or rely on
information, evidence, or purported facts that were not presented to the motion
court in accordance with the Rule. See Kenney v. Meadowview Nursing &
Convalescent Ctr., 308 N.J. Super. 565, 573 (App. Div. 1998) (refusing to
consider "factual assertions in [the] appeal that were not properly included in
the motion . . . for summary judgment below" pursuant to Rule 4:46-2).
Therefore, we reject the parties' reliance on any purported facts that were not
included in the Rule 4:46-2(a) and (b) statements and that are asserted for the
first time on appeal, even if they support such purported facts by citation to
deposition transcripts that were included in the record presented to the motion
court.
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driven by James and was severely injured when the truck hit a tree and rolled
onto its side. Immediately prior to the collision, Louis realized that the truck
was off the road, James had his head down, and appeared to be asleep. Louis
suffered significant injuries as a result of the accident.
James held a commercial driving license (CDL) since he was hired by
Millburn in 2006. As part of the CDL process, James underwent an annual
medical examination. During his 2008 examination, James was diagnosed with
obstructive sleep apnea, for which he uses a CPAP machine3 nightly. During
his 2011 examination, James was diagnosed with type 2 diabetes and high blood
pressure.
In accordance with the physical qualifications for drivers prescribed in the
Federal Motor Carrier Safety Regulations, 49 C.F.R. §391.41-.45, James's
doctor determined his medical issues did not disqualify James from maintaining
his CDL. Each year he was employed by Millburn, James passed the medical
examination and maintained his CDL. Millburn periodically had James's
driver's abstract reviewed to ensure his license was in good standing and his
3
CPAP, or continuous positive airway pressure, "is a treatment that uses mild
air pressure to keep the airways open," and is used "to treat sleep-related
breathing disorders including sleep apnea." CPAP, N AT'L HEART, LUNG, &
BLOOD INST., https://www.nhlbi.nih.gov/health-topics/cpap (last visited Nov.
14, 2019).
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record complied with CDL regulations. In the 2007 and 2013 driver's abstract
reviews, James was found to meet the requirements for safe driving according
to 49 C.F.R. §391.25.
John Collas, Millburn's Supervisor of Roads and Sewers, testified
Millburn relied on National Safety Compliance, Inc. to monitor and review
drivers' abstracts and to perform drug and alcohol testing of its employees. John
Bace, Millburn's Superintendent of Public Works, confirmed Millburn used
National Safety Compliance, Inc. from the mid-1990's until approximately 2014,
when GMS Compliance assumed the contract. According to Bace, the
companies perform yearly re-verifications of the road crews' CDLs, review
drivers' abstracts, and perform random drug testing throughout the year. The
companies report the results to Bace.
James was involved in a number of prior accidents. On one occasion
James struck a tree in a parking lot while salting, but he continued to work and
salt the parking lots and street that day. On another occasion, James struck a
tree while backing up and bent his vehicle's tailgate, but there was no serious
damage to the vehicle and no insurance claim was filed. Finally, on a third
occasion, James backed a truck into a garage and impacted its door jamb, but
there was no damage to the truck.
A-0883-18T3
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Collas was aware James suffered from sleep apnea. However,
Superintendent Bace testified that having sleep apnea does not disqualify an
otherwise qualified individual from possessing a CDL.
On July 2, 2014, less than one year before the accident in which Louis
was injured, James passed a medical examination. Dr. Stanley Parman, M.D.,
approved the medical examination report, checking the box noting that James
met the medical standards required to maintain his CDL.
Plaintiffs filed a complaint alleging that James negligently and carelessly
drove the vehicle that proximately caused Louis's injuries, that James had been
diagnosed with narcolepsy 4 prior to the accident, and that Millburn officials
negligently entrusted James with the vehicle because they were aware of this
diagnosis.
After the close of discovery, defendants filed a motion for summary
judgment. Defendants argued plaintiffs did not sustain their burden to overcome
the Act's exclusivity bar of civil claims by showing defendants committed an
4
Narcolepsy is defined as "recurrent, uncontrollable, brief episodes of sleep,
often associated with hypnagogic or hypnopompic hallucinations, cataplexy,
and sleep paralysis." Dorland's Illustrated Medical Dictionary 1232 (32nd ed.
2012). James was never diagnosed with narcolepsy, and, on appeal, plaintiffs
instead argue it was James's diagnosed sleep apnea that resulted in his negligent
and careless operation of the vehicle that caused Louis's injuries.
A-0883-18T3
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intentional wrong. Plaintiffs opposed the motion and filed a cross-motion to re-
open discovery and compel production of certain limited discovery. Plaintiffs
argued they had been unable to admit or deny many of defendants' factual
averments submitted as part of the summary judgment motion, R. 4:46-2(a),
because defendants had "failed to provide Mr. James's entire employment
record." The court granted plaintiffs' motion, and defendants provided plaintiffs
with James's entire employment record.
After hearing oral argument, the court granted defendants summary
judgment, finding plaintiffs failed to sustain their burden of overcoming the
Act's exclusivity bar by establishing defendants committed an intentional
wrong. The court noted, however, that its decision did not affect plaintiffs'
rights in Workers' Compensation Court or any benefits under the pension
system.
On October 24, 2018, the court amplified its oral decision in a written
statement of reasons. The court first found it undisputed that: (1) the accident
occurred during the course of Louis's employment; and (2) Millburn's Workers'
Compensation carrier paid for Louis's medical expenses in accordance with the
Act, N.J.S.A. 34:15-8. The court then found that "[e]xcept in cases of
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intentional wrong," the Act provides the exclusive remedy against an employer
for employees injured in work-related incidents.
The court articulated the standard for the "intentional wrong" exception,
noting the Act does not bar civil claims when an employee can show his or her
employer knew an injury or death was substantially certain to result. The court
analyzed the facts and determined plaintiffs did not satisfy their burden. The
court found Millburn did not know injury or death was substantially certain to
result when James drove the vehicle because Millburn had no information to
suggest that any of James's prior accidents meant his driving posed a risk that
an injury or death was substantially certain to result, and there was no evidence
Millburn knew James had a propensity to fall asleep while driving. Fin ally, the
court found that, even if James drove negligently, "a suit on account of such
negligence is barred by the Workers' Compensation Act and does not attach
liability to either James or [Millburn]."
Because all of the counts in plaintiffs' complaint asserted claims that are
barred by the Act, the court dismissed the complaint with prejudice. The court
further concluded Annamarie's claim must fail as a matter of law because Louis's
claims were without merit.
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The court entered an order granting defendants' motion for summary
judgment and dismissing the complaint. This appeal followed.
II.
We review a trial court's grant of summary judgment de novo. Cypress
Point Condo. Ass'n v. Adria Towers, LLC, 226 N.J. 403, 414 (2016). Summary
judgment is appropriate when there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law. R. 4:46-2(c). We must
"consider whether the competent evidential materials presented, when viewed
in the light most favorable to the non-moving party in consideration of the
applicable evidentiary standard, are sufficient to permit a rational factfinder to
resolve the alleged disputed issue in favor of the non-moving party." Brill, 142
N.J. at 523. Moreover, we will only review the evidence presented to the trial
court that is properly part of the record on appeal. Scott v. Salerno, 297 N.J.
Super. 437, 447 (App. Div. 1997) ("[A]ny evidence on the issue which is not in
the record cannot be considered. Appellate courts can consider a case only to
the point at which it had been unfolded below.").
Here, plaintiffs do not argue there are genuine issues of material fact
precluding summary judgment. They concede that the material facts are not
disputed, but they argue those facts do not support the court's determination that
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9
defendants are entitled to judgment as a matter of law. We therefore consider
whether the motion court properly determined defendants were entitled to
judgment as a matter of law when viewing the undisputed evidence in the light
most favorable to plaintiffs, the non-moving parties. R. 4:46-2(c); Brill, 142
N.J. at 523.
The Workers' Compensation Act reflects "a historic trade-off whereby
employees relinquish[] their right to pursue common-law remedies in exchange
for automatic entitlement to certain, but reduced, benefits whenever they suffer[]
injuries by accident arising out of and in the course of employment." Caraballo
v. City of Jersey City Police Dept., 237 N.J. 255, 264 (2019) (quoting Stancil v.
ACE USA, 211 N.J. 276, 285 (2012)). In exchange for guaranteed benefits
under the Act, "the employee agrees to forsake a tort action against the
employer." Ibid. (quoting Ramos v. Browning Ferris Indus., Inc., 103 N.J. 177,
183 (1986)). Thus, in most cases, the Act provides the exclusive remedy against
an employer for employees injured in a work-related incident. Kibler v.
Roxbury Bd. of Educ., 392 N.J. Super. 45, 47 (App. Div. 2007).
However, "[t]he Act's exclusivity can be overcome if the case satisfies the
statutory exception for an intentional wrong." Van Dunk v. Reckson Assocs.
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Realty Corp., 210 N.J. 449, 459 (2012); Caraballo, 237 N.J. at 265. Indeed,
N.J.S.A. 34:15-8 provides:
[i]f 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.
[(emphasis added)]. 5
The test for determining an "intentional wrong" has evolved. Charles
Beseler Co. v. O'Gorman & Young, Inc., 188 N.J. 542, 546 (2006). In Millison,
our Supreme Court noted "if 'intentional wrong' is interpreted too broadly, this
single exception would swallow up the entire 'exclusivity' provision of the Act."
101 N.J. at 177. To address this concern, the Court applied an "intent" analysis
to determine what constitutes "intentional wrong" within the meaning of the Act,
explaining:
the mere knowledge and appreciation of a risk—
something short of substantial certainty—is not intent.
The defendant who acts in the belief or consciousness
5
We recognize that the quoted language, adopted in 1961, expressly refers only
to suits against fellow employees. But, as the Supreme Court explained in
Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 161, 185 (1985), "the
intentional wrongs of an employer as well as those of co-employees fall outside
of the boundaries of the Compensation Act" because "the employer can act only
through its employees."
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that the act is causing an appreciable risk of harm to
another may be negligent, and if the risk is great the
conduct may be characterized as reckless or wanton,
but it is not an intentional wrong.
[Ibid.]
In Laidlow v. Hariton Mach. Co., the Court explained that "an intentional
wrong is not limited to actions taken with a subjective desire to harm, but also
includes instances where an employer knows that the consequences of those acts
are substantially certain to result in such harm." 170 N.J. 602, 613 (2002). The
Court concluded that:
in order for an employer's act to lose the cloak of
immunity of N.J.S.A. 34:15-8, two conditions must be
satisfied: (1) the employer must know that his actions
are substantially certain to result in injury or death to
the employee, and (2) the resulting injury and the
circumstances of its infliction on the worker must be (a)
more than a fact of life of industrial employment and
(b) plainly beyond anything the Legislature intended
the Workers' Compensation Act to immunize.
[Id. at 617]
Thus, an employee seeking to prove his employer committed an intentional
wrong has the burden of showing either that the employer had "a subjective
desire to injure" or that "based on all the facts and circumstances of the
case, . . . the employer knew an injury was substantially certain to result." Id.
at 614. Finally, the bar to establish "substantial certainty" is high, with the Court
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determining that "[a] probability or knowledge that such injury or death 'could'
result, is insufficient," Van Dunk, 210 N.J. at 470, and this court concluding
"[e]ven an injury 'caused by either gross negligence or an abysmal lack of
concern for the safety of employees' is insufficient to satisfy the 'intentional
wrong' exception," Kaczorowska v. Nat'l Envelope Corp., 342 N.J. Super. 580,
587-88 (App. Div. 2001) (quoting Marinelli v. Mitts & Merrill, 303 N.J. Super.
61, 72 (App. Div. 1997)).
Based on the record presented, we are satisfied the motion court properly
determined plaintiffs did not sustain their burden of demonstrating that their
claims fall within the narrow exception to the Act's exclusivity bar on civil
claims. Plaintiffs did not present evidence establishing Millburn committed an
intentional wrong either by having a subjective desire to injure Louis or by
knowing an injury was substantially certain to result when allowing James to
drive the vehicle.
Plaintiffs do not argue on appeal, and no evidence supports an argument,
that Millburn had "a subjective desire to injure" Louis. Laidlow, 170 N.J. at
614. Thus, we focus on plaintiffs' argument that Millburn committed an
intentional wrong because it knew an injury was substantially certain to result.
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In conducting its analysis to determine whether defendants' actions
presented a substantial certainty of injury or death, the motion court highlighted
six undisputed facts that it found particularly relevant. Namely, the court noted:
(1) James possessed an up-to-date CDL; (2) the CDL renewal process requires
an annual physical to ensure licensees are medically capable of driving; (3)
James was certified to drive at his annual physical; (4) no doctor suggested
James had narcolepsy or any other medical issue that would affect his ability to
operate a vehicle; (5) none of James's medical conditions were disqualifying
under Federal Motor Carrier Safety Regulation 49 C.F.R. §391.41-45; and (6)
James had a license in "good standing." The motion court concluded Millburn
had no notice James's use of the truck was substantially certain to result in injury
or death to an employee, and, in fact, "there [was] no competent evidence to
demonstrate that the accident was even caused in whole or in part by any medical
condition of James."
On appeal, plaintiffs contend Millburn's decision to allow James to drive
large commercial trucks did, in fact, create a "substantial certainty" that a
coworker would be injured, relying on two undisputed facts: (1) Collas knew
that James had been in three prior accidents; and (2) Collas knew James suffered
from sleep apnea. Plaintiffs also offer several other purported facts on appeal,
A-0883-18T3
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but they were not presented to the motion court in accordance with Rule 4:46-2.
Because these factual allegations were not properly presented to the motion
court during its consideration of the summary judgment motion, we cannot and
do not consider them now. Scott, 297 N.J. Super. at 447.
Plaintiffs first argue Millburn created a substantial certainty of injury or
death by allowing James to drive the vehicle even though Collas knew James
was diagnosed with sleep apnea. To establish Millburn had a "substantial
certainty," plaintiffs must demonstrate more than "[a] probability or knowledge
that such injury or death 'could' result." Van Dunk, 210 N.J. at 470.
Here, James has a successful history of renewing his CDL and passing his
medical examinations, and Superintendent Bace confirmed that, in addition to
not being disqualifying under 49 C.F.R §391.41-.45, sleep apnea does not
disqualify an otherwise qualified individual from possessing a CDL . Given
these undisputed facts, James is a qualified driver with a condition that, by itself,
does not prevent him from driving. Further, Millburn appropriately has a robust
policy in place for qualifying and re-qualifying its drivers. Thus, there was no
reason for Millburn to believe James's sleep apnea was "substantially certain" to
result in injury or death. Moreover, the summary judgment record is devoid of
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any competent evidence James's sleep apnea contributed to the causation of the
collision.
Plaintiffs also argue Millburn created a substantial certainty of injury or
death by allowing James to drive the vehicle even though Collas knew about
James's prior accidents. However, "the mere knowledge and appreciation of a
risk" falls short of "substantial certainty," Millison, 101 N.J. at 177, and "[e]ven
an injury caused by either gross negligence or an abysmal lack of concern for
the safety of employees is insufficient to satisfy the 'intentional wrong'
exception," Kaczorowska, 342 N.J. Super. at 587-88.
Here, James was involved in three prior accidents during his ten-year
employment. However, James's accidents were minor, intermittent, and did not
result in any personal injury or significant damage to the vehicle. Thus, even if
Millburn should have recognized a risk that an accident could occur again in the
future, there was no evidence that an accident involving personal injury was
substantially certain to occur if James drove a vehicle. Plaintiffs had the heavy
burden to demonstrate Millburn exceeded even "gross negligence" and an
"abysmal lack of concern" for safety; the fact that Millburn allowed James to
drive after three minor accidents in a ten-year span is insufficient to establish a
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"substantial certainty" that James's operation of a vehicle would result in injury
or death.
The "intentional wrong" exception to the Act's exclusivity bar of civil
claims is a purposefully narrow exception that imposes a heavy burden of proof.
Millison, 101 N.J. at 177. Nothing in the record suggests the motion court erred
in finding plaintiffs failed to sustain that burden. The motion court properly
determined defendants were entitled to judgment as a matter of law.
We also address Annamarie's per quod claim for loss of consortium. It is
well settled that a per quod claim is derivative in nature. Weir v. Mkt. Transition
Facility, 318 N.J. Super. 436, 444 (App. Div. 1999); see Horvath v. Rimtec
Corp., 102 F. Supp. 2d 219, 236 (D.N.J. 2000) (determining the right to recov er
on a loss of consortium claim depends on the existence of tortious conduct on
the part of the defendants). Indeed,
A per quod claim is only maintainable by reason of a
spouse's personal injury. It depends upon and is
incidental to the personal injury action. Our courts
have characterized it as a derivative claim, not a
separate cause of action. Such claims must be joined
with the primary claim in a single action. The
derivative claim can rise no higher than the personal
injury claim of the other spouse.
[Weir, 318 N.J. Super. at 444 (quoting Tichenor v.
Santillo, 218 N.J. Super. 165, 173 (App. Div. 1987))].
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Here, Annamarie's loss of consortium claim is derivative of Louis's
claims. Because Louis's claims are barred by the Act, Annamarie's claim also
fails because the motion court properly granted summary judgment as to
Annamarie's loss of consortium claim.
Affirmed.
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