                        NOT FOR PUBLICATION WITHOUT THE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
