                                NOT FOR PUBLICATION WITHOUT THE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-2761-17T3

DENISE SPATOLA,

          Plaintiff-Appellant,

v.

SEABROOK BROTHERS
& SONS, INC.,

          Defendant-Respondent,

and

SEABROOK FARMS, JAVIER
GONZALES, MATERIAL
HANDLING SUPPLY, INC., MHS
LIFT, INC., CROWN EQUIPMENT
CORPORATION, CROWN, and
CATERPILLAR, INC.,

          Defendants.


                    Argued March 20, 2019 – Decided May 7, 2019

                    Before Judges Koblitz, Currier, and Mayer.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Cumberland County, Docket No. L-0418-15.
            Michael R. Contarino argued the cause for appellant.

            Kathleen A. O'Malley argued the cause for respondent
            (Duane Morris LLP, attorneys; Kathleen A. O'Malley,
            of counsel and on the brief; Sarah M. Bachner, on the
            brief).

PER CURIAM

      Plaintiff Denise Spatola appeals from the January 18, 2018 order granting

summary judgment to her employer, defendant Seabrook Brothers & Sons, Inc.

Because plaintiff's accident occurred in her workplace, and she has not met the

stringent proofs to establish an intentional wrong, her exclusive remedy is under

the Workers' Compensation Act (the Act), N.J.S.A. 34:15-1 to -146. We affirm.

      Defendant is a company that processes fresh and frozen vegetables.

Plaintiff worked in Repack, which was the area where frozen vegetables are

sorted and packed pursuant to customer specifications. Forklifts brought large

bins of frozen vegetables from the warehouse into Repack throughout the day.

Data clerks were tasked with crossing the forklift lane in order to affix labels on

finished bins of frozen vegetables. After processing the frozen vegetables,

forklifts transported the finished products back to the warehouse.




                                                                           A-2761-17T3
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      At the time of these events, plaintiff was working as a data clerk.1 She

stated she was waiting for the forklifts to clear the area before walking the

twelve feet to the vegetable station. When she saw a forklift out of the corner

of her eye, she put her hands up and screamed "stop." The operator did not see

her and the forklift ran over her foot, causing her severe injuries. The forklift

operator tested negative for drugs and alcohol.

      Three weeks later, in response to an anonymous complaint, the

Occupational Health and Safety Administration (OSHA) made an unannounced

visit to defendant's work site. OSHA did not find any violations, and concluded

in its report that defendant "met its legal obligation to protect [its] employees."

      Repack is described as a "small place" and "very congested" as there are

approximately fifty employees working in the area, seven forklifts moving in

and out, and many bins of frozen vegetables. As a result, there have been

numerous reported and unreported forklift accidents in Repack and the

surrounding warehouses.2 Although nineteen documented forklift accidents had



1
  Plaintiff had also worked on the "mix crew," which required her to remain at
her workstation and not cross the forklift lane.
2
  A Repack shift supervisor testified there were "a lot of incidents w[h]ere
people got bumped [by forklifts] and were never reported."


                                                                           A-2761-17T3
                                         3
occurred at defendant's facility in the forty months prior to plaintiff's incident,

only eight of them were in Repack. Plaintiff's accident, however, was the "most

serious."

       Plaintiff filed suit, 3 alleging defendant's intentional conduct in not training

its forklift drivers adequately caused her injury. 4 After extensive discovery,

defendant moved for summary judgment. In a January 18, 2018 oral decision,

the trial judge found plaintiff was unable to meet the "high threshold" that

defendant's conduct was an intentional act sufficient to vault the Act's bar. The

judge noted it was "pretty hard for [him] to find that [defendant] did an

intentional act in causing [plaintiff's] injury when OSHA didn't find any

violations whatsoever." The judge also determined defendant had no intent to

deceive plaintiff or OSHA. He further explained, "plaintiff failed to prove the

intentional wrong because [she] could not show an affirmative act by the

employer beyond the employer having knowledge of the risk posed to the

plaintiff and other employees." Finally, the judge determined this accident was

"clearly part of industrial life" and of the type the legislature intended to be



3
  Plaintiff also instituted a workers' compensation action under which she has
received benefits.
4
    The remaining defendants were dismissed by stipulation.
                                                                               A-2761-17T3
                                           4
covered under the exclusive remedy of the Act. Summary judgment was granted

to defendant.

      On appeal, plaintiff alleges: 1) the trial judge did not make reasonable

inferences in her favor; and 2) she established both the conduct and context

prongs of the intentional wrong exception.

      We review a grant of summary judgment de novo, applying the same

standard as the trial court.    Townsend v. Pierre, 221 N.J. 36, 59 (2015).

Summary judgment should be granted only if the record demonstrates there is

"no genuine issue as to any material fact challenged and that the moving party

is entitled to a judgment or order as a matter of law." R. 4:46-2(c); see also Brill

v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 539-40 (1995). In determining

whether a summary judgment motion was properly granted, we review the

evidence, drawing "all legitimate inferences from the facts in favor of the non -

moving party." Globe Motor Co. v. Igdalev, 225 N.J. 469, 480 (2016) (citing

R. 4:46-2(c)).

      If no genuine issue of material fact exists, the inquiry then turns to

"whether the trial court correctly interpreted the law."         DepoLink Court

Reporting & Litig. Support Servs. v. Rochman, 430 N.J. Super. 325, 333 (App.

Div. 2013) (quoting Massachi v. AHL Servs. Inc., 396 N.J. Super. 486, 494


                                                                            A-2761-17T3
                                         5
(App. Div. 2007)). We review issues of law de novo and accord no deference

to the trial judge's legal conclusions. Nicholas v. Mynster, 213 N.J. 463, 478

(2013).

      Here, plaintiff argues the judge "repeatedly failed to view the evidence in

a light most favorable to plaintiff and instead viewed the evidence against

plaintiff." We discern no merit to this contention. Our review of the record

reflects the trial judge considered each argument plaintiff presented and made a

"discriminating search" of the evidence. Brill, 142 N.J. at 530 (quoting Ledley

v. William Penn Life Ins. Co., 138 N.J. 627, 641 (1995)).

      We are unpersuaded that plaintiff established her heavy burden to

demonstrate the commission of an intentional wrong sufficient to vault the Act's

bar to a negligence suit against her employer. The Supreme Court described the

Act "as an historic 'trade-off.'" Laidlow v. Hariton Mach. Co., 170 N.J. 602,

605 (2002) (quoting Millison v. E.I. DuPont de Nemours & Co., 101 N.J. 161,

174 (1985)). By implied agreement, employees give up their right to pursue

common-law remedies for work-related injuries and illnesses, in return for an

automatic entitlement to a limited recovery. Ibid.; see generally N.J.S.A. 34:15-

1 to -146. Similarly, the employer accepts strict liability for workplace injuries,




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                                        6
in return for limited and definite financial exposure.           This system is

accomplished through the Act's exclusive remedy provision:

            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.

            [N.J.S.A. 34:15-8.]

      The standard for proving the "intentional wrong" exception is

"formidable." Van Dunk v. Reckson Assocs. Realty Corp., 210 N.J. 449, 451

(2012). It is "interpreted very narrowly in order to further [the] underlying quid

pro quo goals [of the Act], so that as many work-related disability claims as

possible [can] be processed exclusively within the workers' compensation

system." Mabee v. Borden, Inc., 316 N.J. Super. 218, 226-27 (App. Div. 1998)

(citing Millison, 101 N.J. at 177). If the exception is "interpreted too broadly,"

it could "swallow up the entire 'exclusivity' provision of the [Act]," because

"virtually all employee accidents, injuries, and sicknesses are a result of the

employer or a co-employee intentionally acting to do whatever it is that may or

may not lead to eventual injury or disease." Millison, 101 N.J. at 177.




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                                        7
      Our Supreme Court has established a two-prong test to prove an employer

committed an intentional wrong. The plaintiff bears the burden of establishing

both the "conduct" and "context" prongs. Id. at 179.

      To satisfy the conduct prong, a plaintiff must show her employer acted

with "substantial certainty" that injury or death would result. Van Dunk, 210

N.J. at 451; Mull v. Zeta Consumer Prods., 176 N.J. 385, 391 (2003). "[M]ere

knowledge and appreciation of a risk" is insufficient. Millison, 101 N.J. at 179.

Rather, trial courts must determine whether the employer's conduct evidenced a

virtual certainty of death or injury. Id. at 178.

      A plaintiff must also establish the context prong, demonstrating the

resulting injury is "more than a fact of life of industrial employment" and

"plainly beyond anything the Legislature [would have] intended [the Act] to

immunize." Van Dunk, 210 N.J. at 462 (quoting Laidlow, 170 N.J. at 617);

Mull, 176 N.J. at 391. "[T]he context prong acts as an additional check against

overcoming the statutory bar to a common-law tort action" in order to "reinforce

the strong legislative preference for the workers' compensation remedy." Van

Dunk, 210 N.J. at 473.

      An intentional wrong requires more than a violation of safety regulations

or failure to follow good safety practices. The alleged wrongful act must be


                                                                         A-2761-17T3
                                         8
accompanied by something more, typically deception, affirmative acts that

defeat safety devices, or a willful failure to remedy past violations. See id. at

470 (holding a "finding of a willful violation under OSHA is not dispositive of

the issue of whether the employer . . . committed an intentional wrong");

Laidlow, 170 N.J. at 616 (noting the "mere toleration of workplace hazards 'will

come up short' of substantial certainty") (quoting Millison, 101 N.J. at 179).

Absent such egregious conduct, the employee is limited to remedies under the

Act.

       Plaintiff contends she has satisfied the conduct prong through her proofs

regarding the congestion in Repack, the insufficient forklift training, and the

multiple forklift accidents.   These allegations, however, are insufficient to

establish the conduct prong.     Defendant's business is freezing and packing

frozen vegetables for resale. The operations require forklifts to move its product

from the warehouse to other areas. Plaintiff was aware of the congested Repack

area and the continuous forklift traffic. In addition to being trained on forklift

safety during her employment with defendant, plaintiff was a certified forklift

driver herself, and had operated forklifts for several years at prior jobs.

       Plaintiff has not demonstrated an affirmative act that made the workplace

significantly less safe for its employees. Defendant did not intentionally conceal


                                                                              A-2761-17T3
                                         9
information from its employees or remove a safety device from a piece of

machinery — acts our courts have deemed "intentional wrongs." See Millison,

101 N.J. at 182; Crippen v. Central Jersey Concrete Pipe Co., 176 N.J. 397, 410-

11 (2003).

      Plaintiff further contends defendant intentionally deceived OSHA prior to

her accident and during their unannounced visit after her injury. The year before

plaintiff's accident, defendant received a citation from OSHA for not evaluating

the forklift drivers every three years and failing to re-train the drivers after an

accident.    In its report, the OSHA investigator noted that defendant was

forthcoming with its investigation and showed a willingness "to make [the]

corrections by the date(s) specified." Defendant did implement the required

changes.

      Plaintiff alleges that when OSHA visited the site after her accident,

defendant's representatives told OSHA there had only been one or two prior

forklift accidents. However, the OSHA report contradicts plaintiff's assertions.

It states that the investigator reviewed defendant's "injury and illness history"

and determined "[t]here had been several employee injuries involving fork

trucks in recent years."       The report further indicated that defendant's

management was cooperative during the investigation. Plaintiff's contentions


                                                                           A-2761-17T3
                                       10
that defendant was deceitful to OSHA about any dangers in its workplace are

unsupported by the record.

      Even viewing the facts in the light most favorable to plaintiff, we cannot

find that defendant knowingly exposed her to a virtual certainty of harm.

Therefore, she has not established the high threshold of the conduct prong

required to sustain an intentional wrong to avoid the workers' compensation bar.

      Because plaintiff has not established the conduct prong, we need not

address the context prong. See Van Dunk, 210 N.J. at 473. We note again that

our courts have consistently implemented a "high threshold for the contextual

analysis," id. at 474, requiring intentional or deceptive conduct that "violates the

social contract so thoroughly" that the Legislature could not have intended to

insulate such despicable behavior. See Laidlow, 170 N.J. at 622; see also

Millison, 101 N.J. at 182; Mull, 176 N.J. at 392-93; Crippen 176 N.J.at 411.

Plaintiff cannot meet that standard. As the Supreme Court has stated, a forklift

accident is simply "a fact of life of industrial employment," which was clearly

contemplated to fall within the purview of the Act. Van Dunk, 210 N.J. at 461.

      Plaintiff has not established defendant committed an intentional wrong,

and, therefore, she is limited to the remedies available under the Act.

      Affirmed.


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                                        11
