NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3110-19
ESTATE OF OSCAR PORTILLO by the Administrator Ad Prosequendum JUAN CARLOS MONTOYA,
Plaintiff-Appellant,
v.
BEDNAR LANDSCAPING SERVICES, INC., CHRISTOPHER LIBERATORE, PETER LIBERATORE, and KEITH BEDNAR,
Defendants-Respondents. _________________________________
ESTATE OF SELVIN ZELAYA by the Administratrix Ad Prosequendum MARIA MARTA RIVERA RODRIGUEZ and MARIA MARTA RIVERA RODRIGUEZ, INDIVIDUALLY,
Plaintiff-Appellants,
BEDNAR LANDSCAPING SERVICES, INC., CHRISTOPHER LIBERATORE, PETER LIBERATORE, and KEITH BEDNAR,
Argued May 3, 2021 – Decided July 8, 2021
Before Judges Sabatino, Currier and DeAlmeida (Judge Sabatino concurring).
On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket Nos. L-1770-18 and No. L-1787-18.
Evan M. Padilla argued the cause for appellant Estate of Portillo (Zajac & Arias, LLC, attorneys; Evan M. Padilla, of counsel and on the joint briefs).
David M. Fried argued the cause for appellant Estate of Zelaya (Blume, Forte, Fried, Zerres & Molinari, PC, attorneys; David M. Fried, of counsel and on the joint briefs; Brian E. Mahoney, on the joint briefs).
Aldo J. Russo argued the cause for respondents (Lamb Kretzer, LLC, attorneys for respondent Bednar Landscaping Services, Inc.; Methfessel & Werbel, attorneys for respondents Christopher Liberatore, Peter Liberatore and Keith Bednar; Robert D. Kretzer and Paul J. Endler, on the joint brief).
PER CURIAM
A-3110-19 2 In these consolidated wrongful death actions, the Estates of Oscar Portillo
and Selvin Zelaya 1 instituted suit against their decedents' employer after
decedents were killed when a trench collapsed on top of them while installi ng a
drainage system. Because plaintiffs have not demonstrated an intentional wrong
required to vault the statutory bar to a third-party action under the Workers'
Compensation Act (WCA), N.J.S.A. 34:15-8, we affirm the Law Division's grant
of summary judgment to defendants.2
The owners of a private residence hired defendants to install a French
drain along the exterior perimeter of their home. Keith Bednar (Bednar)
designed the project. He testified during his deposition that he learned how to
perform drainage work by observing others and through his years of hands-on
experience.
Zelaya was the foreman on the job site and supervised the other
employees. He had worked on three or four previous drainage projects requiring
the excavation of a trench that was deeper than five feet. On this job, Bednar
1 We refer to the Estates and decedents collectively as "plaintiffs." 2 Defendant Keith Bednar founded Bednar Landscape Services, Inc. (improperly pled as Bednar Landscaping) more than twenty years ago and is the company's president. Peter and Christopher Liberatore serve as the company's vice president and secretary respectively. We refer to them collectively as defendants. A-3110-19 3 instructed Zelaya to dig a nine-foot-deep, 300-foot-long trench, approximately
two to three feet in width.
Bednar estimated his business had excavated trenches deeper than five
feet five to eight times, stating "[i]t wasn't something we did every day."
Defendants had never utilized a trench box, wood shoring, or any other method
to secure the sides of the trenches on any of the prior projects or on this job.3
Bednar testified he had gone into unprotected trenches that were deeper than his
height "[t]en times" in his lifetime. He said it never occurred to him that the
trench could collapse or cause injury to him or others working in the trench. He
also stated he never thought about using a trench box.
Bednar testified that neither he nor any other officer or employee of the
company had taken an Occupational Safety and Health Administration (OSHA)
safety course before decedents' accident. Following these events, all of the
foremen took safety courses.
3 Bednar did recall the business using a trench box many years earlier when an employee was digging a hole in very sandy soil to fill with gravel. The employee informed Bednar that he could only dig a certain amount before the sand would start to cave in at the bottom and collect around his ankles. The employee recommended the use of a "trench thing[] . . . ." Bednar was not present at the site, did not know where the employee obtained the trench box, and did not see it in use. A-3110-19 4 Decedents' accident occurred during the second week of work on the job.
Zelaya operated the excavating machine used to dig the trench. When the
desired depth was reached, he and other employees descended into the trench
with hand tools and laid down pipe and gravel. Because there had been some
rain, pumps evacuated groundwater from the trench while the workers installed
the pipe.
The French drain was installed in sections. Once the twelve-foot drainage
pipe was set in place, the open trench was backfilled, and an adjoining section
would be dug.
Bednar stated he went to the job site only when Zelaya asked him to come.
He recalled being on site three days before the day of the accident and observing
his employees in the nine-foot-deep trench. Christopher Liberatore went to the
job site approximately five times solely to deliver gravel. Peter Liberatore
handled all of the office work.
On October 1, 2014, at approximately 3:00 p.m., Portillo and a co-worker
were working in the trench when it collapsed on Portillo.4 After Zelaya climbed
into the trench to assist Portillo, the trench collapsed a second time and Zelaya
4 The co-worker in the trench with Portillo estimated the trench was fourteen feet deep in the area where they were working. A-3110-19 5 was buried in the falling soil. Portillo and Zelaya were pronounced dead at the
scene.
In its investigation following the accident, OSHA identified multiple
violations of safety standards. Most pertinent, OSHA issued a willful violation
citation because "[w]orkers installing a French drain system in a trench were
exposed to crushing injuries in the [nine] to [thirteen] foot deep trench which
was not adequately sloped or protected by shields or shoring." 29 C.F.R.
§1926.652(a)(1) requires an employer to protect its workers from a trench
collapse by using sloping, shoring, or trench boxes in a trench deeper than five
feet.
The Morris County Prosecutor's Office also conducted an investigation.
State v. Bednar Landscape Servs., No. A-4676-17 (App. Div. July 3, 2019) (slip
op. at 2). The corporate principals were diverted to pre-trial intervention. Id. at
1. On January 18, 2018, Bednar Landscape waived indictment and pled guilty
under an accusation charging one count of fourth-degree causing or risking
widespread injury or damage, N.J.S.A. 2C:17-2(d)(1). Ibid. The factual basis
for the corporate plea was provided in a resolution signed by Keith Bednar, as
president. Ibid. The resolution was provided to the court by Bednar Landscape's
agent and counsel.
A-3110-19 6 The corporate entity was sentenced to two years' probation5 and ordered
to pay $50,000 in restitution to decedents' families. Ibid. Bednar Landscape
also paid $77,000 in fines pursuant to its settlement agreement with OSHA .
Ibid.
Bednar Landscape requested a civil reservation under Rule 3:9-2. The
State did not object. However, the Estate of Portillo intervened and objected to
the entry of a civil reservation. Ibid.
After hearing the parties' arguments, the trial court found Bednar
Landscape had demonstrated good cause for the entry of a civil reservation. Id.
at 1. We affirmed, finding it had shown good cause because the civil reservation
was necessary to protect the corporation from financial ruin. Id. at 2. Relying
on State v. McIntyre-Caulfield,6 we noted "good cause may be shown to grant a
reservation where the civil consequences of a plea may wreak devastating
financial havoc on a defendant." Ibid. (internal quotation marks and citations
omitted). We stated further that here, where the insurance carrier might disclaim
coverage without a civil reservation in place, Bednar Landscape had
5 Probation monitored the required payments. 6 455 N.J. Super. 1 (App. Div. 2018). A-3110-19 7 demonstrated the "existence of a good faith fear of financial havoc . . . ." Ibid.
(citing McIntyre-Caulfield, 455 N.J. Super. at 9-10).
After the close of discovery, Bednar Landscape moved for summary
judgment, contending N.J.S.A. 34:15-8 barred plaintiffs' third-party claims
because plaintiffs were collecting workers' compensation benefits and
defendants had not committed an "intentional wrong."
In an extensive, well-reasoned written decision and accompanying order,
the motion judge granted summary judgment on March 9, 2020. After reviewing
the applicable statute and caselaw, the judge found that "a jury simply could not
conclude that [d]efendant[s] [were] 'substantially certain' that [their] working
conditions would cause great bodily harm or injury to one of [their] employees,
which is a prerequisite to avoiding the exclusivity bar under the [WCA]."
Although the judge determined plaintiffs had presented "a very
compelling case for recklessness or gross negligence", they could not
demonstrate an "intentional wrong" or that defendants were "'substantially
certain' of the harm that would result from allowing decedents to enter the trench
without safeguards."
The motion judge also considered and rejected plaintiffs' argument that
the corporate guilty plea sufficed to meet the "substantial certainty" test. The
A-3110-19 8 court noted that neither corporate principal testified, and the factual basis
referred to OSHA's finding of "reckless" conduct. The court stated: "'Reckless'
is not enough to meet the 'substantial certainty' standard."
Following the grant of summary judgment to Bednar Landscape, the
parties executed a consent order granting summary judgment to the individual
defendants.
We review the grant of summary judgment de novo, applying the same
legal standard as the trial court. Green v. Monmouth Univ., 237 N.J. 516, 529
(2019) (citation omitted). Therefore, we 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 v. Guardian Life Ins. Co. of Am., 142 N.J.
520, 523 (1995).
"If there is no genuine issue of material fact, we must then 'decide whether
the trial court correctly interpreted the law.'" DepoLink Ct. Reporting & Litig.
Support Servs. v. Rochman, 430 N.J. Super. 325, 333 (App. Div. 2013) (citations
omitted). We review issues of law de novo and accord no deference to the trial
A-3110-19 9 judge's conclusions on issues of law. Nicholas v. Mynster, 213 N.J. 463, 478
(2013).
On appeal, plaintiffs argue the trial court erred in granting summary
judgment. They assert the "record was rife with material and substantial
disputes of fact, including credibility issues" which should have been reserved
for consideration by a jury. In addition, plaintiffs contend they satisfied the
intentional wrong standard required to exempt their claims from the WCA bar ,
permitting them to pursue common law tort claims.
The WCA is a "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." Millison v. E.I. du Pont de Nemours & Co.,
101 N.J. 161, 174 (1985). "When, by either express or implied agreement, the
parties have accepted the provisions of the [WCA], the agreement operates as
an employee's surrender of other forms of remedies." Van Dunk v. Reckson
Assocs. Realty Corp., 210 N.J. 449, 459 (2012) (citing N.J.S.A. 34:15-8).
However, an employee can overcome the statutory bar if he or she can satisfy
the exception for an intentional wrong. N.J.S.A. 34:15-8 provides:
If an injury or death is compensable under this article, a person shall not be liable to anyone at common law or
A-3110-19 10 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.
In Millison, our Supreme Court created the current "intentional wrong"
framework and implemented a "substantial certainty" test. 101 N.J. at 178. The
test requires an analysis of a "conduct" and a "context" prong. Id. at 178-79.
The Court instructed:
Courts must examine not only the conduct of the employer, but also the context in which that conduct takes place: may the resulting injury or disease, and the circumstances in which it is inflicted on the worker, fairly be viewed as a fact of life of industrial employment, or is it rather plainly beyond anything the legislature could have contemplated as entitling the employee to recover only under the [WCA]?
[Id. at 179 (emphasis omitted).]
To satisfy the intentional wrong exception, "a plaintiff must first establish
the employer knew that its actions were substantially certain to result in injury
or death to the employee." Hocutt v. Minda Supply Co., 464 N.J. Super. 361,
375 (App. Div. 2020). If that prong is met, "[t]he plaintiff must further show
that the resulting injury and the circumstances of its infliction were more than a
fact of life of industrial employment and plainly beyond anything the Legislature
intended the WCA to immunize." Ibid.
A-3110-19 11 The Millison Court directed that "the dividing line between negligent or
reckless conduct on the one hand and intentional wrong on the other must be
drawn with caution, so that the statutory framework of the [WCA] is not
circumvented simply because a known risk later blossoms into reality. We must
demand a virtual certainty." 101 N.J. at 178.
In the wake of Millison, our Supreme Court has considered additional fact
scenarios and provided guidance to distinguish negligent or reckless culpability
from intentional wrong.
In Laidlow v. Hariton Mach. Co., Inc., the plaintiff employee severely
injured his hand while operating an unguarded rolling mill. 170 N.J. 602, 606 -
07 (2002). The employer regularly removed the safety guard on the mill when
its employees used the machine but replaced it prior to OSHA inspections. Id.
at 608. The plaintiff and a co-worker reported two incidents to their supervisor
when their hands were almost pulled into the machine and requested the
restoration of the guard. Ibid. Their concerns and requests were ignored. Ibid.
The Court found that the "conduct involving the intentional, and deceptively
timed, engaging and disengaging of safety equipment . . . [satisfied the] conduct
and context prongs . . . ." Van Dunk, 210 N.J. at 462 (citing Laidlow, 170 N.J.
at 606-07).
A-3110-19 12 In Crippen v. Cent. Jersey Concrete Pipe Co., the plaintiff employee
suffocated and died after falling into a seventeen-foot-deep sand hopper. 176
N.J. 397, 399 (2003). The employer had been cited by OSHA for numerous
serious violations that were not corrected prior to the plaintiff's accident. Id. at
401-03. 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 determined that the plaintiff had satisfied the context
prong. Id. at 411. The employer not only failed to remedy the safety hazards,
contrary to an OSHA order, but also deceived OSHA into believing the
violations had been corrected. Ibid. The Court noted that the defendant
"'effectively precluded OSHA from carrying out its mandate to protect the life
and health of [defendant's] workers.'" Ibid. (alteration in original) (quoting
Laidlow, 170 N.J. at 621). The Court concluded the Legislature "never intended
such conduct to constitute a part of everyday industrial life" nor would the
Legislature expect this conduct to fall within the workers' compensation bar.
A-3110-19 13 In Mull v. Zeta Consumer Prods., the Court considered a situation where
the employer was aware of prior injuries and ignored citations for safety
violations. 176 N.J. 385, 388 (2003). The Court concluded the plaintiff satisfied
the conduct prong of the Millison test because OSHA had cited defendant for
several safety violations, the defendant had removed multiple safety devices
from the machine, another employee had sustained an injury operating the same
equipment, and the defendant was aware employees repeatedly complained
about safety concerns. Id. at 392.
The Court also found the context prong was satisfied, noting "[t]he
Legislature would not have considered the removal of the [machine'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 392-93 (quoting Laidlow, 170 N.J. at 622).
Van Dunk presented some facts similar to the case before us. There, the
Court addressed the intentional wrong exception where an employee was injured
in a collapsed unprotected trench. 210 N.J. at 453-54. The plaintiff volunteered
to go into a twenty-foot-deep trench to flatten out filter fabric. Id. at 454. The
supervisor instructed him not to do so because of the risk the trench might
A-3110-19 14 collapse. Ibid. Nonetheless, as problems persisted, the supervisor in a moment
of frustration told the plaintiff to enter the trench and fix the fabric. Ibid. The
trench collapsed on top of plaintiff, causing severe injuries. Id. at 454-55.
During the OSHA investigation, the supervisor acknowledged he was
aware of OSHA trench safety requirements and did not follow those standards.
Id. at 455. That admission led OSHA to cite the company for a "willful"
violation of the safety standards. Ibid. However, the Court found that
classification of the OSHA violation as willful did not necessarily mean the
conduct was an intentional wrong for purposes of the WCA. Id. at 468.
In determining plaintiff had not satisfied the conduct prong, the Court
compared the nature of the trench collapse with the "more egregious
circumstances" of prior cases. Id. at 471. The Court explained:
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, machine, or, in the case of Millison, the employee's medical condition, knowledge of prior injury or accidents, and previous complaints from employees.
[Ibid.]
A-3110-19 15 The Court noted that the plaintiff's failure to satisfy the conduct prong was
sufficient to bar the lawsuit. Nevertheless, the Court considered the context
prong, concluding that it also had not been established. The Court explained:
The separate consideration required by the context prong acts as an additional check against overcoming the statutory bar to a common-law tort action. It was added to the analysis to reinforce the strong legislative preference for the workers' compensation remedy. That preference is overcome only when it separately can be shown to the court, as the gatekeeper policing the [WCA]'s exclusivity requirement, that as a matter of law an employee's injury and the circumstances in which the injury is inflicted are 'plainly beyond anything the legislature could have contemplated as entitling the employee to recover only under the [WCA].' In Millison, that threshold was only met by virtue of the physicians' intentional deception about the true status of employees' medical conditions when returning the employees to the hazardous worksite, not by the dangers present in the workplace itself due to the known presence of asbestos.
[Id. at 473-74 (emphasis omitted) (citations omitted).]
The Court then applied those principles to the facts presented in the case
before it, noting:
[O]ne cannot reasonably conclude that the type of mistaken judgment by the employer and ensuing employee accident that occurred on this construction site was so far outside the bounds of industrial life as never to be contemplated for inclusion in the [WCA]'s exclusivity bar. While a single egregiously wrong act by an employer might, in the proper circumstances,
A-3110-19 16 satisfy the intentional-wrong standard, not every intentional, or indeed willful violation of OSHA safety requirements constitutes a wrong that is 'plainly beyond anything the legislature could have contemplated as entitling the employee to recover only under the [WCA].'
[Id. at 474 (quoting Millison, 101 N.J. at 179) (emphasis omitted).]
As stated, plaintiffs here must first establish defendants knew their actions
were substantially certain to result in injury or death to decedents. Hocutt, 464
N.J. Super. at 376. Plaintiffs assert on appeal that defendants' conduct is similar
to that of the employers in Crippen and Laidlow and they have demonstrated
defendants had a substantial certainty of a deep trench collapse and a substantial
certainty of death or injury from such a collapse. We disagree.
Here, defendants had excavated five to eight trenches deeper than five feet
throughout the course of the company's twenty-year history. Their business
rarely engaged in the excavation of trenches, while in Laidlow, the manufacturer
operated the unguarded machine frequently and had engaged in its deceptive
practices for over twelve years. 170 N.J. at 608.
In Crippen and Laidlow, the employers knew of the OSHA safety
requirements and actively chose to ignore them. In Crippen, OSHA had cited
the employer for safety violations. The employer failed to correct those
A-3110-19 17 violations prior to the plaintiff's accident. Here, defendants testified they were
unaware of OSHA's safety regulations concerning trenches. Their previous
trench sites had not been inspected by OSHA. Nor had OSHA ever issued any
citations to defendants for any violations of its safety regulations.
Unlike in Laidlow, Crippen, and Mull, plaintiffs cannot demonstrate
defendants had knowledge regarding the unsafe trenching practice and a
substantial certainty of the trench's collapse and foreseeable injury or death to
its workers. To the contrary, defendants had previously undertaken projects
where a deep trench was excavated without the required shoring or support and
completed those projects without safety issues or incidents. Bednar testified he
had gone into deep unprotected trenches multiple times in the past and never
considered whether the trench could collapse. The record does not support
plaintiffs' assertion that defendants knew their actions were substantially certain
to cause injury or death.
Plaintiffs turn to another avenue to establish the conduct prong. They
assert the corporate guilty plea demonstrates defendants knew their actions were
substantially certain to cause injury or death to an employee. We again disagree.
Bednar Landscape pled guilty to N.J.S.A. 2C: 17-2(d)(1), which states:
"A person who knowingly or recklessly fails to take reasonable measures to
A-3110-19 18 prevent or mitigate widespread injury or damage commits a crime of the fourth
degree, if: [h]e knows that he is under an official, contractual or other legal duty
to take such measures . . . ." The judge read the factual basis for the guilty plea,
which was contained in a resolution executed by Keith Bednar on behalf of the
company as required under Rule 3:7-10(c). The resolution stated, in pertinent
part:
On or about October 1, 2014, Bednar Landscape was performing work at a customer's home . . . by installing a French drainage system around the customer's house. The French drains were being installed against the building's foundation in a trench . . . Bednar Landscape was excavating. The trench was supported on one side by the building's foundation. However the other wall of the trench was neither sloped nor protected by shields or shoring for the depth of trench as required by a specific OSHA standard.
As a result of the reckless failure to protect the job site [in accordance] with the OSHA standards, there was a trench cave-in which caused two workers . . . to be trapped and to perish in the cave-in before they could be rescued by emergency personnel or by other co- workers who were also working at that location.
As stated, the trial judge granted a civil reservation; the order was affirmed by
this court.
Under Rule 3:9-2, a court may allow a criminal defendant to take a civil
reservation to prevent the guilty plea from being used against him in a
A-3110-19 19 subsequent civil case. We have explained that the "purpose of the rule is to
avoid an unnecessary criminal trial of a defendant who fears that a civil claimant
will later use his plea of guilty as a devastating admission of civil liability."
Stone v. Police Dep't of Borough of Keyport, 191 N.J. Super. 554, 558 (App.
Div. 1983).
Plaintiffs contend there are inconsistencies between the deposition
testimony of the individual defendants and the factual basis of the corporate plea
that create issues of fact which undermine the motion judge's conclusion that
defendants did not have substantial certainty of the dangers posed by the
unguarded trench. And plaintiffs assert the civil reservation does not prevent
them from using those inconsistencies to impeach defendants' knowledge
regarding OSHA standards.
Specifically, plaintiffs highlight the contradiction between the individual
defendants' professed lack of knowledge regarding the necessity of shoring a
deep trench and the corporation's plea to an offense which states that the person
"knows he is under an official, contractual or other legal duty to take" reasonable
measures to prevent or mitigate injury or damage. N.J.S.A. 2C:17-2(d)(1).
We agree that, under certain circumstances, testimony given during an
allocution may be used despite the entry of a civil reservation. See Stone, 191
A-3110-19 20 N.J. Super. at 554 (holding the protection of R. 3:9-2 is waived where a plaintiff
offers his own testimony to support a civil claim and that testimony is
inconsistent with the testimony given to support his guilty plea to a criminal
offense). However, those circumstances are not present here.
Under Stone, allocution testimony presented during a plea hearing may be
used to impeach that person's testimony in a civil case if there are
inconsistencies, even if there is a civil reservation. However, here there are no
inconsistencies. None of the defendants testified during the plea hearing. The
factual basis accepted for the plea referred to the corporate entity's "reckless
failure to protect the job site in accordance with OSHA standards."
Defendants did not testify they knew there was a substantial certainty of
injury from the lack of a secured trench. The corporate entity only pled guilty
to an offense that included a "knowing" element. The civil reservation protects
the disclosure of the plea itself, and the elements of the offense to which
defendants have agreed to accept guilt. Only if there were contradictions
between the allocution testimony and any testimony by the same individual in a
civil case can the person be impeached with the testimony from the plea hearing.
Even if that occurred, the elements of the offense and the plea itself would not
A-3110-19 21 be disclosed. The plea agreement here does not provide the "substantial
certainty" required under the conduct prong.
Because the motion judge found plaintiffs could not satisfy the conduct
prong, he did not analyze the context prong. As we have reached the same
conclusion, we only briefly address plaintiffs' arguments.
Plaintiffs contend the circumstances here were more than "a fact of
industrial life of employment . . . ." They also urge this court to reject
defendants' proffered defense of "willful ignorance."
Millison and its progeny have "set a high threshold for the context[]
analysis." Van Dunk, 210 N.J. at 474. In Van Dunk, the Court found that the
trench cave-in at the construction site was not so far outside the bounds of
industrial life as to never be contemplated for inclusion in the WCA. Ibid. It
did so despite the employer knowing about OSHA regulations and the
requirement that trench boxes be used in trenches deeper than five feet. Id. at
455. In addition, the employer was found to have willfully violated OSHA
standards. Ibid.
Like Van Dunk, this tragic case is not similar to the industrial settings of
Laidlow, Crippen, and Mull, where the employers were aware of OSHA safety
requirements, had been reprimanded by OSHA in the past, deliberately deceived
A-3110-19 22 OSHA into believing they had resolved the safety issues, and ignored prior
injuries and complaints from employees. Plaintiffs have not vaulted the high
bar required by our Court to satisfy the context prong. We decline to establish
a new standard of analysis – whether defendants "willfully ignored" OSHA
safety regulations – to satisfy the prong.
For the reasons stated, we are satisfied there were no material disputed
issues of fact to preclude the entry of summary judgment and the motion judge
properly applied the facts to the applicable law.
Affirmed.
A-3110-19 23 SABATINO, P.J.A.D., concurring.
After an unstable trench at a job site violating OSHA safety standards
caved in and crushed to death two laborers, the State of New Jersey brought
criminal charges against the decedents' employer, Bednar Landscaping Services,
Inc. ("the Company") and at least two of its principals, Keith Bednar and
Christopher Liberatore. 1
The two principals negotiated the diversion of the individual charges
against them under the pre-trial intervention program. The Company was
charged in an Accusation under N.J.S.A. 2C:17-2(d)(1), which makes it a fourth-
degree criminal offense to "knowingly or recklessly fail[] to take reasonable
measures to prevent or mitigate widespread injury or damage," if the defendant
"knows that [it] is under an official, contractual or other legal duty to take such
measures." (Emphasis added).
With the approval of a Criminal Part judge, the Company pled guilty to
the Accusation. At the plea hearing, no fact witness or principal from the
Company testified. Instead, the factual basis for the Company's guilty plea was
memorialized in the following two-paragraph document presented to the court
pursuant to Rule 3:7-10(c) by the Company's criminal defense attorney:
1 It is unclear from our present record if L. Peter Liberatore was individually named in the criminal charges. BEDNAR LANDSCAPING SERVICES, INC. CORPORATE FACTUAL BASIS FOR GUILTY PLEA TO N.J.S.A:2C 17-2d(1) ACCUSATION NO. 18-01-00064-A
On or about October 1, 2014, Bednar Landscaping was performing work at a customer's home on Rockaway Valley Road, Boonton Township, Morris County, New Jersey, by installing a French drainage system around the customer's house. The French drains were being installed against the building's foundation in a trench that Bednar Landscaping was excavating. The trench was supported on one side by the building's foundation. However, the other wall of the trench was neither sloped nor protected by shields or shoring for the depth of trench as required by OSHA Standards 29[]CFR[§]1926.652(b)(c).
As a result of the reckless failure to protect the job site in accordance with the OSHA standards, there was a trench cave in which caused two workers, Selvin [Zelaya] and Oscar Portillo to be trapped and to perish in the cave in before they could be rescued by emergency personnel or by other co-workers who were also working at that location. Throughout the project there were in excess of five Bednar employees at the job site.
[(Emphasis added).]
The terms of the plea agreement included a civil reservation pursuant to
Rule 3:9-2 disallowing its admission as evidence in related civil proceedings.
The prosecutor took no position on that request for a civil reservation, but the
Estate of Mr. Portillo intervened in opposition. The intervenor arg ued the
A-3110-19 2 defendant had not shown "good cause" for the reservation. The Criminal Part
judge rejected that argument and approved the terms of the plea. The judge
imposed on the Company a sentence of two years of probation, and the payment
of $50,000 in restitution to the decedents' families.
The intervenor appealed the civil reservation. In July 2019 a panel of this
court issued a per curiam opinion affirming the Criminal Part judge's decision.
Among other things, the opinion upheld the Criminal judge's reliance on the
Company's contention that "its insurance carriers would be more likely to
indemnify [it for claims by the estates] if [the Company] obtained a civil
reservation."
In the present civil action, the estates have sought money damages for
wrongful death and survivorship, arising out of what they characterize in their
joint complaint as "intentional, willful, knowing and deliberate actions, with
substantial knowledge and/or virtual certainty of the injury or death of the
[decedents]." (Emphasis added).
Defendants have disavowed having such knowledge. For instance, in the
Company's Statement of Uncontested Material Facts pursuant to Rule 4:46-2, it
asserts that prior to this fatal accident, "Mr. Bednar was unaware of the risks of
a cave-in of a trench," and "was not aware of the dangers inherent in working in
A-3110-19 3 a trench without shoring or a trench box." The defense also maintains that Peter
Liberatore "was unaware of safety requirements pertaining to trenches before
October 1, 2014" and Christopher Liberatore "did not know of any requirement
that trench boxes be used nor of any OSHA regulations," and had "no knowledge
on [sic] any increased risk of cave-in after 'rain.'"
The apparent dissonance between the defendants' lack-of-knowledge
assertions in this civil case—as contrasted with the Company's plea of guilty to
a criminal accusation charging it under N.J.S.A. 2C:17-2(d)(1) of violating a
known legal duty to take precautionary safety measures—is, to say the least,
troubling. Either the Company and its officials knew the trench was unsafe, or
they didn't.
This seeming inconsistency raises the question of whether the civil
reservation would bar the use of the guilty plea and the associated factual basis
as evidence to impeach defendants' professions of lack of knowledge in this
case. In Stone v. Police Dep't of Borough of Keyport, 191 N.J. Super. 554, 558
(App. Div. 1983), we held that, although civil reservations have benefits in
helping to resolve criminal matters, their evidentiary bars may be lifted to
impeach a party in the civil case who offers testimony inconsistent with th e
allocution or factual basis underlying the criminal plea. Here, the written factual
A-3110-19 4 basis admits to "reckless" conduct, but is silent about whether the Company
possessed the knowledge required to support guilt of a knowing offense under
the statute.
The civil judge who granted summary judgment to defendants assumed
that the civil reservation would not bar the criminal plea from consideration for
purposes of the motion analysis. However, the judge concluded the criminal
plea was inconsequential because the plea was based on a factual basis admitting
to reckless conduct. That begs the question, however, if the plea necessarily had
to include at least an implicit admission under subsection (1) of N.J.S.A. 2C:17 -
2(d) requiring that the defendant "knows" that it was under a legal duty to take
precautionary measures. The guilty plea was not predicated on subsection (2),
i.e., that defendant "did or assented to the act causing or threatening the injury
or damage." Indeed, the heading of the factual basis cites subsection (1), not
(2).
We need not resolve this thorny question of impeachment because
defendants' knowledge or lack of it turns out to be non-dispositive. As my
colleagues explain in the majority opinion, the Supreme Court has not
recognized a theory of "willful ignorance" as a basis to overcome N.J.S.A.
34:15-8's bar to a civil action against an employer with workers' compensation
A-3110-19 5 immunity. So if, as they now assert, defendants did not know about the need for
a trench box, their ignorance is non-actionable.
Alternatively, even if the Company and its officials knew the absence of
a trench box was unsafe, their conduct, which the motion judge fairly
characterized as bespeaking "recklessness or gross negligence," does not appear
to be materially worse than the employer's conduct in Van Dunk v. Reckson
Assocs. Realty Corp., 210 N.J. 449, 455 (2012). The supervisor in Van Dunk
admitted in the post-accident investigation of the cave-in fatality that he had
been aware of the trench box safety requirement, ibid., but despite that
admission of knowledge, the Court agreed with this court that the conduct did
not rise to the level of an actionable intentional wrong. Id. at 470-71. Also, in
the present case, as the majority points out, there isn't clear proof defendants
were "substantially certain" the lack of a trench box would produce injury or
death.
Having expressed my concerns, I join in the majority's decision to affirm
summary judgment. Despite the avoidable nature of this double tragedy, the law
enacted by our Legislature as construed by our Supreme Court limits these
survivors to workers' compensation death benefits and disallows a jury award
for additional recovery.
A-3110-19 6