Tomeo v. Thomas Whitesell Construction Co.

823 A.2d 769, 176 N.J. 366, 2003 N.J. LEXIS 560

• Court: Supreme Court of New Jersey
• Decided: May 22, 2003
• Status: Published

Opinions

The opinion of the Court was delivered by

COLEMAN, J.

This appeal involves a common-law tort action filed by an employee against his employer based on an accident that occurred while using a snow blower. The complaint alleges that the employer deactivated a safety lever on a snow blower used to clear snow from the walkways at the employer’s premises and that the employer negligently trained plaintiff, Joseph Torneo, in the use of the snow blower. The issúe raised in this appeal is whether the alleged conduct of the employer satisfies the “intentional wrong” requirement of the Workers’ Compensation Act, N.J.S.A. 34:15-8. The trial court denied summary judgment to the employer and a jury found in favor of plaintiff. The Appellate Division reversed, finding that the trial court erred in not granting summary judgment for defendant. We agree and affirm.

I.

Plaintiff was hired by defendant in 1988 to install sprinkler systems in commercial buildings. Whenever there was a snowstorm plaintiff and other employees were assigned to assist with snow removal from the employer’s premises to avoid loss of pay. Consistent with that past practice, when plaintiff reported to work on January 9, 1996, Timothy Cahill, Vice President for Construction, assigned plaintiff and others to assist with snow removal. Although plaintiff had previously operated a snow blower for his employer at a different location, Cahill instructed Ken Williamson to show plaintiff how to use one of two identical snow blowers. The snow blower was a Toro Model 1132. Although the evidence was contradictory concerning the extent and quality of the training Williamson provided plaintiff, plaintiff concedes there was some training. Plaintiff testified that Williamson removed the snow blower from his truck and gave him “a short version of how to start the machine,” consuming approximately five to ten minutes. Before using the snow blower for snow removal, plaintiff used a shovel to clear snow from some steps. • Plaintiff testified that after shoveling the steps, he used the snow blower at another building located about 500 yards across the street from where he had shoveled snow. He “turn[ed] the snow blower[ ]on when [he] got across the street” and “started to use it.”

The Toro Model 1132 snow blower has a two-stage system. There is an intake propeller that grinds snow into the machine as it is self-propelled forward. The intake propeller delivers the snow to an ejection propeller that ejects the snow out through a chute. The two propellers work in tandem. The machine is equipped with a gear shift lever on one side of what is described as a handle-bar, like on a bicycle. On the other side is a safety lever that activates the propellers when squeezed and deactivates them when released. At the time of the accident, the safety lever had been taped in the operational position with electrical tape. Plaintiff, Cahill, and Williamson all denied taping the lever.

As plaintiff used the snow blower, some wet snow clogged the chute on two or three separate occasions. Each time plaintiff would use his hand to push the snow down in the chute and the propellers would then eject the snow through the chute. The last time plaintiff attempted that maneuver, the propeller that ejects the snow through the chute caught his hand, causing injuries to his fingers. Because the lever had been taped, the propellers continued to operate. There was no evidence from an expert or otherwise that taping the lever affected the time required to complete the snow removal.

After denial of defendant’s motion for summary judgment based on the immunity provided in N.J.S.A 34:15-8, bifurcated trials were conducted. At the conclusion of plaintiffs evidence presented in the liability trial, and after defendant rested its case, the trial court again denied defendant’s motions to dismiss based on N.J.S.A 34:15-8. The jury found for plaintiff in the liability trial; a separate jury awarded plaintiff $160,000 in damages. The Appellate Division reversed, concluding that summary judgment should have been granted to defendant.

We granted plaintiffs petition for certification, 174 N.J. 544, 810 A.2d 64 (2002), and now affirm.

II.

Plaintiff argues that defendant intentionally disabled the safety lever on the snow blower to remove the snow more quickly so that the company could resume its normal business of installing sprinkler systems in commercial buildings. Defendant contends that plaintiff failed to prove that defendant taped the safety lever and that, in any event, the taping was not done for the purpose of speeding up production or creating “a substantial or virtual certainty that somebody would be injured” when using the snow blower. Defendant asserts that plaintiff failed to satisfy the “intentional wrong” standard because: (1) there was no expert testimony to bolster plaintiffs ease; (2) there was no evidence of any prior, similar injuries sustained by defendant’s employees; (3) there was no evidence that defendant forced plaintiff to hurry on the day of the incident; and (4) there was no evidence that any of defendant’s representatives were aware that the safety lever had been disabled.

Procedurally, the standard of review controlling this case involves the summary judgment rule, R. 4:46-2, directed verdicts at the end of plaintiffs case, R. 4:37-2(b), directed verdicts at the end of all the evidence, R. 4:40-1, and judgments notwithstanding the verdict, R. 4:40-2.

The only distinction between 1) a directed verdict at the end of plaintiffs case pursuant to Rule 4:37 — 2(b), 2) a directed verdict pursuant to Rule 4:40-1 after all the evidence has been presented, 3) a judgment notwithstanding the verdict pursuant to Rule 4:40-2, and a summary judgment that allows a Rule 4:37 — 2(b) weighing of evidence to determine if a genuine issue of material fact exists, is that summary judgment motions are generally decided on documentary-evidential materials, while the directed verdicts are based on evidence presented during a trial. Under our holding today, the essence of [“]the inquiry [in] each is the same: whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” [Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202, 214 (1986).]

Of course, there is in this process a kind of weighing that involves a type of evaluation, analysis and sifting of evidential materials. This process, however, is not the same kind of weighing that a factfinder (judge or jury) engages in when assessing the preponderance or credibility of evidence. On a motion for summary judgment the court must grant all the favorable inferences to the non-movant. But the ultimate factfinder may pick and choose inferences from the evidence to the extent that ‘‘a miscarriage of justice under the law” is not created. R. 4:49-l(a).

Measured by that standard, a dismissal under Rule 4:37-2(b), Rule 4:40-1, Rule 4:40-2 or for failure to allege or prove a prima facie case, does not unduly intrude into the province of the jury. In those instances, there simply is no issue to be decided by a jury based on the evidence. A jury resolves factual, not legal, disputes. If a case involves no material factual disputes, the court disposes of it as a matter of law by rendering judgment in favor of the moving or non-moving party on the issue of liability or damages or both. Thus, [“]the right of trial by jury [remains] inviolate!”] N.J. Const, art. I, ¶ 9; Weinisch v. Sawyer, 123 N.J. 333, 342-44, 587 A.2d 615 (1991); Shaner v. Horizon Bancorp, 116 N.J. 433, 446-[47], 561 A.2d 1130 (1989); Hager v. Weber, 7 N.J. 201, 211 [81 A.2d 155] (1951); 500 Columbia Turnpike Assocs. v. Haselmann, 275 N.J.Super. 166, 171, 645 A.2d 1210 (1994). Furthermore, the right to a jury trial has never prevented our courts from granting summary judgment in an appropriate case even before Judson[ v. Peoples Bank & Trust of Westfield, 17 N.J. 67, 110 A.2d 24 (1955)] was decided. National Surety Corp. v. Clement, 133 N.J.L. 22, 26, 42 A.2d 387 (E. & A.1945); Jasion v. Preferred Accident Ins. Co., 113 N.J.L. 108, 110-111, 172 A. 367 (E. & A.1934); Coykendall v. Robinson, 39 N.J.L. 98, 100-01 (E. & A. 1876).

[Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536-37, 666 A.2d 146 (1995).]

A.

The immunity provided in N.J.S.A. 34:15-8 states that an employee’s exclusive remedy for an accident that arises out of and during the course of employment is workers’ compensation and the employer “shall not be liable to anyone at common law or otherwise on account of such injury or death for any act or omission occurring [to such an employee], except for intentional. wrong.” Ibid.

The Appellate Division in this case accurately summarized the decisional law interpreting the meaning of the “intentional wrong” exception. In its unpublished opinion, the court stated that in Millison v. E.I. duPont de Nemours & Co., 101 N.J. 161, 501 A.2d 505 (1985), the first case to address the issue,

the Court concluded that an intentional wrong is not strictly a deliberate assault and battery. Id. at 177[-78, 501 A.2d 505]. Instead, the Court adopted a “substantial certainty” standard. Id. at 178 [501 A.2d 505]. In adopting this standard, the Court relied on language from W. Prosser and W. Keeton, The Law of Torts, (5th [sic] ed.1984). The Court was in agreement with Dean Prosser, stating that:

[T]he mere knowledge and appreciation of a risk — something short of substantial certainty — is not intent. The defendant who acts in the belief or consciousness 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.

[Millison, supra, 101 N.J. at 177, 501 A.2d 505 (quoting W. Prosser and W. Keeton, supra § 8 at 36).]

Thus, simply being aware of the risk of harm does not equate to having knowledge of a substantial certainty of harm. Id. at 178 [501 A.2d 505]. The Court concluded that substantial certainty needs to be “virtual certainty.” Ibid, [citation omitted].

The context within which the conduct occurs is also as important in defining an intentional wrong. Id. at 179 [501 A.2d 505]. That is, for the injury to be the result of an intentional wrong, it must be an injury that the Legislature did not contemplate to be part and parcel of workplace hazards intended to be covered by the Act; nor can the circumstances giving rise to the injury be within the contemplation of the Act. Ibid. Millison, thus, established a two-prong test for determining an intentional wrong: conduct and context, both of which must be met by plaintiff. Ibid,

One of the questions that has emerged from post Millison litigation is whether intentionally removing or disabling a safety device from workplace equipment satisfies the definition of intentional wrong. See Mabee v. Borden, Inc., 316 N.J.Super. 218, 230-231 [720 A.2d 342] (App.Div.1998) (holding that whether-alteration or removal of a safety device is an “intentional wrong” will be dependent on the facts of each case); Calderon v. Machinenfabriek Bollegraaf Appingedam BV, 285 N.J.Super. 623, 637 [667 A.2d 1111] (App.Div.1995) (suggesting in dicta that there could be “liability on the part of a corporation whose management ... [has] removed safety devices so that ... it is practically certain that some employee [will] be injured.”), certif. denied, 144 N.J. 174 [675 A.2d 1122] (1996).

Recently, our Supreme Court in Laidlow v. Hariton Machinery Co., 170 N.J. 602 [790 A.2d 884] (2002), addressed whether removing a safety device is an intentional wrong. Before beginning its analysis, the Court reiterated the meaning of Millison. It stated:

[I]n 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.

[Laidlow, supra, 170 N.J. at 617, 790 A.2d 884.]

In Laidlow, “an injured employee claim[ed] that his employer ha[d] removed a safety device from a dangerous machine, knowing that the removal was substantially certain to result in injury to its workers____” Id. at 606 [790 A.2d 884]. Plaintiff, Rudolph Laidlow, was employed by AMI-DDC, Inc. (AMI), an electrical products manufacturing company. Id. at 607 [790 A.2d 884]. While using a rolling mill'at work he suffered a “degloving injury resulting in partial amputations of the index, middle, ring and small fingers of his dominant left hand.” Ibid Laidlow’s glove was caught in an unguarded nip point which “pulled [his hand] toward the mill’s rollers.” Ibid. This was not the first time an employee had gotten [his or her] glove snagged on the nip point, but this was the first injury that resulted. Id, at 607-[0]8 [790 A.2d 884]. Those prior “close calls” occurred on two occasions and both times the employees reported it to AMI. Id. at [607-08, 790 A.2d 884].

AMI purchased a safety guard for the mill in 1979, but it was purposely kept disengaged up until the date of Laidlow’s accident in 1992. [Id at 608, 501 A.2d 505], The “guard was placed in its proper position only when Occupational Safety and Health Administration (OSHA) inspectors came to the plant.” Ibid Prior to Laidlow’s accident he had asked one of his superiors three times to restore the guard to its proper working position. Ibid AMI ignored those requests, and conceded “that the guard was removed for ‘speed and convenience.’ ” Ibid Laidlow retained a professional engineer who certified that AMI “ ‘knew there was a virtual certainty of injury to Mr. Laidlow or a fellow work[er] arising from the operation of the mill without a guard.’ ” Id at 608-[0]9 [501 A.2d 505].

The Court concluded that a jury could find Laidlow’s employer knew that it was “substantially certain that the removal of the safety guard would result eventually in injury to one of its employees.” Id. at 622 [501 A.2d 505], The Court based this on the evidence showing “prior close calls, the seriousness of any potential injury that could occur, Laidlow’s complaints about the absent guard, and the guilty knowledge of AMI as revealed by its deliberate and systematic deception of OSHA.” Ibid. Thus, it was inappropriate to grant summary judgment on the substantial certainty issue as a jury question was presented. Ibid

The Court also concluded that the context prong of Millison would be met if Laidlow proved his allegations. As the Court said:

Indeed, if an employee is injured when an employer deliberately removes a safety device from a dangerous machine to enhance profit or production, with substantial certainty that it will result in death or injury to a worker, and also deliberately and systematically deceives OSHA into believing that the machine is guarded, we are convinced that the Legislature would never consider such actions or injury to constitute simple facts of industrial life. On the contrary, such conduct violates the social contract so thoroughly that we are confident that the Legislature would never expect it to fall within the Worker’s Compensation bar.

[Laidlow, supra, 170 N.J. at 622, 790 A.2d 884.]

The Court was quick to add that its finding did not establish a “per se rule that an employer’s conduct equates with an ‘intentional wrong’ within the meaning of N.J.S.A. 34:15-8 whenever that employer removes a guard or similar safety device from equipment or machinery, or commits some other OSHA violation. Rather, our disposition in such a case will be grounded in the totality of the facts contained in the record and the satisfaction of the standards established in Millison [¶]... Id. at 622-23 [501 A.2d 505],

The Court examined the ruling in Mabee, supra, where we applied the Millison standard to a situation in which an employer was accused of intentionally removing a safety device. The Court fully embraced Mabee when it said that “removal of a safety guard can meet the intentional wrong standard; that such a determination requires a case-by-case analysis; that the facts of Mabee presented a jury issue on substantial certainty; and that, if proved, those facts would meet the context prong of Millison." Laidlow, supra, 170 N.J. at 619 [790 A.2d 884] [ (footnote omitted by Appellate Division) ].

In Laidlow, supra the Court explained at length what is expected in deciding motions for summary judgment based on the Workers’ Compensation bar set forth in N.J.S.A. 34:15-8. It stated that:

In general, the same facts and circumstances will be relevant to both prongs of Millison. However, as a practical matter, when an employee sues an employer for an intentional tort and the employer moves for summary judgment based on the Workers’ Compensation bar, the trial court must make two separate inquiries. The first is whether, when viewed in a light most favorable to the employee, the evidence could lead a juiy to conclude that the employer acted with knowledge that it was substantially certain that a worker would suffer injury. If that question is answered affirmatively, the trial court must then determine whether, if the employee’s allegations are proved, they constitute a simple fact of industrial life or are outside the purview of the conditions the Legislature could have intended to immunize under the Workers’ Compensation bar. Resolving whether the context prong of Millison is met is solely a judicial function. Thus, if the substantial certainty standard presents a jury question and if the court concludes that the employee’s allegations, if proved, would meet the context prong, the employer’s motion for summary judgment should be denied; if not, it should be granted.

[Id. at 623, 790 A.2d 884.]

The Court continued, stating that:

Obviously, the proofs at trial may not track the employee’s allegations. Thus, the employer may, even after a jury returns a verdict in the employee’s favor regarding substantial certainty, apply to the trial court for reconsideration of the context issue based on the difference between the facts actually established at trial and what plaintiff alleged would be proved. With that possibility in mind, where the evidence is in conflict regarding the allegations relied on by the tidal court, for its preliminary context evaluation, the court should secure from the jury a resolution of those conflicts by way of a carefully crafted jury verdict form.

[Id. at 623-24, 790 A.2d 884.]

The Appellate Division applied the above legal principles to the facts and inferences that were most favorable to plaintiff and concluded that, even if defendant disabled the safety lever on the snow blower,

there was a lack of evidence that defendant knew there was a virtual certainty that an employee would be injured from using the snow blower in that condition. There is no expert testimony or other evidence suggesting defendant knew that disabling the safety device was substantially certain to harm plaintiff. As stated in Millison and reiterated in Laidlow, merely knowing of the existence of a risk of injury is insufficient. There needs to be virtual certainty. There is no evidence of such certainty here.

To conclude that the mere act of disabling a safety device is substantially certain to cause harm to an employee is to say such an act by an employer is a per se intentional wrong. In Laidlow our Supreme Court clearly stated that it is not per se an intentional wrong to “remove[] a guard or similar safety device from equipment or maehineryt____]” Id at 622-23 [790 A.2d 884].

Determining whether the context prong is satisfied, is strictly a judicial function. Laidlow, supra, 170 N.J. at 623 [790 A.2d 884], In Laidlow and Mabee [,] where a safety device was disabled, it was held that because the circumstances under which the employer acted were so egregious the actions could not have been contemplated by the Legislature in enacting the Act. Here, before the motion judge, there was no evidence suggesting defendant acted in a manner inconsistent with what is part and parcel of the workplace. Missing from the facts here are the deception and blatant disregard for the plaintiffs well-being that was present in Mabee and Laidlow, or evidence of conduct that demonstrates defendant “violate[d] the social contract so thoroughly that we are confident the Legislature would never expeet it to fall within the Workers^] Compensation bar.” Laidlow, supra, 170 N.J. at 622 [790 A.2d 884], Although plaintiffs injury is regrettable, the proofs here do not support a finding that his injury is “more than a fact of life of industrial employment and ... plainly beyond anything the Legislature intended the Workers’ Compensation Act to immunize.” Laidlow, supra, 170 N.J. at 617 [790 A.2d 884], Defendant’s motion for summary judgment should have been granted.

We agree with the Appellate Division and affirm substantially for the reasons expressed by that court.

B.

We add the following to the Appellate Division’s well-reasoned analysis. The snow blower is not part of the equipment or machinery used to produce or install sprinklers in commercial buildings — the business purpose of defendant. The snow blower is a consumer product rather than a piece of industrial production machinery. As the user of a consumer product, plaintiff concedes that the snow blower contained two visible warning labels with respect to dangers associated with inserting a body part into the chute. Therefore, the presence of the warning labels, the consumer-user expectation and obviousness of danger incorporated into our Products Liability Act, N.J.S.A 2A:58C-3a(2), and the presumption that users of consumer products will heed the warnings with respect to dangers inherent in the consumer product should be considered under the context prong articulated in Millison.

Apart from whether plaintiff should be subject to comparative negligence, see Suter v. San Angelo Foundry & Mach. Co., 81 N.J. 150, 166-67, 406 A.2d 140 (1979), his conduct can be considered in analyzing the context prong and as an intervening-superceding cause that affects the substantial certainty prong as well. See Johansen v. Makita U.S.A., Inc., 128 N.J. 86, 102, 607 A.2d 637 (1992). Contrary to the assertions in Justice Albin’s dissent, post at 380-85, 823 A.2d at 779-80, this is a case in which plaintiff knew or should have known the propellers were operating before inserting his hand into the chute when the evidence is viewed in a light most favorably to plaintiff. He started the engine on the snow blower, placed the gear lever into a forward-motion position and then observed snow being ejected through the chute without, according to him, engaging the safety lever. Although plaintiff did not recall seeing the visible danger warning labels on the machine, he admitted that they were probably there before the accident. The pictures presented as evidence clearly demonstrate that the warning labels were written in contrasting colors and were located on the machine’s hazardous areas, including the discharge chute. The warning decals contained the word “DANGER” with a pictorial description of a hand near a rotating blade or propeller inside the discharge chute. Those warning labels were adequate regardless of whether plaintiff recalls seeing them. See N.J.S.A. 2A:58C-4. Nonetheless, he inserted his hand into the chute, not once, but two or three times. After using his hand to push downward, on the snow that was clogging the chute, plaintiff observed the snow as it was propelled 'out of the chute before his accident. His hand was injured on the second or third unclogging maneuver. In the circumstances, it was not the taping but the insertion of the hand into the chute with the knowledge that the propellers were operating that created the virtual certainty. Inserting the hand into the chute was an intervening cause, defined as “[a]n event that comes between the initial event in a sequence and the end result, thereby altering the natural course of events that might have connected a wrongful act to an injury.” Black’s Law Dictionary (7th ed.1999).

Assuming, as we must, that defendant was responsible for the taping, its alleged conduct can be characterized at most as grossly negligent in that it may “amount[] to deliberately taking risks with employees’ [safety],” but “the mere knowledge and appreciation of a risk — even the strong probability of a risk — will come up short” on the “substantial certainty” prong. Millison, supra, 101 N.J. at 179, 501 A.2d 505. Moreover, the claim of negligent training of plaintiff in the use of the snow blower is a red herring. No special training was required to be given for the snow blower because it is a consumer product. The warning labels adequately informed plaintiff not to put his hand into the chute while the propellers were operating. There is no claim of a defect with respect to the design, the manufacturing, or the warning within the meaning of our Products Liability Act, N.J.S.A 2A:58C-1 to - 11. Even if there was a duty to train plaintiff in the proper use of the snow blower, neither negligence nor gross negligence can satisfy the “intentional wrong” requirement of N.J.S.A. 34:15-8. Millison, supra, 101 N.J. at 183, 501 A.2d 505.

Nor can the context prong, which is a legal determination, be satisfied because plaintiff knew or should have known that the propellers were operating when he inserted his hand into the chute; the labels on the machine clearly warned him of the dangers in this consumer product; and the danger inherent in the snow blower was obvious. Those facts coupled with the presumption that a proper warning of danger will be heeded, Coffman v. Keene Corp., 133 N.J. 581, 597-98, 628 A.2d 710 (1993), are dispositive on the context prong. Our law does not impose a duty on an employer to prevent an employee from engaging in self-damaging conduct absent a showing that the employer encouraged such conduct or concealed its danger. No such proofs were presented in this case. Furthermore, when the risk of danger is obvious in a consumer product, our Legislature has provided an objective standard for measuring whether a user of consumer goods has engaged in proper self-protective measures. It has stated that if a consumer or user is injured while using a consumer product, as opposed to “industrial machinery or other [production] equipment used in the workplace,” and “[t]he characteristics of the product are known to the ordinary consumer or user, and the harm was caused by an unsafe aspect of the product ... that would be recognized by the ordinary person who uses or consumes the product with the ordinary knowledge common to the class of persons for whom the product is intended,” that consumer or user cannot recover from the manufacturer or seller of that product under a theory of defective design. N.J.S.A 2A:58C-3a(2). The same principle should apply when a consumer product is involved in an “intentional wrong” under N.J.S.A. 34:15-8.

Under the foregoing objective statutory test, a plaintiff consumer or user is presumed to have the knowledge of the class of reasonable foreseeable plaintiffs. N.J.S.A. 2A:58C-3a(2). Application of the legislative test to this case means that under the Millison-Laidlow standard, even if the employer disengaged the safety lever, that conduct cannot satisfy the intentional wrongdoing standard. The “substantial certainty” prong and the legal concept of causation are intertwined. Here, the natural and continuous sequence of events was broken by an efficient intervening cause when plaintiff placed his hand into the chute two or three times knowing that the propellers were operating. Therefore, in a legal sense, the alleged taping of the safety lever was not a substantial factor in causing the injury but “simply presents the [surrounding] condition^] under which the injury was received.” Brown v. United States Stove Co., 98 N.J. 155, 172, 484 A.2d 1234 (1984) (citations omitted).

Finally, the facts of this case are analogous to the ease of a carpenter whose hand is injured on a power saw when the carpenter removes a piece of wood from an unguarded saw blade. In both instances, the Legislature contemplated that those accidents would be part and parcel of workplace hazards covered by workers’ compensation.

Consequently, considering the evidence in a light most favorable to plaintiff, his proofs failed to make a prima facie showing that either of the Millison-Laidlow prongs for an intentional tort under N.J.S.A. 34:15-8 could be established. For that reason, summary judgment should have been granted. Having failed as a matter of law to establish the elements of an intentional tort at the conclusion of all the evidence, judgment for defendant notwithstanding the verdict should have been entered. “[T]he failure to present evidence warranting submission of a factual issue to the jury is the functional equivalent of a waiver of the right to have a jury decide the case.” Brill, supra, 142 N.J. at 537, 666 A.2d 146.

III.

The judgment of the Appellate Division is affirmed.