Estate of Portillo v. Bednar Landscaping Serv., Inc., et at. and Estate of Zelaya v. Bednar Landscaping Serv., Inc., et al., No. A-3110-19 (App. Div. July 8, 2021)

The Appellate Court affirms grant of summary judgment for plaintiffs’ failure to establish intentional wrong.

In these consolidated wrongful death actions, the Appellate Division affirmed the Law Division’s grant of summary judgment to the defendants.

On October 1, 2014, while working in a trench which collapsed, Portillo and Zelaya were pronounced dead at the scene. For this project, Keith Bednar, the designer, testified that he instructed Zelaya to dig a nine-foot-deep, 300-foot-long trench, two or three feet wide. He estimated that his business excavated trenches deeper than five feet maybe five to eight times and never used a trench box or other methods to secure the sides of trenches before. He testified he never thought the trench could collapse or about using a trench box. He also stated he nor any other officer or employee of the business took an Occupational Safety and Health Administration (OSHA) safety course before the accident, although all the foremen competed after the incident.

Following the incident, OSHA investigated and found multiple violations of safety standards and issued a willful violation citation as workers were exposed to crushing injuries without adequate protection. The Morris County Prosecutor’s Office also investigated, and on January 18, 2018, Bednar Landscape pled guilty under an accusation charging one count of fourth-degree causing or risking widespread injury or damage. The corporate entity was sentenced to two years of probation and ordered to pay $50,000 in restitution to the decedents’ families as well as pay a fine. Bednar Landscape requested a civil reservation, which the State did not object to, but the Estate of Portillo did object. The trial court found good cause for entry of a civil reservation, and the Appellate Division noted it affirmed.

After discovery closed, Bednar Landscape moved for summary judgment as the plaintiffs were collecting workers’ compensation benefits and the defendants did not commit an “intentional wrong.” Summary judgment was granted, finding 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…” The judge noted while there was a good case for “recklessness or gross negligence,” the plaintiffs could not establish an “intentional wrong.” The judge also considered and rejected the plaintiffs’ arguments that the corporate guilty plea was sufficient to meet the “substantial certainty” test as the factual basis referred to OSHA’s finding of “reckless” conduct.

The plaintiffs appealed, arguing there were significant disputes of facts, which should have been reserved for a jury, and that they satisfied the intentional wrong standard. After reviewing relevant case law, the Appellate Division found that, unlike some of the prior cases, the defendants here had no prior OSHA citations and were not aware of OSHA’s safety regulations for trenches. In addition, the plaintiffs could not show the defendants had knowledge regarding the unsafe trenching practice and substantial certainty of the collapse. 

In addition, the plaintiffs asserted the corporate guilty plea revealed the defendants were substantially certain their actions could cause injury or death. The Appellate Division pointed out that there was no testimony during the plea hearing and the basis was due to Bednar Landscape’s “reckless failure to protect the job site in accordance with OSHA standards.”

Judge Sabatino joined in the majority’s decision to affirm summary judgment, but added in his concurring opinion his thoughts on the troubling inconsistency between the defendants’ lack of knowledge assertions in the civil case and Bednar Landscape’s plea of guilty to a criminal accusation of violating a known legal duty to take precautionary safety measures. However, he noted they did not need to resolve this question as the Supreme Court has not recognized the theory of “willful ignorance” as a basis to overcome the intentional wrong bar.

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