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What's Hot in Workers' Comp

Appellate Division affirmed grant of summary judgment in favor of defendant.

Busby v. Seabrook Bros. & Sons, No. A-1925-21 (August 5, 2024)

October 1, 2024

by Kiara K. Hartwell

The plaintiff began working for Seabrook in January 2017, and in April 2017, he injured his right hand while cleaning a commercial mixing machine (Line 9). Vegetables were fed into Line 9 through hoppers and then into a trough, where a rotating auger mixed and moved the product. The employer bought the top hopper component of Line 9 from a manufacturing company in 2011, but they did not buy the corresponding conveyor system. As Seabrook’s guard was not designed for the conveyor system, it had to be removed to clean the auger. 

While there was a dispute as to whether the guard was always on the machine, Seabrook knew it was dangerous if the guard was not on the machine while it was activated during the cleaning process. The plaintiff was never trained on the cleaning process. In 2012, OSHA performed an inspection, and as a result, cited Seabrook. There was a dispute as to whether Seabrook abated the violations prior to this incident.

The plaintiff was not trained in the cleaning and safety procedures, and there was no guard on the auger when he was cleaning. He began cleaning for about 30 seconds when it suddenly turned on, pulling the hose and his hand into the auger. A former employee testified that he witnessed other close calls, but never reported them to a supervisor. The plaintiff’s injury was the first injury relating to the auger on Line 9.

In April 2019, the plaintiff filed a personal injury action against Seabrook, alleging substantial certainty of harm due to Seabrook’s removal of the guard and failure to train the plaintiff. Seabrook moved for summary judgment, and after oral arguments, the judge rendered an oral opinion granting the motion. The judge found Seabrook did not engage in any deliberate acts that led to the plaintiff’s injury, its failure to train and have lockout procedures in place were more akin to negligence, and there was also a lack of any prior injuries on Line 9. 

The plaintiff appealed, arguing the court did not properly consider his expert’s report and the outside evidence regarding the OSHA violations. The plaintiff presented a variety of facts and arguments he alleged supported an inference of a substantially certain injury. After an extensive review of the case law, the Appellate Division noted why the cases the plaintiff cited were distinguishable: mainly due to notice of prior injuries, history of close calls, etc. 

The Appellate Division also pointed out there was no intentional or fraudulent deception by Seabrook and that the plaintiff was injured when Line 9 was unexpectedly activated. The Appellate Division focused on language from Bove v. AkPharma Inc., 460 N.J. upper. 123 (App. Div. 2019), in noting that a violation of safety regulations or a failure to follow safety practices were not intentional wrongs unless accompanied by something more. 

As for the plaintiff’s argument that summary judgment is inappropriate whenever there is an unopposed expert report of a substantially certain injury, the Appellate Division found no error in the judge’s lack of referencing the expert report. The court found the accident was due to negligence, rather than an intentional wrong, and the expert report did not require the court to deny summary judgment. 

Finally, the Appellate Division briefly addressed the outside evidence regarding the OSHA violations, finding the court applied the “opening the door” doctrine in considering this evidence. The court found this evidence to be relevant and it was proper to consider this evidence in the OSHA violations argument. 

The Appellate Division affirmed the granting of summary judgment in favor of Seabrook. 

 

What’s Hot in Workers’ Comp, Vol. 28, No. 10, October 2024, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2024 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.

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