Superior Court of New Jersey,Appellate Division.

Joseph DADURA, Jr. and Barbara Dadura, his wife, Plaintiffs-Appellants,

v.

YUM! BRANDS, INC., d/b/a Taco Bell Corp., and/or Taco Bell Corp., Barnathan Brothers, d/b/a El Rancho Foods, Raul Rodriguez, Defendants,

andWalmart Stores, Inc., McLane Company, Inc., McLane Foodservice, Inc., Transco, Inc., Defendants-Respondents.

Argued March 4, 2008.

Decided April 8, 2008.

PER CURIAM.

Plaintiffs appeal from an order entered on April 26, 2007, granting summary judgment in favor of defendants Walmart Stores, Inc ., McLane Company, Inc., McLane Foodservice, Inc., and Transco, Inc. and dismissing their complaint with prejudice. We affirm.

The facts pertaining to this appeal are relatively straightforward. Plaintiff Joseph Dadura (Dadura) was employed by McLane Foodservice, Inc. as a “driver specialist.” On the morning of January 10, 2003, Dadura departed from Burlington, New Jersey, with a tractor-trailer loaded with food products that were to be delivered to various restaurants in New York City and New Jersey. Dadura’s partner David Miller accompanied him on this route.

McLane Foodservice, Inc. is wholly-owned by McLane Company, Inc ., which is in turn wholly-owned by Walmart Stores, Inc. Defendant was driving a truck owned by Transco, Inc., an entity also owned by Walmart.

Dadura made deliveries at three restaurants in New York City and in northern New Jersey before proceeding to a Taco Bell restaurant on Bergenline Avenue in West New York, New Jersey. Dadura and Miller arrived there between 5:30 a.m. and 6:00 a.m. Dadura explained that in that area, Bergenline Avenue near 67th Street is a two-way street with one lane for moving traffic and another lane for parking on each side of the street.

Dadura parked the tractor-trailer on Bergenline Avenue in front of the Taco Bell. At his deposition, Dadura testified that he was not permitted to park on 67th Street, and therefore he had to double-park. Dadura said that he activated the “four-way” lights on the vehicle. Dadura stated that he did not utilize any other warning devices, such as cones or orange triangles, because his employer did not “issue any safety equipment.” According to Dadura, the weather was “dry and cold.” He described Bergenline Avenue as “flat” and said that it was illuminated by streetlights.

Dadura and Miller began unloading the truck. Dadura said that his routine was to check the invoice to determine the products that were needed for that particular location, and then unload the products in the street. Dadura and Miller then would deliver the products to the restaurant using hand-trucks. Miller was inside the truck and Dadura was standing in the street on the back end of the trailer.

Miller noticed a Honda Civic approaching from a distance. He stated that the vehicle was traveling in the lane of traffic where the tractor-trailer was parked. The car approached a red light at the intersection directly behind the tractor-trailer. Miller saw that the car was not slowing down and was going to pass the red light without stopping. The vehicle went through the red light. Miller thought that the car would not avoid hitting the tractor-trailer, since it was traveling at a high rate of speed. Miller called out to Dadura to move but Dadura was struck by the vehicle. Plaintiff sustained serious injuries in the accident.

The driver of the vehicle was identified as Raul Rodriguez. The police investigation revealed that Rodriguez and a friend had been at certain nightclubs in River Edge, New Jersey, and Queens, New York, on the evening before the accident. At around 2:30 a.m., Rodriguez consumed two beers and a beverage called a “Long Island Iced Tea.” Rodriguez admitted that he fell asleep at the wheel before his car struck plaintiff and crashed into the tractor-trailer. Rodriguez was convicted of third-degree aggravated assault, contrary to N.J.S.A. 2C:12-1b(7). He was sentenced to three years of probation.

Dadura testified that most of the restaurant locations on his delivery route were “free-standing” facilities with parking lots that allowed Dadura to pull his tractor-trailer off the street and off-load safely. However, the Taco Bell in West New York is on a corner in a very busy downtown urban shopping district and it did not have such an arrangement. Dadura said that his employer did not provide him with instructions on the procedures that should be followed when making deliveries at that location.

Dadura also stated that during several previous deliveries to the Taco Bell in West New York, he attempted to park the tractor-trailer on 67th Street, which is a one-way street near the Taco Bell. However, the local police told him that he had to double-park the truck on Bergenline Avenue. Dadura asserted that when he did so, he was dangerously exposed to the ongoing traffic.

Dadura claimed that, prior to the accident, he complained on numerous occasions to his supervisors, James Fox, Thomas Foster, and Belinda Jackson. Dadura said that he had expressed his concerns about the fact that he had to double-park on Bergenline Avenue, and he was exposed to exactly the kind of accident that occurred on January 10, 2003. Dadura asserted that his complaints were not only ignored but he was told that he would be written up and fired if he did not make the deliveries.

Plaintiffs filed a complaint in which they asserted claims against Walmart, Transco, McLane Foodservice, and McLane Company, and others.Plaintiffs alleged that Walmart, Transco and the McLane defendants were:

Plaintiffs also named as defendants Yum! Brands, Inc. d/b/a Taco Bell Corp.; Taco Bell Corp.; Barnathan Brothers d/b/a El Rancho Foods; and Rodriguez. In 2006, summary judgment was granted to the Taco Bell entities. At argument, we were advised that summary judgment also had been entered in favor of Barnathan. Moreover, it appears that plaintiffs did not pursue their claims against Rodriguez.

careless and negligent in that, among other things, they failed to provide [plaintiff] for purposes of this delivery of materials with appropriate equipment pursuant but not limited to Section 393.95 of the Federal Motor Carrier Motor Safety Regulations and therefore failed to provide plaintiff with an appropriate and safe place to off-load and accomplish delivery; failed to provide plaintiff with appropriate warning devices and/or traffic implements so as to alert on-coming traffic to his presence; and were otherwise negligent and careless as to be established at the time of trial[.]

Dadura’s wife Barbara Dadura claimed that, due to the negligence of defendants, she had been deprived of her husband’s care, services, companionship, and consortium.

In discovery, plaintiffs furnished a report dated October 6, 2006, from Ronald E. Tomasetti, a safety consultant, who stated that Dadura’s supervisors at McLane Foodservice were aware of his safety concerns. According to Tomasetti, McLane Foodservice violated accepted and reasonable operating practices established by the Occupational Safety and Health Administration (OSHA) to ensure that workers have a place of employment that is free of recognized hazards that may cause death or serious injury.

Tomasetti stated that, if the managers at McLane Foodservice had performed a “simple route survey,” they would have known that double-parking on Bergenline Avenue in West New York would place the tractor-trailer in a hazardous location. Tomasetti wrote that McLane Foodservice authorized Dadura and Miller to off-load on Bergenline Avenue, “not only without consideration for the safety of [its] employees, [which is] a direct violation of OSHA regulations, but in such a way as to intentionally expose them to a specific and recognized risk, specifically, to be struck by on-coming vehicles.”

Tomasetti also stated that reports from the West New York Police Department revealed that 165 “similar” accidents had occurred on Bergenline Avenue in the period from January 2003 to June 2003. Tomasetti asserted that 24 “similar” accidents occurred on Bergenline Avenue one month after the accident in which Dadura was injured. He added that the “total accident count for Bergenline Avenue in West New York is over 120 accidents per month.”Tomasetti stated that this accident information was available to defendants prior to Dadura’s accident but defendants had failed to research or consider the accident data before permitting the tractor-trailer to double park on Bergenline Avenue at the West New York delivery site.

Tomasetti concluded that, “to a reasonable degree of certainty within the trucking industry, there was a substantial certainty of the type of injury suffered by [Dadura] occurring at this location.”Tomasetti further opined that McLane Foodservice “intentionally exposed [Dadura] to this danger” and that “[t]his exposure was not necessary or required as part of the trucking industry, but rather a deviation from accepted and acceptable standards.”

On February 15, 2007, Walmart, Transco and the McLane defendants filed a motion for summary judgment, arguing that plaintiffs’ claims were barred by the exclusive remedy provision of the Workers’ Compensation Act (Act), specifically N.J.S.A. 34:15-8, which provides in pertinent part that “[i]f an injury or death is compensable under [the Act], 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, expect for intentional wrong .”Judge David W. Morgan heard argument on the motion on March 16, 2007. On April 26, 2007, the judge filed a written opinion in which he concluded that plaintiffs’ claims against Walmart, Transco, and the McLane entities were barred by N.J.S.A. 34:15-8.

The judge found that the workers’ compensation bar applied to Dadura’s claims against McLane Foodservice because his claim “constitutes a negligence or gross negligence allegation; there is insufficient basis in the record for a rational fact finder to infer that [McLane Foodservice] deliberately intended to harm [Dadura] or knew the consequences of its inaction were substantially certain to result in harm.”The judge further found that Dadura’s injury and the circumstances in which it occurred were a fact of industrial life and were not outside of the purview of the conduct that the Legislature intended to immunize under N.J.S.A. 34:15-8.

The judge added that McLane Company, Transco, and Walmart had argued that they also were immune under N.J.S.A. 34:15-8 from liability for the claims asserted by plaintiffs. Plaintiffs had not responded to this argument. In any event, the judge stated:

There are no claims made by [Dadura] against either Transco or Walmart which are independent from the claims against McLane. The basic gist of [Dadura’s] complaint is that his “employers” intentionally placed him in a dangerous situation where they knew he would be injured. That same theme holds as to Transco and Walmart without any separate theory or cause of action stated as to them. Since there are no claims against the related entities independent of the claims made against [Dadura’s] direct employer McLane and since the entities are affiliated as an integrated business entity, this court finds that the [w]orkers’ [c]ompensation bar immunizes all remaining defendants named in this action.

On April 26, 2007, the judge entered an order memorializing his decision. This appeal followed. Plaintiffs argue that the judge erred by granting summary judgment to Walmart, Transco, and the McLane entities. Plaintiffs contend that the facts and the favorable inferences that can be drawn from those facts provide sufficient evidence to establish that the employer’s failure to act in this case created a substantial certainty that its employees would suffer the sort of injury that Dadura sustained on January 10, 2003.

We have carefully considered the record in light of the arguments raised by plaintiffs. We are convinced that plaintiffs’ arguments are without merit. We therefore affirm the order granting summary judgment to Walmart, Transco and the McLane entities substantially for the reasons stated by Judge Morgan in his thorough and comprehensive written opinion dated April 26, 2007. R. 2:11-3(e)(1)(A) and (E). We add the following brief comments.

The workers’ compensation bar in N.J.S.A. 34:15-8 generally precludes an employee from asserting a claim against his employer for an act or omission that results in injuries or death, except when such injury or death is the result of an “intentional wrong.” Our Supreme Court has established a two-part test for determining whether an employer’s actions constitute an “intentional wrong” for purposes of N.J.S.A. 34:15-8. A court must consider the employer’s conduct as well as the context in which that conduct occurs.Millison v. E.I. duPont de Nemours & Co., 101 N.J. 161, 178-79 (1985).

In assessing the employer’s “conduct,” the court must determine whether the employer acted with “substantial certainty” that its actions would result in injury or harm. Id. at 177-78.Moreover, in considering the “context” of the matter, the court must consider whether the injury and the circumstances in which it occurred may “fairly be viewed as a fact of life of industrial employment, or … plainly beyond anything the legislature could have contemplated as entitling the employee to recover only under the [Workers’] Compensation Act[.]” Id. at 179.

In Laidlow v. Hariton Mach. Co., 170 N.J. 602 (2002), the Court additionally explained that:

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 jury 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.]

Here, Judge Morgan correctly found that plaintiffs failed to present sufficient evidence to raise a genuine issue of material fact as to whether Dadura’s injury resulted from an “intentional wrong” of his employer. The judge viewed the evidence in a light most favorable to plaintiffs, gave the plaintiffs the benefit of all favorable inferences that could be drawn from the evidence, and properly determined that Walmart, Transco, and the McLane entities were entitled to judgment as a matter of law. R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

Judge Morgan correctly noted that, while the evidence might support a claim for negligence, gross negligence, or even reckless conduct on the part of Dadura’s employer, the evidence was insufficient to allow a reasonable fact-finder to determine that the employer “deliberately intended to harm [Dadura] or knew that the consequences of its inaction were substantially certain to result in harm.”Judge Morgan also correctly found that the evidence failed to meet the “context” prong of the Millison test. The judge aptly observed that the injury and the circumstances in which it occurred were “a simple fact of industrial life” and not “outside the purview of the conditions” that the Legislature intended to immunize under N.J.S.A. 34:15-8.

Affirmed.