Was this workplace death primarily caused by the employer’s modification of a truck’s safety device or by the employee disobeying company rules? A recent court ruling addresses the widow’s lawsuit against the company.
Samuel Sellino worked as a trash truck operator for Pinto Brothers Disposal in New Jersey. He died after falling under the wheels of a trash truck he had been driving.
His widow sued for intentional harm, arguing that the case fell outside of the exclusive remedy of workers’ compensation because a change in a safety device on the truck created a “substantial certainty” that a worker would be seriously injured or killed.
Pinto Brothers asked that the lawsuit be thrown out, and a New Jersey court did so, ruling Sellino’s death didn’t meet the formidable standard of intentional harm.
Sellino’s widow took her case to a state appeals court, arguing the lawsuit should have been allowed to go to trial.
How did the truck run over its driver?
Most of the facts of the case weren’t disputed.
On Oct. 17, 2008, Sellino was assigned to drive a trash truck. Chris Pinto, a cousin of the owners of Pinto Brothers, was assigned to get on and off the truck to throw brush into its compactor.
At one stop, Sellino got out of the vehicle while it was in drive with the parking brake on. The truck started rolling forward. Sellino and Pinto ran after it, and it finally came to a stop. It was only after it stopped that Pinto realized Sellino had fallen under the wheels and died.
Neither side disputed that if Sellino had left the truck in neutral rather than drive, it wouldn’t have rolled forward. It’s also undisputed that Pinto Brothers’ policy was that drivers stay inside the cab. One of the owners said he explicitly told Sellino to stay in the cab because he had a habit of getting out.
The company said its protocol called for the driver to put the truck in neutral and set the parking brake. Then an employee activates the throttle advance switch, which automatically revs the engine to provide additional power so the garbage compactor can be used.
OSHA didn’t cite the company for disabling a safety device, but it did issue a citation for failure to maintain injury reports and logs.
However, Sellino’s widow alleged Pinto Brothers removed or bypassed a “neutral relay,” an electrical switch that requires the vehicle be in neutral for the compactor to activate. There was conflicting testimony presented about whether the company bypassed the relay.
But the law requires the situation to be viewed in the best light for the plaintiff (Sellino’s widow), so for the purposes of this case, the court had to assume Pinto Brothers removed the safety relay.
A truck engineering expert presented by Sellino’s widow concluded the primary reason for this incident was the deliberate bypass of the relay.
Pinto Brothers presented their own expert who testified the reason for the fatal injury was Sellino’s failure to put the truck in neutral before exiting the cab.
What’s an ‘intentional wrong?’
The appeals court noted that the standard for proving an “intentional wrong” that is outside the coverage of workers’ comp is “formidable,” under New Jersey law. Two conditions must be satisfied:
- The employer must have known that its actions would be substantially certain to result in injury or death to the employee, and
- The resulting injury and the circumstances that led to it must be more than a fact of life of employment in that particular industry.
Sellino’s widow argued the first condition was met because the relay was a safety device that had been bypassed, knowing doing so would create a situation in which there was a “substantial certainty” of a worker’s injury or death.
But the appeals court said the record didn’t support the argument that Pinto Brothers knew bypassing the relay created a substantial certainty of injury or death. The company may have known bypassing the relay created a risk of injury, but that falls short of the requirement to be an exception to workers’ comp coverage.
The court also said Sellino’s own negligence in leaving the truck in drive while exiting the cab was unquestionably a substantial factor that contributed to his death.
For those reasons, the appeals court let the lower court’s decision stand. Sellino’s widow would not be able to sue the company for negligent harm. Workers’ comp death benefits would be her exclusive remedy.
What do you think about the court’s decision? Let us know in the comments below.
(Estate of Samuel Sellino v. Pinto Brothers Disposal, Superior Court of New Jersey, Appellate Div., No. A-2064-12T1, 9/23/13)
