SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3858-14T4

MEDWIN SOTO,

Plaintiff-Appellant,

v.

ICO POLYMERS NORTH AMERICA,

Defendant-Respondent,

and

J. PETRUCCI CO., INC., IRON HILL

CONSTRUCTION, INC., COMROE ADVANCED

POWER, INC., ALL-STATE FIRE PROTECTION,

INC. and OVERHEAD DOOR CO. OF ALLENTOWN,

Defendants.

____________________________

Argued November 30, 2016 – Decided

Before Judges Fuentes, Simonelli and Gooden 

Brown. 

On appeal from the Superior Court of New 

Jersey, Law Division, Hunterdon County, Docket 

No. L-0467-10.

Robert G. Daroci argued the cause for 

appellant.

Amanda J. Sawyer argued the cause for 

respondent (Methfessel & Werbel, attorneys; 

Edward L. Thornton, of counsel and on the 

brief; Ms. Sawyer, on the brief).

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." 

Although it is posted on the internet, this opinion is binding only on the 

parties in the case and its use in other cases is limited. R. 1:36-3.

October 11, 2017
2 A-3858-14T4

The opinion of the court was delivered by 

FUENTES, P.J.A.D.

In most cases, employees who are injured in a work-related 

accident may only seek compensation for their injuries under the 

Worker's Compensation Act (the Act), N.J.S.A. 34:15-1 to -128.5. 

The Act allows an employee to bring a traditional common law tort 

cause of action against the employer only in cases in which the 

employee's injuries result from the employer's "intentional 

wrong." N.J.S.A. 34:15-8; see also Laidlow v. Hariton Mach. Co., 

170 N.J. 602, 617 (2002). 

Plaintiff Medwin Soto was severely injured in a work-related 

accident. He filed this civil action in the Law Division against 

his former employer, defendant ICO Polymers North America (ICO), 

to recover compensatory and punitive damages.1 The trial court 

granted defendant's summary judgment motion and dismissed 

plaintiff's complaint based on the immunity from civil liability

provided to employers under the Act. We reverse.

Considering the facts in the light most favorable to 

plaintiff, Rule 4:46-2(c), we are satisfied a rational jury can 

find that at the time of the accident, defendant was aware that 

the conditions at the Asbury facility exposed employees like 

 

1 Plaintiff received standard workers' compensation benefits from 

ICO's Workers' Compensation insurance carrier.
3 A-3858-14T4

plaintiff to a high risk of serious injury or death. A jury can 

also find that the accident that caused plaintiff's injuries 

resulted from defendant's intentional decision to abate electrical 

code violations found in the Asbury facility, without installing

the specialized lighting and wiring required in a Class II, 

Division 2 hazardous facility, like the one in Asbury. Finally, 

the jury may reasonably infer that defendant's failure to make the 

required specialized electrical repairs was part of its overall 

cost-savings plan to relocate the Asbury facility to Allentown, 

Pennsylvania.

In this light, the Law Division erred in granting defendant's 

motion for summary judgment and dismissing plaintiff's complaint 

as a matter of law. Our legal analysis is informed by the following 

facts, which we derived from the record developed by the parties 

before the Law Division. 

I

Defendant ICO is a global company engaged in the business of 

grinding plastic pellets into powder. This pulverization process 

creates a fine powdered dust that is both a product and a byproduct 

of defendant's milling operations. Many of the materials 

pulverized or blended at defendant's facilities are highly 

explosive. At all times relevant to this case, defendant's plant 
4 A-3858-14T4

in Asbury was classified as a Class II, Division 2 "hazardous 

location." 

On July 2, 2007, approximately one year before plaintiff's 

accident, accumulations of combustible dust ignited in Building 

One in the Asbury facility. The explosion injured one employee 

and caused significant damage to the facility. Following the 

incident, a compliance officer from the Occupational Safety and 

Health Administration (OSHA) observed 1.5 to 2 inches of dust 

accumulation atop the facility's masonry walls and ceiling beams. 

OSHA cited defendant for violation of 29 C.F.R. 1910.22(a)(1), 

finding defendant's "[p]lace(s) of employment were not kept clean 

and orderly, or in a sanitary condition." OSHA also cited 

defendant for violation of 29 C.F.R. 1910.307(b), stating that 

defendant's "[e]quipment, wiring methods, and installations . . . 

were not intrinsically safe, or approved for the hazardous . . . 

location[.]" Defendant entered into a stipulation of settlement 

through which OSHA assessed a total of $7500 in penalties and 

defendant affirmatively stated that it had abated all violations. 

Defendant assured OSHA that going forward, it would comply with 

all of the requirements of the Occupational Safety and Health Act. 

On August 15, 2007, ICO President Eric Parsons sent an email 

to senior managers in which he acknowledged that in accordance 

with regulations promulgated by OSHA and the National Electrical 
5 A-3858-14T4

Code, the Asbury plant's classification required special 

electrical and wiring methods. Parsons expressed particular 

concern for the danger associated with the presence of combustible 

dust in a Division 2 facility like the one in Asbury. Parsons 

noted that:

A Division 2 location is an area in which:

1) combustible dust, due to abnormal 

operations, may be present in the air in 

quantities sufficient to produce explosive or 

ignitable mixtures or

2) where combustible dust accumulations are 

present but are normally insufficient to 

interfere with the normal operation of 

electrical equipment or other apparatus but 

could as a result of infrequent malfunction 

of handling or processing equipment become 

suspended in the air or

3) which combustible dust accumulations on, 

in, or in the vicinity of the electrical 

equipment could be sufficient to interfere 

with the safe dissipation of heat from the 

electrical equipment or could be ignitable by 

abnormal operation or failure of electrical 

equipment.

Parsons admonished all ICO senior level staff that federal 

and state regulators "have become much more educated on the hazards 

associated with dust in [the] last couple of years." The 

regulators would be making random audits "to determine the level 

of compliance." Parsons advised that ICO planned to upgrade its 

facilities. He ended the email by noting that the facility in 
6 A-3858-14T4

Asbury, New Jersey had installed, or was in the process of 

installing equipment for "nuisance dust collection in the ambient 

and cryo areas." Parsons emphasized that: 

accumulations must be kept below 1/16" and if 

accumulations exceeds 1/16" systems must be

shut down and cleaned. Nuisance dust 

collection with pickup points in the areas 

most likely to leak dust will be critical to 

keeping dust concentrations to a minimum.

The information above is not a complete 

description of the new requirements but a 

taste of the big ticket items that will have 

to be addressed and resolved. This will need 

to be considered when preparing your capital 

budgets for 2008.

In a letter dated November 29, 2007, Paul Castiglia, 

defendant's Facility Safety Coordinator of the Asbury facility, 

formally informed an inspector of the New Jersey Department of 

Community Affairs that defendant: 

does not plan on refurbishing building number 

1 that was damaged by the fire [on] July 2, 

2007. It will be designated as a warehouse 

and not for manufacturing. The designation 

of a hazard area [of] Class II Division 2, 

will no longer be in effect, thus not 

requiring an upgrade to the sprinkler system 

to meet the requirements of a hazardous area.

From the July 2007 fire to the July 26, 2008 accident, the 

evidence shows that the measures taken by management staff at the 

Asbury facility did not reflect any attempt to adhere to the safety 

standards Parsons established in his August 15, 2007 email. 
7 A-3858-14T4

Specifically, the standards included keeping dust accumulations 

below 1/16 of an inch. The deposition testimonies of Joseph 

Stangle, Production Manager and Shipping and Receiving Manager, 

Frederick Milford, Third Shift Supervisor, and Stuart Hillyer, 

Working Supervisor, all consistently maintain that no changes or 

upgrades actually occurred in the Asbury facility from July 2007 

to July 2008.

Defendant also did not produce records documenting 

housekeeping measures, employee training sessions, or completed 

checklists that indicate employees were apprised of the importance 

of avoiding dust accumulation and thereafter implemented allegedly 

revised cleaning procedures. Defendant was only able to produce 

materials documenting that it conducted four safety meetings in 

the year following the July 2, 2007 explosion. 

Kyle Kester began working as the Plant Manager at the Asbury 

facility in September 2000. He was the Plant Manager during both 

the July 2007 accident and plaintiff's July 26, 2008 accident. He 

continued in this capacity until the facility closed down. Kester 

makes clear in his deposition testimony that he did not have any 

input in drafting defendant's housekeeping policy, which was 

updated on August 9, 2007. The policy required that records be 

kept showing: (1) the date housekeeping inspections were 

conducted; (2) identification of areas of concern; (3) and what 
8 A-3858-14T4

type of corrective action was taken. The inspector was required 

to sign and date the document. As Plant Manager, Kester did not 

have any documents attesting to the implementation of the policy. 

In fact, Kester could not provide any information about whether 

this housekeeping policy was even implemented.

Keith Haddock, ICO Environmental Health and Safety 

Coordinator, testified that he did not receive any training or 

instructions on safety protocols. On his own initiative, he 

conducted independent research online. Third Shift Supervisor 

Frederick Milford testified that it was possible that the four 

safety meetings referenced in discovery produced by defendant were 

the only safety meetings defendant conducted between July 2007 and 

July 2008.

Plaintiff also produced the deposition testimony of several 

individuals who were not employed by ICO, but were nevertheless 

able to observe large amounts of dust while visiting the Asbury 

facility following the July 2, 2007 explosion. Jacob Smith, 

Project Manager for Iron Hill Construction Management Co., visited 

the facility several times before plaintiff's accident in July 

2008. Smith testified that each time he was at the facility, 

Building Three was covered in dust. Comroe Advanced Power, Inc.

Foreman William Jacquillard also visited Building Three in 2008. 
9 A-3858-14T4

He estimated that dust accumulations were more than one inch deep 

in certain locations:

Half inch, three quarters of an inch. I never 

actually measured it, but it varied. In some 

places it was a quarter of an inch. In some 

places it might have been more than an inch. 

It depends on what they would do in that area. 

A lot of it was built up I guess after a period 

of time on the purlins and stuff. It's not 

something that happens in a short period of 

time. It builds up in the heavy areas.

Parsons testified that ICO began constructing a new facility 

in Allentown, Pennsylvania with the intent of closing the Asbury 

facility. The record shows that the electrical equipment installed 

at ICO's Allentown facility was sealed, explosion-proof, and 

designed to minimize contact between wiring and combustible dust. 

By contrast, the wiring at the Asbury facility did not have this 

kind of special insulation. The whole facility was electrified 

with conventional wire. While ICO's newer facility was constructed 

in compliance with Class II, Division 2 requirements, plaintiff 

presented competent evidence that ICO "continued production at its 

Asbury facility with complete disregard of its Class II, Division 

2 designation."2

 

2 In contrast to the emphatic statements he made in his August 15, 

2007 email, Parson testified at his deposition that he was not 

certain whether the Asbury facility ever received a Class II, 

Division 2 designation classification.
10 A-3858-14T4

Thus, despite the assurances and commitment to safety 

protocols set forth in the settlement with OSHA and the objectives 

described in Parson's email, the record contains sufficient 

competent evidence from which a jury may infer that ICO 

intentionally failed to adhere to Class II, Division 2 electrical 

requirements at the Asbury facility as part of its decision to 

relocate to a modern, cost efficient facility.

II

On July 14, 2008, twelve days before plaintiff's accident, 

the New Jersey Division of Codes and Standards shut down ICO's 

Asbury facility for fire code violations that included a nonfunctioning sprinkler system, non-functioning exit door, 

electrical work installed without current protection, and failure 

to provide exit signs above exterior doors. The New Jersey 

Department of Community Affairs declared the building "unsafe for 

human occupancy" and prohibited any individuals from occupying the 

building "until the structure is rendered safe and secure."

To remedy the electrical code deficiencies, ICO contracted 

with Iron Hill Construction, who in turn subcontracted with Comroe 

Advanced Power, Inc. Despite the mandates of ICO's Contractor 

Safety Program, defendant failed to instruct its contractor or its 

subcontractor to install the necessary lighting and wiring in 

accordance with Class II, Division 2 requirements. 
11 A-3858-14T4

Gregory Ruhnke, the principal owner of Comroe Advanced Power, 

Inc., testified in his deposition that no one from ICO ever 

indicated to him that any of the electrical work at the Asbury 

facility needed to be done under special requirements because of 

the nature and classification of the facility. The Comroe invoice 

documenting the work states that it: "provided new temporary 

emergency lighting and made existing emergency lighting 

operational as instructed by New Jersey code officials." Finally, 

Comroe's foreman William Jacquillard testified at his deposition 

that no one from ICO informed him that the area where the explosion 

occurred that injured plaintiff was classified as a Class II, 

Division 2 hazardous location. Jacquillard stated:

. . . I was told that they were moving. As 

far as what I was told, I didn't think the 

company was going to be functioning there. It 

was so that they could get there stuff out and 

get the building back open so they could move 

out. I didn't - - I was under the impression 

by what I was told that there were not going 

to function as a company there anymore. So, 

I don't know if any of that applies to your 

question, but that's what I was told, so - -

Q. Are you familiar with some of those special 

methods that I just mentioned to you, the dust 

ignition proof and dust tight, are you 

familiar with those things?

A. Yes.

Q. Were any of those special wiring methods 

employed or utilized by Comroe for any of the 
12 A-3858-14T4

electrical work or wiring work that was done 

at ICO between July 14, 2008 and July 26, 2008?

A. No, sir.

In a letter dated July 15, 2008, Parsons notified the 

Department of Community Affairs that ICO would be ceasing 

production at its Asbury facility "on or before October 15, 2008." 

In a Supplementary Investigation Report filed by Detective Kristen 

Larsen of the Hunterdon County Prosecutor's Office on July 29, 

2008, it is noted that ICO was permitted to reopen the Asbury 

plant on July 17, 2008.

On July 26, 2008, at approximately 5:52 a.m., a powerful dust 

explosion occurred in Building Three of ICO's Asbury facility. 

Plaintiff recalls experiencing two blasts within quick 

succession,3 at least one of which propelled burning powders onto 

his body and clothing. The fire quickly spread throughout the 

building's interior. The Bloomsbury Fire Department did not gain 

control of the fire until 8:14 a.m. Fire Departments from the

neighboring communities of Stewartsville, Lebanon, High Bridge, 

Quakertown, Clinton, Pattenburg, and Asbury worked in unison to 

provide additional assistance. 

 

3 According to a report prepared by plaintiff's expert to determine 

the origin of the fire: "A secondary explosion typically occurs 

when trapped dust is shaken loose in a super heated environment."
13 A-3858-14T4

Plaintiff sustained second and third degree burn-related 

injuries over twelve percent of his body. Another ICO employee 

received superficial burns and refused medical treatment at the 

scene. New Jersey State Police documented extensive damage to the 

building's structure. Principal Fire Inspector Charles F. Wian 

deemed the facility an imminent threat and immediately ordered 

that it be shut down. ICO never resumed operations at the Asbury 

location.

Several governmental agencies investigated the explosion. 

The New Jersey State Police and the Hunterdon County Prosecutor's 

Office investigated to determine if there was any criminal 

activity. The New Jersey Department of Community Affairs and OSHA 

investigated to determine whether the accident was caused, in 

whole or in part, by violations of state and/or federal workplacesafety laws. Plaintiff's counsel also retained a number of 

professionals and experts in this field who provided reports 

containing their opinions as to the cause of the explosion and 

fire.

Detective Jessica Melendez of the Hunterdon County 

Prosecutor's Office opined that the fire's "exact point of origin 

[could] not be determined." However, Detective Melendez 

acknowledged the possibility that "the electrical wiring for the 

newly installed exit signs" could have initiated the explosion. 
14 A-3858-14T4

Detective Michael Agens of the New Jersey State Police, Arson/Bomb 

Unit, similarly opined that the fire's ignition source was 

undetermined. He was unable to rule out a "multitude of ignition 

sources[.]" 

Kenneth Kendrac, a certified fire investigator retained by 

plaintiff's counsel, opined that the fire originated in the area 

where Comroe had previously installed exit signs and emergency 

lights. As Kendrac explained in his written report:

Based upon my review of all materials 

including investigation reports, photographs, 

deposition testimony and based on a process 

of elimination, I have concluded that the 

obvious source of ignition for the dust 

explosion on July 26, 2008 was the newly 

installed emergency lighting/exit sign that 

was performed by Comroe in the days prior to 

the explosion.

A report prepared by plaintiff's other expert, Duvall Professional 

Services, P.C., concurs with the conclusions reached by Kendrac:

The following report will show that the 

electrical work performed just prior to the 

fire and explosion was the probable cause, and 

that the work was performed in violation of 

applicable codes. . . . Review of the 

documentation and analysis of the photographs 

. . . reveal a point of origin of the fire at 

the exit sign over the exit door next to the 

electrical switchgear room. The photographs 

clearly show improper and unsafe equipment and 

improper installation.

Investigators have characterized the incident as a dust 

explosion. After the fire was extinguished, investigators noted 
15 A-3858-14T4

heavy coatings of plastic dust in Building Three. State Police 

Detective Varick observed that dust was "[p]retty much on every 

surface" inside the facility. Fire Sub-code Official Jerry Velardi 

inspected the facility on July 28, 2008. He also noted that "[t]he 

entire facility was covered with dust." Principal Fire Inspector 

Charles Wian stated in his deposition that he observed dust "[o]n 

the sprinkler heads, the floor, the walls, the locker room[,]" and 

"[u]nder the office area." Finally, OSHA's investigation revealed 

that the fireball which injured plaintiff formed when Class II 

dusts ignited within the facility. 

On December 9, 2008, OSHA cited ICO for a repeat violation 

of 29 C.F.R. 1910.22(a)(1). OSHA found that ICO's place of 

employment was "not kept clean and orderly, or in a sanitary 

condition[,]" and that as a result, "[m]icronized powders" were 

allowed to accumulate and ignite, thereby injuring plaintiff. In 

a subsequent stipulation of settlement, OSHA agreed to assess 

penalties in the amount of $12,500.

III

We review a grant of summary judgment applying the same 

standard used by the trial court. Steinberg v. Sahara Sam's Oasis, 

LLC, 226 N.J. 344, 366 (2016). That standard is well-settled.

[I]f the evidence of record—the pleadings, 

depositions, answers to interrogatories, and 

affidavits—"together with all legitimate 
16 A-3858-14T4

inferences therefrom favoring the non-moving 

party, would require submission of the issue 

to the trier of fact," then the trial court 

must deny the motion." R. 4:46-2(c); see

Brill v. Guardian Life Ins. Co. of Am., 142 

N.J. 520, 540. On the other hand, when no 

genuine issue of material fact is at issue and 

the moving party is entitled to a judgment as 

a matter of law, summary judgment must be 

granted. R. 4:46-2(c); see Brill, supra, 142 

N.J. at 540.

[Ibid.]

The Act represents our State's "historic trade-off" to 

provide employees guaranteed and swift reduced compensation 

following a workplace injury, regardless of fault, in exchange for 

relinquishing certain rights. Millison v. E.I. Du Pont de Nemours 

& Co., 101 N.J. 161, 174 (1985). A party who expressly or 

implicitly accepts the Act's provisions is barred from pursuing 

common law remedies unless the party can show that his or her 

employer committed an "intentional wrong." Id. at 169; see

N.J.S.A. 34:15-8. Although the Legislature did not intend the 

workers' compensation system to insulate employers from common law 

liability for all willful misconduct short of deliberate assault 

and battery, the scheme contemplates that as many claims as 

possible be processed exclusively within the Act. Millison, supra, 

101 N.J. at 177.

In order to show an intentional wrong, a plaintiff must show 

his or her employer acted with "substantial certainty" that injury 
17 A-3858-14T4

or death would result. Van Dunk v. Reckson Assocs. Realty Corp., 

210 N.J. 449, 451 (2012). "[M]ere knowledge and appreciation of 

a risk" is insufficient. Millison, supra, 101 N.J. at 179. For 

this reason, the finding of an OSHA violation in the wake of a 

workplace accident is not dispositive of whether an employer 

committed an intentional wrong. Laidlow, supra, 170 N.J. at 622–

23. Such a finding is one factor to be considered among a totality 

of the circumstances. Van Dunk, supra, 210 N.J. at 469. 

In addition to showing an employer's knowledge that its 

actions were substantially certain to result in injury or death, 

the resulting injury must be "more than a fact of life of 

industrial employment" and "plainly beyond anything the 

Legislature [would have] intended [the Act] to immunize." Id. at 

462 (quoting Laidlow, supra, 170 N.J. at 617). Deciding whether 

the so-called "context prong" is met is solely a judicial function. 

Laidlow, supra, 170 N.J. at 623. Thus, a trial court should deny 

an employer's motion for summary judgment if the substantial 

certainty standard presents a jury question and the court concludes 

that the plaintiff's allegations would meet the context prong if 

proven true. Ibid.

In Laidlow, the Court was asked to decide whether an employer 

committed an intentional wrong when it deceived safety inspectors 

by disengaging and re-engaging the safety mechanisms on a dangerous 
18 A-3858-14T4

piece of equipment. Id. at 606. In 1979, defendant installed a 

safety guard on its rolling mill. Id. at 608. From that date 

until the plaintiff's injury in 1992, the employer kept the guard 

in place only when OSHA inspectors were physically present at its 

plant. Ibid. Prior to the injury at issue, two employees reported 

incidents in which their hands were nearly pulled into the machine. 

Id. at 607–08. The plaintiff's injury occurred in a manner similar 

to that of the previously reported incidents. Ibid. In 

determining that Millison's "substantial certainty" test had been 

met, the Court cited "the prior close-calls, the seriousness of 

any potential injury that could occur, [the plaintiff's] 

complaints about the absent guard, and the guilty knowledge of 

[defendant] as revealed by its deliberate and systematic deception 

of OSHA." Id. at 622.

In Mull v. Zeta Consumer Products, 176 N.J. 385 (2003), the 

plaintiff was injured while attempting to repair a machine at a 

plastic bag manufacturing facility. Id. at 387. Prior to the 

plaintiff's injury, OSHA had cited the employer for safety 

violations. Id. at 392. The defendant nevertheless removed safety 

devices from the machine, causing another employee to injure her 

hand. Ibid. In holding that the defendant's conduct satisfied 

Millison's "substantial certainty" standard, the Court found the

defendant's knowledge of prior accidents, plaintiff's safety 
19 A-3858-14T4

concerns, and OSHA citations could create a substantial certainty 

of injury. Ibid. With respect to Millison's context prong, the 

Court concluded that "[t]he Legislature would not have considered 

the removal of the winder's safety devices, coupled with the 

employer's alleged knowledge of the machine's dangerous condition 

due to prior accidents and employee complaints, in addition to 

OSHA's prior violation notices, to constitute simple facts of 

industrial life." Id. at 392–33 (quoting Laidlow, supra, 170 N.J.

at 622).

In Crippen v. Central Jersey Concrete Pipe Company, 176 N.J.

397 (2003), the plaintiff's work involved loading sand and gravel 

into hoppers. Id. at 399. While performing his job, the plaintiff 

fell into a hopper and suffocated. Id. at 400. OSHA had previously 

cited the defendant for several violations which had yet to be 

remedied at the time of the plaintiff's accident. Id. at 401–03. 

Furthermore, the defendant's Environmental Health and Safety 

Manager admitted during discovery that the hazardous conditions 

noted in OSHA's citations could have contributed to the plaintiff's 

death. Id. at 403. 

The Court held that "a jury reasonably could conclude that 

defendant had knowledge that its deliberate failure to cure the 

OSHA violations would result in a substantial certainty of injury 

or death to one of its employees." Id. at 409. The Court also 
20 A-3858-14T4

found that Millison's context prong was satisfied as a matter of 

law, in large part because the defendant deliberately ignored OSHA 

violations and subsequently attempted to deceive OSHA into 

believing that the violations had been abated. Id. at 411. In 

this regard, the Court stated that the defendant "effectively 

precluded OSHA from carrying out its mandate to protect the life 

and health of [the defendant's] workers." Ibid. (quoting Laidlow, 

supra, 170 N.J. at 621).

Most recently, in Van Dunk, the Court held that an employer's 

reckless conduct at a construction site failed to satisfy the 

substantial certainty of injury or death required for the 

commission of an intentional wrong. Van Dunk, supra, 210 N.J. at 

471. However, the Court distinguished the salient facts in that 

case from the more egregious circumstances which it had previously 

found to defeat an employer's motion for summary judgment:

What distinguishes Millison, Laidlow, 

Crippen, and Mull from the present matter is 

that those cases all involved the employer's 

affirmative action to remove a safety device 

from a machine, prior OSHA citations, 

deliberate deceit regarding the condition of 

the workplace, . . . knowledge of prior injury 

or accidents, and previous complaints from 

employees. . . . In particular, this Court 

was mindful in those cases of the durational 

aspect of the employer's intentional 

noncompliance with OSHA requirements or other 

demonstrations of a longer-term decision to 

forego required safety devices or practices.
21 A-3858-14T4

[Ibid. (emphasis added) (citations omitted).]

Our Supreme Court's history of wrestling with the nuances of 

this standard, as applied in a variety of factual settings, has 

bequeathed us the analytical tools to guide our discussion of the 

key facts in this case. Here, the motion judge erred because he 

failed to give plaintiff the benefit of all legitimate inferences

that can be drawn from the evidence amassed by the parties. When 

viewed in the light most favorable to plaintiff, the evidence can 

support a jury verdict finding defendant intentionally exposed 

plaintiff to a work environment that carried substantial certainty 

of injury or death. The evidence shows defendant failed to take 

the corrective action required to render the Asbury facility in 

compliance with the standards articulated by its own President, 

Eric Parsons, as reflected in his August 15, 2007 email.

Defendant affirmatively promised to abate any OSHA violations 

outstanding at the time of the July 2, 2007 explosion. However, 

the evidence shows defendant continued to allow combustible dust 

to accumulate in hazardous amounts on various surfaces of the 

Asbury facility. Defendant repeatedly asserted that it would 

improve housekeeping by implementing a hazard communication system 

and increasing the frequency of its employee safety training 

sessions. Conspicuously missing from the record, however, is 
22 A-3858-14T4

documentary evidence showing these safety protocols were actually 

implemented and consistently followed.

 The record is also unclear as to whether defendant did 

anything to upgrade its two-tiered dust collection system between 

the explosions on July 2, 2007 and July 26, 2008. Defendant only 

described its nuisance dust system and its central vacuum system, 

both of which were in place at the time of the July 2, 2007 

explosion. A reasonable jury can find defendant deliberately 

deceived OSHA into believing these improvements were being 

implemented, when in fact defendant had already made the business 

decision to shut down the Asbury facility and relocate to 

Allentown, Pennsylvania. Finally, plaintiff produced sufficient 

evidence from which a jury can infer that defendant's decision to 

install non-conforming electrical equipment days before the 

explosion that caused plaintiff's injuries is directly related to 

the relocation. Stated differently, a jury can find defendant 

engaged in a cost-benefit analysis and decided it was more 

economically sound to place plaintiff at substantial risk of 

serious injury or death than to repair the Asbury facility's 

electrical system in accordance with the enhanced safety 

standards.
23 A-3858-14T4

For these reasons, we reverse the trial court's decision to 

grant defendant's motion for summary judgment and remand this case 

for further proceedings consistent with this opinion.

Reversed and remanded. We do not retain jurisdiction.