RAYMOND JOHNS VS. THOMAS WENGERTER VS. CITY OF LINDEN (L-0798-16, UNION COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2035-17T1

RAYMOND JOHNS,

Plaintiff-Appellant,

v.

THOMAS WENGERTER,

Defendant/Third-Party
Plaintiff-Respondent,

v.

CITY OF LINDEN,

Third-Party Defendant.
____________________________

Argued December 6, 2018 – Decided April 1, 2019

Before Judges Simonelli, Whipple and DeAlmeida.

On appeal from Superior Court of New Jersey, Law
Division, Union County, Docket No. L-0798-16.

Louis David Balk argued the cause for appellant (The
Balk Law Firm, PC, attorneys; Louis David Balk, of
counsel; Caroline E. Doyle, on the briefs).
 Gilbert Leeds argued the cause for respondent
(Schenck, Price, Smith & King, LLP, attorneys;
Gilberts Leeds, of counsel; Sandra Calvert Nathans, on
the brief).

PER CURIAM

Plaintiff Raymond Johns appeals from the December 1, 2017 order of the

Law Division dismissing his claims for damages for injuries he suffered as the

result of a prank by a coworker. We affirm.

I.

The following facts are derived from the record. Johns is employed by

the City of Linden (City) as a firefighter. On November 27, 2015, Johns was on

duty at the firehouse. He was in the men's bathroom when he sat down on a

toilet and heard and felt an explosion beneath him. Johns examined himself for

injury and discovered a significant amount of blood coming from the left side

of his scrotum, on which a blood blister had formed. The remnants of an

exploded bang snap, a small firework without a fuse that detonates when

compressed, was discovered on the toilet. After an investigation, defendant

Thomas Wengerter, a fellow City firefighter, admitted to having placed bang

snaps in various places in the firehouse as a prank, although he later denied

having placed a bang snap on the toilet. The record, however, contains

A-2035-17T1
2
significant evidence contradicting Wengerter's denial, including his apology to

Johns immediately after the incident.

Shortly after being injured, Johns left work to be treated at a medical

facility. He was diagnosed with a second-degree burn on his scrotum and a

contusion of the left testicle. He was thereafter placed off duty. He returned to

work on December 9, 2015. Johns suffered no lost wages, and the City paid all

his medical expenses. He did not file a workers' compensation claim. Wengerter

was suspended for the incident.

On March 8, 2016, Johns filed a complaint in the Law Division against

Wengerter, seeking damages for his injuries. Wengerter denied Johns's

allegations and alleged that his claims are barred by the Workers' Compensation

Act (WCA), N.J.S.A. 34:15-1 to -146, because Johns was injured by a coworker

while both were acting within the scope of their employment. Wengerter also

filed a third-party complaint against the City, alleging that it was responsible for

any damages awarded against Wengerter because it allowed a high degree of

pranking among on-duty firefighters.

After discovery, Wengerter and the City moved for summary judgment.

Johns opposed the motions. He argued that his claims are not barred by the

WCA because Wengerter was acting outside of the scope of his employment

A-2035-17T1
3
when he placed the explosive device on the toilet, and because Wengerter's acts

were intentional or grossly negligent.

On December 1, 2017, the trial court entered an order granting summary

judgment in favor of Wengerter and the City and dismissing Johns's complaint

with prejudice. In its oral opinion, the trial court concluded that Johns was

harmed as the result of a coworker's prank within the meaning of the "horseplay

or skylarking" provision of the WCA. N.J.S.A. 34:15-7.1. That statute provides

that

[a]n accident to an employee causing his injury or
death, suffered while engaged in his employment but
resulting from horseplay or skylarking on the part of a
fellow employee, not instigated or taken part in by the
employee who suffers the accident, shall be construed
to have arisen out of and in the course of the
employment of such employee and shall be
compensable under the act[.]

[N.J.S.A. 34:15-7.1.]

Thus, the court concluded, Johns's injuries are compensable under the WCA and

his claims against Wengerter are barred under N.J.S.A. 34:15-8 ("If an injury . .

. is compensable under this article, a person shall not be liable to anyone at

common law or otherwise on account of such injury . . . for any act or omission

occurring while such person was in the same employ as the person injured . . .

except for intentional wrong.").

A-2035-17T1
4
 The trial court also concluded that Wengerter's conduct was not an

"intentional wrong," within the meaning of N.J.S.A. 34:15-8. The court found

there was no genuine dispute that Wengerter did not have a subjective desire to

injure anyone or a substantial certainty that an injury would occur from his

prank.

This appeal followed. Johns argues that the trial court erred in granting

summary judgment to Wengerter because genuine issues of material fact exist

with respect to whether: (1) Wengerter was acting in the scope of his

employment when he set up the prank; and (2) Wengerter's acts constituted an

intentional wrong within the meaning of N.J.S.A. 34:15-8.1

II.

We review the trial court's decision granting summary judgment de novo,

using "the same standard that governs trial courts in reviewing summary

judgment orders." Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super.

162, 167 (App. Div. 1998). Rule 4:46-2(c) provides that a court should grant

summary judgment when "the pleadings, depositions, answers to interrogatories

and admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact challenged and that the moving party is

1
No appeal was taken from the dismissal of Wengerter's claims against the City.
A-2035-17T1
5
entitled to a judgment or order as a matter of law." "Thus, the movant must

show that there does not exist a 'genuine issue' as to a material fact and not

simply one 'of an insubstantial nature'; a non-movant will be unsuccessful

'merely by pointing to any fact in dispute.'" Prudential, 307 N.J. Super. at 167

(quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 529-30 (1995)).

Self-serving assertions unsupported by evidence are "insufficient to create

a genuine issue of material fact." Miller v. Bank of Am. Home Loan Servicing,

L.P., 439 N.J. Super. 540, 551 (App. Div. 2015) (alteration in the original)

(quoting Heyert v. Taddese, 431 N.J. Super 388, 414 (App. Div. 2013)).

"Competent opposition requires 'competent evidential material' beyond mere

'speculation' and 'fanciful arguments.'" Hoffman v. Asseenontv.Com, Inc., 404

N.J. Super. 415, 426 (App. Div. 2009) (quoting Merchs. Express Money Order

Co. v. Sun Nat'l Bank, 374 N.J. Super. 556, 563 (App. Div. 2005)). We review

the record "based on our consideration of the evidence in the light most

favorable to the parties opposing summary judgment." Brill, 142 N.J. at 523.

The WCA compensates employees for personal injuries caused "by

accident arising out of and in the course of employment[.]" N.J.S.A. 34:15-7.

The WCA authorizes benefits "irrespective of the fault of the employer or

contributory negligence and assumption of risk of the employee." Harris v.

A-2035-17T1
6
Branin Transp., Inc., 312 N.J. Super. 38, 46 (App. Div. 1998). In addition,

recovery under the statute is "the exclusive remedy for an employee who

sustains an injury in an accident that arises out of and in the course of

employment." McDaniel v. Lee, 419 N.J. Super. 482, 490 (App. Div. 2011)

(quoting Ahammed v. Logandro, 394 N.J. Super. 179, 190 (App. Div. 2007)).

The exclusive-remedy provision of the WCA applies where an employee

is injured by a coworker. N.J.S.A. 34:15-8. In McDaniel, we described the

three-part test to determine if an employee's claims against a co-worker are

barred by the WCA:

In order for the statute to apply as a bar to a suit against
a co-employee, three conditions must be satisfied: (1)
the plaintiff must have suffered a compensable injury;
(2) the plaintiff and defendant must have been co-
employees; and (3) the defendant must have been acting
in the course of his employment.

[419 N.J. Super. at 491 (quoting Daus v. Marble, 270
N.J. Super. 241, 246 (App. Div. 1994)) (internal
quotations omitted).]

The bar on recovery against a coworker does not apply, however, where an

employee is injured by the coworker's "intentional wrong." N.J.S.A. 34:15-8.

Having carefully reviewed Johns's arguments in light of the record and

applicable legal principles, we conclude that there is sufficient evidence

supporting the trial court's findings of fact and conclusions of law. Of the three

A-2035-17T1
7
parts of the test set forth in McDaniel, Johns disputes only the trial court's

conclusion with respect to factor three: that no genuine issue of material fact

exists with respect to whether Wengerter was acting within the scope of his

employment when he placed the bang snap on the toilet.

As noted above, the Legislature unequivocally provided that injuries

caused by "horseplay or skylarking on the part of a fellow employee, not

instigated or taken part in by the employee who suffers the accident, shall be

construed to have arisen out of and in the course of the employment of such

employee and shall be compensable under the act[.]" N.J.S.A. 34:15-7.1. The

plain language of the statute "emphasizes an intent to rectify the injustice of

withholding compensation from the innocent victim of the sportive act of

another . . . whether or not such act was part of a common practice of which the

employer knew or should have known[.]" McKenzie v. Brixite Mfg. Co., 34

N.J. 1, 7-8 (1961) (quotation omitted).

Johns produced no evidence that Wengerter's placement of the bang snap

on the toilet was anything other than an ill-conceived prank or "so far a

deviation" from work-related activity "as to constitute an abandonment of his

employment." Trotter v. Cty. of Monmouth, 144 N.J. Super. 430, 435 (App.

Div. 1976). To the contrary, the record establishes that Wengerter was

A-2035-17T1
8
accustomed to playing what he perceived to be harmless pranks on his coworkers

while they were in the firehouse between assignments. The placement of a bang

snap on a men's room toilet falls within the realm of coworker horseplay

intended to startle, but not injure, a coworker despite the unfortunate and

unintended result in this instance. Wengerter's acts took place at the workplace,

while Johns and Wengerter were on duty, and involved, in part, an employer -

owned fixture. We agree with the trial court that the express provisions of

N.J.S.A. 34:15-7.1 encompass Wengerter's acts and bar Johns's claims.

We do not agree with Johns's argument that the trial court erred by

concluding that no genuine dispute exists with respect to whether Wengerter's

acts were intentional within the meaning of the WCA. An employee commits

an "intentional wrong" under N.J.S.A. 34:15-8 when he acts with "substantial

certainty" that harm will occur. Millison v. E.I. Du Pont de Nemours & Co.,

101 N.J. 161, 179 (1985). Under the WCA, "intentional wrong" is not

"equatable with 'gross negligence,' or similar concepts importing constructive

intent." Bryan v. Jeffers, 103 N.J. Super. 522, 523 (App. Div. 1968). Rather, a

"deliberate intention" to injure must be shown. Id. at 523-24.

[U]nder Millison, in order for an employe[e]'s act to
lose the cloak of immunity of N.J.S.A. 34:15–8, two
conditions must be satisfied: (1) the employe[e] must
know that his actions are substantially certain to result

A-2035-17T1
9
 in injury or death to the employee, and (2) the resulting
injury and the circumstances of its infliction on the
worker must be (a) more than a fact of life of industrial
employment and (b) plainly beyond anything the
Legislature intended the [WCA] to immunize.

[Laidlow v. Hariton Mach. Co., 170 N.J. 602, 617
(2002).]

The record is devoid of evidence that Wengerter acted with substantial

certainty of the risk of injury ultimately suffered by Johns. Wengerter produced

evidence that bang snaps had regularly been used in pranks at the firehouse

without inflicting physical injuries. There is no suggestion in the record that

Wengerter was aware that the particular circumstances of the prank that injured

Johns was substantially certain to result in a physical injury. Nor is there a

suggestion in the record that Wengerter intentionally set out to harm Johns or

anyone else with his ill-advised plan to play pranks while he was at work. In

addition, the horseplay or skylarking provision of the WCA evidences a

legislative intent to make injuries from such activities compensable under the

statute.

Affirmed.

A-2035-17T1
10