ESTATE OF OSCAR PORTILLO VS. BEDNAR LANDSCAPING (L-1770-18 and L-1787-18, MORRIS 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NOT FOR PUBLICATION WITHOUT THE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-3110-19

ESTATE OF OSCAR PORTILLO
by the Administrator Ad
Prosequendum JUAN CARLOS
MONTOYA,

Plaintiff-Appellant,

v.

BEDNAR LANDSCAPING
SERVICES, INC., CHRISTOPHER
LIBERATORE, PETER LIBERATORE,
and KEITH BEDNAR,

Defendants-Respondents.
_________________________________

ESTATE OF SELVIN ZELAYA
by the Administratrix Ad Prosequendum
MARIA MARTA RIVERA RODRIGUEZ
and MARIA MARTA RIVERA
RODRIGUEZ, INDIVIDUALLY,

Plaintiff-Appellants,

v.

BEDNAR LANDSCAPING
SERVICES, INC., CHRISTOPHER
LIBERATORE, PETER LIBERATORE,
and KEITH BEDNAR,

Defendants-Respondents.
_________________________________

Argued May 3, 2021 – Decided July 8, 2021

Before Judges Sabatino, Currier and DeAlmeida (Judge
Sabatino concurring).

On appeal from the Superior Court of New Jersey, Law
Division, Morris County, Docket Nos. L-1770-18 and
No. L-1787-18.

Evan M. Padilla argued the cause for appellant Estate
of Portillo (Zajac & Arias, LLC, attorneys; Evan M.
Padilla, of counsel and on the joint briefs).

David M. Fried argued the cause for appellant Estate of
Zelaya (Blume, Forte, Fried, Zerres & Molinari, PC,
attorneys; David M. Fried, of counsel and on the joint
briefs; Brian E. Mahoney, on the joint briefs).

Aldo J. Russo argued the cause for respondents (Lamb
Kretzer, LLC, attorneys for respondent Bednar
Landscaping Services, Inc.; Methfessel & Werbel,
attorneys for respondents Christopher Liberatore, Peter
Liberatore and Keith Bednar; Robert D. Kretzer and
Paul J. Endler, on the joint brief).

PER CURIAM

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 In these consolidated wrongful death actions, the Estates of Oscar Portillo

and Selvin Zelaya 1 instituted suit against their decedents' employer after

decedents were killed when a trench collapsed on top of them while installi ng a

drainage system. Because plaintiffs have not demonstrated an intentional wrong

required to vault the statutory bar to a third-party action under the Workers'

Compensation Act (WCA), N.J.S.A. 34:15-8, we affirm the Law Division's grant

of summary judgment to defendants.2

The owners of a private residence hired defendants to install a French

drain along the exterior perimeter of their home. Keith Bednar (Bednar)

designed the project. He testified during his deposition that he learned how to

perform drainage work by observing others and through his years of hands-on

experience.

Zelaya was the foreman on the job site and supervised the other

employees. He had worked on three or four previous drainage projects requiring

the excavation of a trench that was deeper than five feet. On this job, Bednar

1
We refer to the Estates and decedents collectively as "plaintiffs."
2
Defendant Keith Bednar founded Bednar Landscape Services, Inc. (improperly
pled as Bednar Landscaping) more than twenty years ago and is the company's
president. Peter and Christopher Liberatore serve as the company's vice
president and secretary respectively. We refer to them collectively as
defendants.
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3
instructed Zelaya to dig a nine-foot-deep, 300-foot-long trench, approximately

two to three feet in width.

Bednar estimated his business had excavated trenches deeper than five

feet five to eight times, stating "[i]t wasn't something we did every day."

Defendants had never utilized a trench box, wood shoring, or any other method

to secure the sides of the trenches on any of the prior projects or on this job.3

Bednar testified he had gone into unprotected trenches that were deeper than his

height "[t]en times" in his lifetime. He said it never occurred to him that the

trench could collapse or cause injury to him or others working in the trench. He

also stated he never thought about using a trench box.

Bednar testified that neither he nor any other officer or employee of the

company had taken an Occupational Safety and Health Administration (OSHA)

safety course before decedents' accident. Following these events, all of the

foremen took safety courses.

3
Bednar did recall the business using a trench box many years earlier when an
employee was digging a hole in very sandy soil to fill with gravel. The employee
informed Bednar that he could only dig a certain amount before the sand would
start to cave in at the bottom and collect around his ankles. The employee
recommended the use of a "trench thing[] . . . ." Bednar was not present at the
site, did not know where the employee obtained the trench box, and did not see
it in use.
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 Decedents' accident occurred during the second week of work on the job.

Zelaya operated the excavating machine used to dig the trench. When the

desired depth was reached, he and other employees descended into the trench

with hand tools and laid down pipe and gravel. Because there had been some

rain, pumps evacuated groundwater from the trench while the workers installed

the pipe.

The French drain was installed in sections. Once the twelve-foot drainage

pipe was set in place, the open trench was backfilled, and an adjoining section

would be dug.

Bednar stated he went to the job site only when Zelaya asked him to come.

He recalled being on site three days before the day of the accident and observing

his employees in the nine-foot-deep trench. Christopher Liberatore went to the

job site approximately five times solely to deliver gravel. Peter Liberatore

handled all of the office work.

On October 1, 2014, at approximately 3:00 p.m., Portillo and a co-worker

were working in the trench when it collapsed on Portillo.4 After Zelaya climbed

into the trench to assist Portillo, the trench collapsed a second time and Zelaya

4
The co-worker in the trench with Portillo estimated the trench was fourteen
feet deep in the area where they were working.
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was buried in the falling soil. Portillo and Zelaya were pronounced dead at the

scene.

In its investigation following the accident, OSHA identified multiple

violations of safety standards. Most pertinent, OSHA issued a willful violation

citation because "[w]orkers installing a French drain system in a trench were

exposed to crushing injuries in the [nine] to [thirteen] foot deep trench which

was not adequately sloped or protected by shields or shoring." 29 C.F.R.

§1926.652(a)(1) requires an employer to protect its workers from a trench

collapse by using sloping, shoring, or trench boxes in a trench deeper than five

feet.

The Morris County Prosecutor's Office also conducted an investigation.

State v. Bednar Landscape Servs., No. A-4676-17 (App. Div. July 3, 2019) (slip

op. at 2). The corporate principals were diverted to pre-trial intervention. Id. at

1. On January 18, 2018, Bednar Landscape waived indictment and pled guilty

under an accusation charging one count of fourth-degree causing or risking

widespread injury or damage, N.J.S.A. 2C:17-2(d)(1). Ibid. The factual basis

for the corporate plea was provided in a resolution signed by Keith Bednar, as

president. Ibid. The resolution was provided to the court by Bednar Landscape's

agent and counsel.

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 The corporate entity was sentenced to two years' probation5 and ordered

to pay $50,000 in restitution to decedents' families. Ibid. Bednar Landscape

also paid $77,000 in fines pursuant to its settlement agreement with OSHA .

Ibid.

Bednar Landscape requested a civil reservation under Rule 3:9-2. The

State did not object. However, the Estate of Portillo intervened and objected to

the entry of a civil reservation. Ibid.

After hearing the parties' arguments, the trial court found Bednar

Landscape had demonstrated good cause for the entry of a civil reservation. Id.

at 1. We affirmed, finding it had shown good cause because the civil reservation

was necessary to protect the corporation from financial ruin. Id. at 2. Relying

on State v. McIntyre-Caulfield,6 we noted "good cause may be shown to grant a

reservation where the civil consequences of a plea may wreak devastating

financial havoc on a defendant." Ibid. (internal quotation marks and citations

omitted). We stated further that here, where the insurance carrier might disclaim

coverage without a civil reservation in place, Bednar Landscape had

5
Probation monitored the required payments.
6
455 N.J. Super. 1 (App. Div. 2018).
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demonstrated the "existence of a good faith fear of financial havoc . . . ." Ibid.

(citing McIntyre-Caulfield, 455 N.J. Super. at 9-10).

After the close of discovery, Bednar Landscape moved for summary

judgment, contending N.J.S.A. 34:15-8 barred plaintiffs' third-party claims

because plaintiffs were collecting workers' compensation benefits and

defendants had not committed an "intentional wrong."

In an extensive, well-reasoned written decision and accompanying order,

the motion judge granted summary judgment on March 9, 2020. After reviewing

the applicable statute and caselaw, the judge found that "a jury simply could not

conclude that [d]efendant[s] [were] 'substantially certain' that [their] working

conditions would cause great bodily harm or injury to one of [their] employees,

which is a prerequisite to avoiding the exclusivity bar under the [WCA]."

Although the judge determined plaintiffs had presented "a very

compelling case for recklessness or gross negligence", they could not

demonstrate an "intentional wrong" or that defendants were "'substantially

certain' of the harm that would result from allowing decedents to enter the trench

without safeguards."

The motion judge also considered and rejected plaintiffs' argument that

the corporate guilty plea sufficed to meet the "substantial certainty" test. The

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court noted that neither corporate principal testified, and the factual basis

referred to OSHA's finding of "reckless" conduct. The court stated: "'Reckless'

is not enough to meet the 'substantial certainty' standard."

Following the grant of summary judgment to Bednar Landscape, the

parties executed a consent order granting summary judgment to the individual

defendants.

We review the grant of summary judgment de novo, applying the same

legal standard as the trial court. Green v. Monmouth Univ., 237 N.J. 516, 529

(2019) (citation omitted). Therefore, we consider "whether the competent

evidential materials presented, when viewed in the light most favorable to the

non-moving party in consideration of the applicable evidentiary standard, are

sufficient to permit a rational factfinder to resolve the alleged disputed issue in

favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J.

520, 523 (1995).

"If there is no genuine issue of material fact, we must then 'decide whether

the trial court correctly interpreted the law.'" DepoLink Ct. Reporting & Litig.

Support Servs. v. Rochman, 430 N.J. Super. 325, 333 (App. Div. 2013) (citations

omitted). We review issues of law de novo and accord no deference to the trial

A-3110-19
9
judge's conclusions on issues of law. Nicholas v. Mynster, 213 N.J. 463, 478

(2013).

On appeal, plaintiffs argue the trial court erred in granting summary

judgment. They assert the "record was rife with material and substantial

disputes of fact, including credibility issues" which should have been reserved

for consideration by a jury. In addition, plaintiffs contend they satisfied the

intentional wrong standard required to exempt their claims from the WCA bar ,

permitting them to pursue common law tort claims.

The WCA is a "trade-off whereby employees relinquish[] their right to

pursue common-law remedies in exchange for automatic entitlement to certain,

but reduced, benefits whenever they suffer[] injuries by accident arising out of

and in the course of employment." Millison v. E.I. du Pont de Nemours & Co.,

101 N.J. 161, 174 (1985). "When, by either express or implied agreement, the

parties have accepted the provisions of the [WCA], the agreement operates as

an employee's surrender of other forms of remedies." Van Dunk v. Reckson

Assocs. Realty Corp., 210 N.J. 449, 459 (2012) (citing N.J.S.A. 34:15-8).

However, an employee can overcome the statutory bar if he or she can satisfy

the exception for an intentional wrong. N.J.S.A. 34:15-8 provides:

If an injury or death is compensable under this article,
a person shall not be liable to anyone at common law or

A-3110-19
10
 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, except for
intentional wrong.

In Millison, our Supreme Court created the current "intentional wrong"

framework and implemented a "substantial certainty" test. 101 N.J. at 178. The

test requires an analysis of a "conduct" and a "context" prong. Id. at 178-79.

The Court instructed:

Courts must examine not only the conduct of the
employer, but also the context in which that conduct
takes place: may the resulting injury or disease, and the
circumstances in which it is inflicted on the worker,
fairly be viewed as a fact of life of industrial
employment, or is it rather plainly beyond anything the
legislature could have contemplated as entitling the
employee to recover only under the [WCA]?

[Id. at 179 (emphasis omitted).]

To satisfy the intentional wrong exception, "a plaintiff must first establish

the employer knew that its actions were substantially certain to result in injury

or death to the employee." Hocutt v. Minda Supply Co., 464 N.J. Super. 361,

375 (App. Div. 2020). If that prong is met, "[t]he plaintiff must further show

that the resulting injury and the circumstances of its infliction were more than a

fact of life of industrial employment and plainly beyond anything the Legislature

intended the WCA to immunize." Ibid.

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 The Millison Court directed that "the dividing line between negligent or

reckless conduct on the one hand and intentional wrong on the other must be

drawn with caution, so that the statutory framework of the [WCA] is not

circumvented simply because a known risk later blossoms into reality. We must

demand a virtual certainty." 101 N.J. at 178.

In the wake of Millison, our Supreme Court has considered additional fact

scenarios and provided guidance to distinguish negligent or reckless culpability

from intentional wrong.

In Laidlow v. Hariton Mach. Co., Inc., the plaintiff employee severely

injured his hand while operating an unguarded rolling mill. 170 N.J. 602, 606 -

07 (2002). The employer regularly removed the safety guard on the mill when

its employees used the machine but replaced it prior to OSHA inspections. Id.

at 608. The plaintiff and a co-worker reported two incidents to their supervisor

when their hands were almost pulled into the machine and requested the

restoration of the guard. Ibid. Their concerns and requests were ignored. Ibid.

The Court found that the "conduct involving the intentional, and deceptively

timed, engaging and disengaging of safety equipment . . . [satisfied the] conduct

and context prongs . . . ." Van Dunk, 210 N.J. at 462 (citing Laidlow, 170 N.J.

at 606-07).

A-3110-19
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 In Crippen v. Cent. Jersey Concrete Pipe Co., the plaintiff employee

suffocated and died after falling into a seventeen-foot-deep sand hopper. 176

N.J. 397, 399 (2003). The employer had been cited by OSHA for numerous

serious violations that were not corrected prior to the plaintiff's accident. Id. at

401-03. 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 determined that the plaintiff had satisfied the context

prong. Id. at 411. The employer not only failed to remedy the safety hazards,

contrary to an OSHA order, but also deceived OSHA into believing the

violations had been corrected. Ibid. The Court noted that the defendant

"'effectively precluded OSHA from carrying out its mandate to protect the life

and health of [defendant's] workers.'" Ibid. (alteration in original) (quoting

Laidlow, 170 N.J. at 621). The Court concluded the Legislature "never intended

such conduct to constitute a part of everyday industrial life" nor would the

Legislature expect this conduct to fall within the workers' compensation bar.

Ibid.

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 In Mull v. Zeta Consumer Prods., the Court considered a situation where

the employer was aware of prior injuries and ignored citations for safety

violations. 176 N.J. 385, 388 (2003). The Court concluded the plaintiff satisfied

the conduct prong of the Millison test because OSHA had cited defendant for

several safety violations, the defendant had removed multiple safety devices

from the machine, another employee had sustained an injury operating the same

equipment, and the defendant was aware employees repeatedly complained

about safety concerns. Id. at 392.

The Court also found the context prong was satisfied, noting "[t]he

Legislature would not have considered the removal of the [machine'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 392-93 (quoting Laidlow, 170 N.J. at 622).

Van Dunk presented some facts similar to the case before us. There, the

Court addressed the intentional wrong exception where an employee was injured

in a collapsed unprotected trench. 210 N.J. at 453-54. The plaintiff volunteered

to go into a twenty-foot-deep trench to flatten out filter fabric. Id. at 454. The

supervisor instructed him not to do so because of the risk the trench might

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14
collapse. Ibid. Nonetheless, as problems persisted, the supervisor in a moment

of frustration told the plaintiff to enter the trench and fix the fabric. Ibid. The

trench collapsed on top of plaintiff, causing severe injuries. Id. at 454-55.

During the OSHA investigation, the supervisor acknowledged he was

aware of OSHA trench safety requirements and did not follow those standards.

Id. at 455. That admission led OSHA to cite the company for a "willful"

violation of the safety standards. Ibid. However, the Court found that

classification of the OSHA violation as willful did not necessarily mean the

conduct was an intentional wrong for purposes of the WCA. Id. at 468.

In determining plaintiff had not satisfied the conduct prong, the Court

compared the nature of the trench collapse with the "more egregious

circumstances" of prior cases. Id. at 471. The Court explained:

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, machine, or, in the case of Millison, the
employee's medical condition, knowledge of prior
injury or accidents, and previous complaints from
employees.

[Ibid.]

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 The Court noted that the plaintiff's failure to satisfy the conduct prong was

sufficient to bar the lawsuit. Nevertheless, the Court considered the context

prong, concluding that it also had not been established. The Court explained:

The separate consideration required by the context
prong acts as an additional check against overcoming
the statutory bar to a common-law tort action. It was
added to the analysis to reinforce the strong legislative
preference for the workers' compensation remedy. That
preference is overcome only when it separately can be
shown to the court, as the gatekeeper policing the
[WCA]'s exclusivity requirement, that as a matter of
law an employee's injury and the circumstances in
which the injury is inflicted are 'plainly beyond
anything the legislature could have contemplated as
entitling the employee to recover only under the
[WCA].' In Millison, that threshold was only met by
virtue of the physicians' intentional deception about the
true status of employees' medical conditions when
returning the employees to the hazardous worksite, not
by the dangers present in the workplace itself due to the
known presence of asbestos.

[Id. at 473-74 (emphasis omitted) (citations omitted).]

The Court then applied those principles to the facts presented in the case

before it, noting:

[O]ne cannot reasonably conclude that the type of
mistaken judgment by the employer and ensuing
employee accident that occurred on this construction
site was so far outside the bounds of industrial life as
never to be contemplated for inclusion in the [WCA]'s
exclusivity bar. While a single egregiously wrong act
by an employer might, in the proper circumstances,

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16
 satisfy the intentional-wrong standard, not every
intentional, or indeed willful violation of OSHA safety
requirements constitutes a wrong that is 'plainly beyond
anything the legislature could have contemplated as
entitling the employee to recover only under the
[WCA].'

[Id. at 474 (quoting Millison, 101 N.J. at 179)
(emphasis omitted).]

As stated, plaintiffs here must first establish defendants knew their actions

were substantially certain to result in injury or death to decedents. Hocutt, 464

N.J. Super. at 376. Plaintiffs assert on appeal that defendants' conduct is similar

to that of the employers in Crippen and Laidlow and they have demonstrated

defendants had a substantial certainty of a deep trench collapse and a substantial

certainty of death or injury from such a collapse. We disagree.

Here, defendants had excavated five to eight trenches deeper than five feet

throughout the course of the company's twenty-year history. Their business

rarely engaged in the excavation of trenches, while in Laidlow, the manufacturer

operated the unguarded machine frequently and had engaged in its deceptive

practices for over twelve years. 170 N.J. at 608.

In Crippen and Laidlow, the employers knew of the OSHA safety

requirements and actively chose to ignore them. In Crippen, OSHA had cited

the employer for safety violations. The employer failed to correct those

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violations prior to the plaintiff's accident. Here, defendants testified they were

unaware of OSHA's safety regulations concerning trenches. Their previous

trench sites had not been inspected by OSHA. Nor had OSHA ever issued any

citations to defendants for any violations of its safety regulations.

Unlike in Laidlow, Crippen, and Mull, plaintiffs cannot demonstrate

defendants had knowledge regarding the unsafe trenching practice and a

substantial certainty of the trench's collapse and foreseeable injury or death to

its workers. To the contrary, defendants had previously undertaken projects

where a deep trench was excavated without the required shoring or support and

completed those projects without safety issues or incidents. Bednar testified he

had gone into deep unprotected trenches multiple times in the past and never

considered whether the trench could collapse. The record does not support

plaintiffs' assertion that defendants knew their actions were substantially certain

to cause injury or death.

Plaintiffs turn to another avenue to establish the conduct prong. They

assert the corporate guilty plea demonstrates defendants knew their actions were

substantially certain to cause injury or death to an employee. We again disagree.

Bednar Landscape pled guilty to N.J.S.A. 2C: 17-2(d)(1), which states:

"A person who knowingly or recklessly fails to take reasonable measures to

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prevent or mitigate widespread injury or damage commits a crime of the fourth

degree, if: [h]e knows that he is under an official, contractual or other legal duty

to take such measures . . . ." The judge read the factual basis for the guilty plea,

which was contained in a resolution executed by Keith Bednar on behalf of the

company as required under Rule 3:7-10(c). The resolution stated, in pertinent

part:

On or about October 1, 2014, Bednar Landscape was
performing work at a customer's home . . . by installing
a French drainage system around the customer's house.
The French drains were being installed against the
building's foundation in a trench . . . Bednar Landscape
was excavating. The trench was supported on one side
by the building's foundation. However the other wall
of the trench was neither sloped nor protected by
shields or shoring for the depth of trench as required by
a specific OSHA standard.

As a result of the reckless failure to protect the job site
[in accordance] with the OSHA standards, there was a
trench cave-in which caused two workers . . . to be
trapped and to perish in the cave-in before they could
be rescued by emergency personnel or by other co-
workers who were also working at that location.

As stated, the trial judge granted a civil reservation; the order was affirmed by

this court.

Under Rule 3:9-2, a court may allow a criminal defendant to take a civil

reservation to prevent the guilty plea from being used against him in a

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subsequent civil case. We have explained that the "purpose of the rule is to

avoid an unnecessary criminal trial of a defendant who fears that a civil claimant

will later use his plea of guilty as a devastating admission of civil liability."

Stone v. Police Dep't of Borough of Keyport, 191 N.J. Super. 554, 558 (App.

Div. 1983).

Plaintiffs contend there are inconsistencies between the deposition

testimony of the individual defendants and the factual basis of the corporate plea

that create issues of fact which undermine the motion judge's conclusion that

defendants did not have substantial certainty of the dangers posed by the

unguarded trench. And plaintiffs assert the civil reservation does not prevent

them from using those inconsistencies to impeach defendants' knowledge

regarding OSHA standards.

Specifically, plaintiffs highlight the contradiction between the individual

defendants' professed lack of knowledge regarding the necessity of shoring a

deep trench and the corporation's plea to an offense which states that the person

"knows he is under an official, contractual or other legal duty to take" reasonable

measures to prevent or mitigate injury or damage. N.J.S.A. 2C:17-2(d)(1).

We agree that, under certain circumstances, testimony given during an

allocution may be used despite the entry of a civil reservation. See Stone, 191

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N.J. Super. at 554 (holding the protection of R. 3:9-2 is waived where a plaintiff

offers his own testimony to support a civil claim and that testimony is

inconsistent with the testimony given to support his guilty plea to a criminal

offense). However, those circumstances are not present here.

Under Stone, allocution testimony presented during a plea hearing may be

used to impeach that person's testimony in a civil case if there are

inconsistencies, even if there is a civil reservation. However, here there are no

inconsistencies. None of the defendants testified during the plea hearing. The

factual basis accepted for the plea referred to the corporate entity's "reckless

failure to protect the job site in accordance with OSHA standards."

Defendants did not testify they knew there was a substantial certainty of

injury from the lack of a secured trench. The corporate entity only pled guilty

to an offense that included a "knowing" element. The civil reservation protects

the disclosure of the plea itself, and the elements of the offense to which

defendants have agreed to accept guilt. Only if there were contradictions

between the allocution testimony and any testimony by the same individual in a

civil case can the person be impeached with the testimony from the plea hearing.

Even if that occurred, the elements of the offense and the plea itself would not

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be disclosed. The plea agreement here does not provide the "substantial

certainty" required under the conduct prong.

Because the motion judge found plaintiffs could not satisfy the conduct

prong, he did not analyze the context prong. As we have reached the same

conclusion, we only briefly address plaintiffs' arguments.

Plaintiffs contend the circumstances here were more than "a fact of

industrial life of employment . . . ." They also urge this court to reject

defendants' proffered defense of "willful ignorance."

Millison and its progeny have "set a high threshold for the context[]

analysis." Van Dunk, 210 N.J. at 474. In Van Dunk, the Court found that the

trench cave-in at the construction site was not so far outside the bounds of

industrial life as to never be contemplated for inclusion in the WCA. Ibid. It

did so despite the employer knowing about OSHA regulations and the

requirement that trench boxes be used in trenches deeper than five feet. Id. at

455. In addition, the employer was found to have willfully violated OSHA

standards. Ibid.

Like Van Dunk, this tragic case is not similar to the industrial settings of

Laidlow, Crippen, and Mull, where the employers were aware of OSHA safety

requirements, had been reprimanded by OSHA in the past, deliberately deceived

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OSHA into believing they had resolved the safety issues, and ignored prior

injuries and complaints from employees. Plaintiffs have not vaulted the high

bar required by our Court to satisfy the context prong. We decline to establish

a new standard of analysis – whether defendants "willfully ignored" OSHA

safety regulations – to satisfy the prong.

For the reasons stated, we are satisfied there were no material disputed

issues of fact to preclude the entry of summary judgment and the motion judge

properly applied the facts to the applicable law.

Affirmed.

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SABATINO, P.J.A.D., concurring.

After an unstable trench at a job site violating OSHA safety standards

caved in and crushed to death two laborers, the State of New Jersey brought

criminal charges against the decedents' employer, Bednar Landscaping Services,

Inc. ("the Company") and at least two of its principals, Keith Bednar and

Christopher Liberatore. 1

The two principals negotiated the diversion of the individual charges

against them under the pre-trial intervention program. The Company was

charged in an Accusation under N.J.S.A. 2C:17-2(d)(1), which makes it a fourth-

degree criminal offense to "knowingly or recklessly fail[] to take reasonable

measures to prevent or mitigate widespread injury or damage," if the defendant

"knows that [it] is under an official, contractual or other legal duty to take such

measures." (Emphasis added).

With the approval of a Criminal Part judge, the Company pled guilty to

the Accusation. At the plea hearing, no fact witness or principal from the

Company testified. Instead, the factual basis for the Company's guilty plea was

memorialized in the following two-paragraph document presented to the court

pursuant to Rule 3:7-10(c) by the Company's criminal defense attorney:

1
It is unclear from our present record if L. Peter Liberatore was individually
named in the criminal charges.
 BEDNAR LANDSCAPING SERVICES, INC.
CORPORATE FACTUAL BASIS FOR GUILTY
PLEA TO N.J.S.A:2C 17-2d(1)
ACCUSATION NO. 18-01-00064-A

On or about October 1, 2014, Bednar Landscaping was
performing work at a customer's home on Rockaway
Valley Road, Boonton Township, Morris County, New
Jersey, by installing a French drainage system around
the customer's house. The French drains were being
installed against the building's foundation in a trench
that Bednar Landscaping was excavating. The trench
was supported on one side by the building's foundation.
However, the other wall of the trench was neither
sloped nor protected by shields or shoring for the depth
of trench as required by OSHA Standards
29[]CFR[§]1926.652(b)(c).

As a result of the reckless failure to protect the job site
in accordance with the OSHA standards, there was a
trench cave in which caused two workers, Selvin
[Zelaya] and Oscar Portillo to be trapped and to perish
in the cave in before they could be rescued by
emergency personnel or by other co-workers who were
also working at that location. Throughout the project
there were in excess of five Bednar employees at the
job site.

[(Emphasis added).]

The terms of the plea agreement included a civil reservation pursuant to

Rule 3:9-2 disallowing its admission as evidence in related civil proceedings.

The prosecutor took no position on that request for a civil reservation, but the

Estate of Mr. Portillo intervened in opposition. The intervenor arg ued the

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defendant had not shown "good cause" for the reservation. The Criminal Part

judge rejected that argument and approved the terms of the plea. The judge

imposed on the Company a sentence of two years of probation, and the payment

of $50,000 in restitution to the decedents' families.

The intervenor appealed the civil reservation. In July 2019 a panel of this

court issued a per curiam opinion affirming the Criminal Part judge's decision.

Among other things, the opinion upheld the Criminal judge's reliance on the

Company's contention that "its insurance carriers would be more likely to

indemnify [it for claims by the estates] if [the Company] obtained a civil

reservation."

In the present civil action, the estates have sought money damages for

wrongful death and survivorship, arising out of what they characterize in their

joint complaint as "intentional, willful, knowing and deliberate actions, with

substantial knowledge and/or virtual certainty of the injury or death of the

[decedents]." (Emphasis added).

Defendants have disavowed having such knowledge. For instance, in the

Company's Statement of Uncontested Material Facts pursuant to Rule 4:46-2, it

asserts that prior to this fatal accident, "Mr. Bednar was unaware of the risks of

a cave-in of a trench," and "was not aware of the dangers inherent in working in

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a trench without shoring or a trench box." The defense also maintains that Peter

Liberatore "was unaware of safety requirements pertaining to trenches before

October 1, 2014" and Christopher Liberatore "did not know of any requirement

that trench boxes be used nor of any OSHA regulations," and had "no knowledge

on [sic] any increased risk of cave-in after 'rain.'"

The apparent dissonance between the defendants' lack-of-knowledge

assertions in this civil case—as contrasted with the Company's plea of guilty to

a criminal accusation charging it under N.J.S.A. 2C:17-2(d)(1) of violating a

known legal duty to take precautionary safety measures—is, to say the least,

troubling. Either the Company and its officials knew the trench was unsafe, or

they didn't.

This seeming inconsistency raises the question of whether the civil

reservation would bar the use of the guilty plea and the associated factual basis

as evidence to impeach defendants' professions of lack of knowledge in this

case. In Stone v. Police Dep't of Borough of Keyport, 191 N.J. Super. 554, 558

(App. Div. 1983), we held that, although civil reservations have benefits in

helping to resolve criminal matters, their evidentiary bars may be lifted to

impeach a party in the civil case who offers testimony inconsistent with th e

allocution or factual basis underlying the criminal plea. Here, the written factual

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basis admits to "reckless" conduct, but is silent about whether the Company

possessed the knowledge required to support guilt of a knowing offense under

the statute.

The civil judge who granted summary judgment to defendants assumed

that the civil reservation would not bar the criminal plea from consideration for

purposes of the motion analysis. However, the judge concluded the criminal

plea was inconsequential because the plea was based on a factual basis admitting

to reckless conduct. That begs the question, however, if the plea necessarily had

to include at least an implicit admission under subsection (1) of N.J.S.A. 2C:17 -

2(d) requiring that the defendant "knows" that it was under a legal duty to take

precautionary measures. The guilty plea was not predicated on subsection (2),

i.e., that defendant "did or assented to the act causing or threatening the injury

or damage." Indeed, the heading of the factual basis cites subsection (1), not

(2).

We need not resolve this thorny question of impeachment because

defendants' knowledge or lack of it turns out to be non-dispositive. As my

colleagues explain in the majority opinion, the Supreme Court has not

recognized a theory of "willful ignorance" as a basis to overcome N.J.S.A.

34:15-8's bar to a civil action against an employer with workers' compensation

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immunity. So if, as they now assert, defendants did not know about the need for

a trench box, their ignorance is non-actionable.

Alternatively, even if the Company and its officials knew the absence of

a trench box was unsafe, their conduct, which the motion judge fairly

characterized as bespeaking "recklessness or gross negligence," does not appear

to be materially worse than the employer's conduct in Van Dunk v. Reckson

Assocs. Realty Corp., 210 N.J. 449, 455 (2012). The supervisor in Van Dunk

admitted in the post-accident investigation of the cave-in fatality that he had

been aware of the trench box safety requirement, ibid., but despite that

admission of knowledge, the Court agreed with this court that the conduct did

not rise to the level of an actionable intentional wrong. Id. at 470-71. Also, in

the present case, as the majority points out, there isn't clear proof defendants

were "substantially certain" the lack of a trench box would produce injury or

death.

Having expressed my concerns, I join in the majority's decision to affirm

summary judgment. Despite the avoidable nature of this double tragedy, the law

enacted by our Legislature as construed by our Supreme Court limits these

survivors to workers' compensation death benefits and disallows a jury award

for additional recovery.

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