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Workers’ Compensation And Other Compensation Systems

39-2-1409 Sellino v. Pinto Brothers Disposal, LLC, App. Div. (per curiam) (13 pp.) Samuel Sellino was employed as a trash truck operator for defendant Pinto Brothers Disposal, LLC and died after he fell under the wheels of a truck he had been driving. The incident occurred when Sellino got out of the truck, leaving the vehicle in drive, with the parking brake engaged. The truck started rolling forward and Sellino and another employee ran after it when Sellino fell. His estate and widow appeal from an order that granted summary judgment, dismissing the complaint against Pinto Brothers as barred by the immunity provision of the Workers’ Compensation Act. Viewing the evidence in the light most favorable to plaintiffs, defendants tampered with the neutral relay, knowing that, as a result, the truck would roll forward if left in drive. It may be inferred from such evidence that bypassing the neutral relay created a risk of injury to its employees. This falls short of showing that Pinto Brothers acted with knowledge that such action was “substantially certain to result in injury or death to the employee.” The conclusion that the employer’s alleged negligence here fell short of establishing an intentional wrong is fortified by the totality of the circumstances. Sellino’s own negligence in leaving the truck in drive while leaving the cab unattended was a substantial factor contributing to his fatal injury. The evidence here failed to support a finding that Pinto Brothers committed an intentional wrong under the Workers’ Compensation Act. Therefore, the exclusivity provision of the Act barred plaintiffs’ claims and summary judgment was properly granted.

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