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Dominguez v. Perovich Properties3/30/2005
Plaintiff Paul Dominguez appeals from an adverse summary judgment rejecting his tort claim for personal injury , commonly called a "Delgado claim." Plaintiff sought relief against his employer, Perovich Properties, Inc. (Employer), outside of the Workers' Compensation Act (the Act), NMSA 1978, ยงยง 52-1-1 to -70 (1929, as amended through 2004), alleging Employer wilfully and intentionally injured him. In Delgado v. Phelps Dodge Chino, Inc., 2001-NMSC-034, 131 N.M. 272, 34 P.3d 1148, our Supreme Court permitted a worker to sue his employer in tort for an injury received within the scope of employment that would otherwise be exclusively compensable only under the Act if the worker could prove that the employer intentionally inflicted or wilfully caused the worker to suffer the injury. Id. 24. We affirm the summary judgment in favor of Employer.
BACKGROUND
Plaintiff received serious injuries in April 1999 while working at a gravel processing operation in northern New Mexico. His primary job was to operate a front-end loader by feeding raw gravel and rock material into screening equipment to be processed and separated. The screening equipment had to be cleaned from time to time, and the equipment's screen had to be changed from time to time. Employer's procedure was to stop operation of the equipment by turning it off and then someone would determine if the screen needed to be cleaned or changed. Plaintiff was familiar with the procedure.
According to Plaintiff's brief in chief, but unsupported by any citation to a statement of undisputed facts supported by facts under oath, on the day Plaintiff was injured, Employer's supervisor for the screening operation told Plaintiff to perform a periodic, routine maintenance task on the screener to clear rocks that were jammed in one of the screens. The equipment was stopped and Plaintiff climbed onto a conveyor belt. While he was standing on the conveyor belt and performing the maintenance work, the supervisor, without warning, started the equipment. Plaintiff was carried down the conveyor belt and injured.
Employer's answer brief also states facts that are unsupported by any citation to a statement of undisputed facts supported by facts under oath, but that are at least somewhat supported by a fairly detailed affidavit attached to Employer's summary judgment documents. According to Employer's answer brief, the supervisor and other employees determined that the screen needed to be changed; the supervisor went to the control room. After five or ten minutes, the supervisor saw Plaintiff motioning to him with his hands from a catwalk next to the screener and the conveyor belt connected to the screener. The supervisor interpreted Plaintiff's hand gestures as a signal that the screen had been changed and that the supervisor was to restart the equipment. The supervisor left the control room and engaged the engine on the impact crusher needed for the operation. Engagement of the engine sounded an audible alarm, which alerted employees that operations were about to recommence. The supervisor then climbed down off the impact crusher, went back to the control room, and started the conveyor belt connected to the rock screener. Other employees appeared and motioned to the supervisor, who sensed something was wrong, and immediately hit the emergency stop button which ceased all operations. Plaintiff filed no reply brief indicating that any of these facts was erroneous. Plaintiff concedes that he was attempting to perform a regular task for Employer's supervisor.
Plaintiff filed a complaint for personal injury, which he amended twice. Employer filed two motions for summary judgment. Among other points, Employer ar
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