Tuesday, February 11, 2014

After Van Dunk: the Intentional Wrong Exception to the New Jersey Workers’ Compensation Act

After Van Dunk: the Intentional Wrong Exception to the New Jersey Workers’ Compensation Act

Justin M. Smigelsky, Esq.

According to the New Jersey Workers’ Compensation Act,1 swift and certain payment, without regard to fault, to an employee who sustains workplace injuries is required. In exchange, employers are immune from tort liability and the employee surrenders all other forms of relief, which includes the right to sue his or her employer. Under the express terms of the statute, the employer’s immunity from liability can be overcome if the injury was the result of the employer’s “intentional wrong.”2

One of the landmark cases interpreting the “intentional wrong” exception is Millison v. E.I. du Pont de Nemours & Co.3 In Millison, the New Jersey Supreme Court determined that workers whose job required contact with asbestos could not sue their employer in common-law when they became ill as a result of that contact, even though the employer was aware of the risks associated with asbestos.4 In so holding, the Court framed the question as “what level of risk-exposure is so egregious as to constitute an ‘intentional wrong.’”5

The Millison Court instructed future courts to engage in a two-step analysis when assessing claims of intentional wrong. A court should first consider whether the actions of an employer created a “virtual certainty” of injury or death under the “conduct prong,” followed by consideration of the context in which the conduct takes place.6 Under this so-called “context prong,” courts must consider whether the resulting injury or death, and the circumstances surrounding it, fairly may be viewed as a fact of industrial life, or rather, whether it is “plainly beyond anything the legislature could have contemplated as entitling the employee to recover only under the Compensation Act.”7

            Some seventeen years after Millison, the New Jersey Supreme Court considered four cases that involved on-the-job accidents. In Laidlow v. Hariton Machinery Co.,8 the Court observed that proving both the conduct and context prongs may involve consideration of the same facts and circumstances, with the court making two separate inquires:

The first is whether…the evidence could lead a jury to conclude that the employers acted with knowledge that it was substantially certain that a worker would suffer injury. If that question is answered affirmatively, the trial court must then determine whether, if the employees’ allegations are proved, they constitute a simple fact of industrial life or are outside the purview of the conditions the Legislature could have intended to immunize under the Workers’ Compensation bar.9

The Court also emphasized in Laidlow that an intentional wrong is not limited to actions taken with a subjective desire to harm and includes instances where an employer knows that the consequences of those acts are “substantially certain” to result in harm.10

One year later, in what may be characterized as the “intentional wrong trilogy of cases,” Tomeo v. Thomas Whitesell Constr. Co.,11 Mull v. Zeta Consumer Prods.,12 and Crippen v. Central Jersey Concrete Pipe Co.,13 the Court had occasion to apply the Millison conduct and context analysis in three very different fact patterns, and ultimately reaffirmed that in order for an employee to pursue its cause of action against the employer, both the conduct and context prongs must be proved. Furthermore, as enunciated in the “intentional wrong trilogy of cases,” such determinations must be made on a case-by-case basis taking into consideration the totality of the circumstances.14

            As summarized in Laidlow:

[I]n order for an employer’s act to lose the cloak of immunity of N.J.S.A. 34:15-8, two conditions must be satisfied: (1) the employer must know that his actions are substantially certain to result 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 Workers’ Compensation Act to immunize.15

In Van Dunk v. Reckson Assocs. Realty Corp.,16 one of the most recent cases to consider the issue, the New Jersey Supreme Court once again addressed the standard established by the Legislature that permits a worker to bring a common law tort action against his or her employer as an exception to the immunity provided under the Workers Compensation Act for job-related injuries.

In Van Dunk, the employee/plaintiff, Kenneth Van Dunk, was digging a trench to place a dewatering sump into a retention pond. One of Van Dunk’s duties involved laying down filter fabric within the trench. As the trench excavation continued and its slope reached a depth greater than five feet, Van Dunk began laying down the filter fabric from locations outside the trench. When workers experienced difficulty laying down the filter fabric from their locations outside the trench, Van Dunk volunteered to go into the trench to straighten the filter fabric. Although Van Dunk’s supervisor initially told him not to do so because of the risks attributable to the ground conditions, the supervisor, in a moment of “frustration,” told Van Dunk to go in and straighten the fabric. Van Dunk was in the trench for less than five minutes when a wall caved in burying him to his chest resulting in multiple injuries. In reversing the Appellate Division’s denial of summary judgment on behalf of the employer, the Court noted that the on-site supervisor had made a quick and extremely poor decision, but was not faced with facts which provided an objectively reasonable basis to expect that a cave-in would almost certainly occur during the brief time that the claimant was in the trench.17

We recently learned from the Van Dunk decision that sometimes even the intentional violation of an OSHA regulation by an employer may not be enough to permit the plaintiff his day in court. However, the Court in Van Dunk was unequivocal in reminding us that the courts must always look to the “totality of the circumstances” in determining whether an intentional wrong has been committed so as to permit an employee’s action to move forward against his or her employer.18

As previously stated, in assessing whether an intentional wrong was committed, courts not only determine whether a “virtual certainty” of injury or death existed under the conduct prong, but also must consider the context in which the conduct takes place.19 Under the context prong, courts must determine whether the resulting injury or death, and the circumstances surrounding it, fairly may be viewed as a fact of industrial life or, rather, whether it is “plainly beyond anything the legislature could have contemplated as entitling the employee to recover only under the Compensation Act.”20

Whether workplace injuries can be tolerated as a simple fact of industrial life deserving immunization for the employer is a question of law, not fact;21 however, the same facts and circumstances will generally be relevant to both the conduct and context prongs.22

This article is for information purposes only, and is neither legal advice nor the creation of an attorney-client relationship. If you have been injured on the job, it is important for you to obtain an experienced workers’ compensation attorney.     

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End Notes
  1. N.J.S.A. 34:15-1 to -128.5
  2. N.J.S.A. 34:15-8.
  3. 101 N.J. 161 (1985).
  4. 101 N.J. at 175-76
  5. Id. at 177.
  6. Id. at 179.
  7. Id.
  8. 170 N.J. 602 (2002).
  9. Id. at 623.
  10. Id.
  11. 176 N.J. 366 (2003).
  12. 176 N.J. 385 (2003).
  13. 176 N.J. 397 (2003).
  14. Laidlow, 170 N.J. at 619, 623; Mull, 176 N.J. at 392; Tomeo, 176 N.J. at 374.
  15. Laidlow, 170 N.J. at 617.
  16. 210 N.J. 449 (2012).
  17. See Id.
  18. Id.
  19. Millison, 101 N.J. at 179.
  20. Id.
  21. Laidlow, 170 N.J. at 623.
  22. Id.

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Links

http://lwd.dol.state.nj.us/labor/wc/workers/workers_index.html
http://justinsmigelskyesq.blogspot.com/2013/03/supplementing-riccis-law-mandatory.html


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