Submitted by New Jersey Workers Compensation Lawyer, Jeffrey Hark.
If there are alternative methods available to perform a job duty and the employer requires me to perform one that is more hazardous and causes me injury, is that an intentional wrong which would allow me to sue my employer?
In this case an employee was injured while performing a demolition job. The employee argues because there were safer alternatives available to perform a job, as opposed to how the employer actually instructed the employees to perform, that is an intentional wrong and as a result the employee should be allowed to sue the employer.
Initially, in New Jersey employees cannot sue his employer for injuries suffered during the course of an employment because employees are provided temporary disability benefits, medical treatment, and a possible a permanency award, for injuries suffered in the course of employment pursuant to the Workers Compensation Act. However, they can sue the employer for intentional acts they can show the employer acted in a purposeful or intention which resulted in injury.
In this case the plaintiff testified that his employer required him to lift large boulders of debris into bins and onto metal rollers. The boulders could have been lifted manually or alternatively by using a hoist that was present hanging from a ceiling above a furnace at the job site. The employee testify the foreman instructor the employees to stop using the hoist in order to complete the job faster. Several of the employees told the foreman “somebody’s going to get hurt lifting the boulders manually”. The foreman responded, “if you don’t do it they will get somebody else to do it.” Because plaintiff needed the job he did not respond. Plaintiff also testified that he was aware that the boulders weigh between 150 and 200 pounds, he did not ask any other employees to help, and he did not believe the boulders were too heavy for him to lift without assistance. When asked if he believe the foreman intended to injure him, plaintiff testified “I do not know”, “it just happened”, “I cannot answer yes or no.” The trial court, after summary judgment, dismissed plaintiff’s complaint concluding that plaintiff was unable to prove with sufficient facts that the foreman either:
- subjectively intended to injure the plaintiff or
- the foreman was substantially certain plaintiff would be injured by not allowing the employees to use the hoist.
Remember the appellate division is limited to review the trial courts decision to determine if there is sufficient evidence for a rational fact finder to resolve the dispute in favor of the non-moving party. In this case the employer moved for summary judgment finding plaintiff was not entitled to recovery outside the parameters of the New Jersey’s Worker’s Compensation statute.
New Jersey’s Worker’s Compensation Act provides the exclusive remedy for claims against an employer except for those injuries that resulted from an employer’s “intentional wrong” pursuant to NJSA 34:15 – 8. The employee must prove by competent credible evidence that a) his or her injuries are based on a subjective intent to cause injury by the employer or b) there was substantial certainty that injury would occur as a result of the employer’s instructions.
The court has recognize the subject of intent and substantial certainty are two parts of a “deliberate intent to harm” standard. New Jersey courts have interpreted “intentional wrong” to mean deliberate intention beyond gross negligence or similar concepts imputing instructive intent. In other words, plaintiff must prove that there was a deliberate intent on behalf of the employer and here, the foreman, to cause injury. Here plaintiff testified he did not know if there was any deliberate intent by the foreman to injure plaintiff when he instructed the workers to stop using the mechanical hoist. Plaintiff also testified that neither the foreman or any other employee instructed plaintiff to pick up the particular boulder he attempted to lift that caused injury.
Merely communicating to the supervisors, by the employees, that “somebody’s going to get her lifting these heavy boulders “does not translate into a deliberate intent to injure a specific employee”. This court recognized that the New Jersey Supreme Court previously ruled that, “mere knowledge and appreciation of a risk, even strong probability of risk, does not translate into factual evidence of intent or substantial certainty of injury.” The defendant who acts in the belief or consciousness that an act is causing an appreciable risk of harm to another may be negligent, may be reckless or wanton, but is not considered intentionally wrong. Additionally, “even if the evidence plaintiff advances could support a finding of gross negligence, gross negligence is insufficient to maintain a cause of action against the employer for the intentional wrong exception of the New Jersey Worker’s Compensation statute.
The Appellate Division goes on to agree with the trial court’s decision that this plaintiff also failed to satisfy the evidentiary burden of the second prong of the exception recognized by the courts. The “substantial certainty standard” requires an employee to show that the employers actions were:
- substantially certain to cause injury and
- the circumstances of the injury must be
- more than a fact of industrial employment and
- beyond the scope of the Worker’s Compensation act to immunize employers.
Here the trial court ruled plaintiff did not present sufficient evidence to support his “conclusory claim” that the foreman knew there was a substantial certainty that this employee and others would be injured as a result of the instruction not to use the mechanical hoist. The prediction “that someone’s going to get hurt” was not enough to equate to intentional wrong. Prior court decisions have determined that “a known risk which later blossoms into reality” is not enough to meet the “virtual certainty” standard. Plaintiff, the court ruled at the trial level and again at the appellate level, “did not proffer evidence, expert or otherwise, “that there was a virtual certainty that he would be injured and the foreman was aware of that virtual certainty.”” Knowledge of similar risk is not adequate to satisfy the evidentiary requirement pursuant to long-standing caselaw.
The court looked to a case for an illustration to provide an example of “objectively reasonable basis for expecting virtual certainty of injury.” In that case an employer told and employee to enter a 20 foot deep trench that lacked any safety devices even though OSHA regulations forbade an employee from entering a trench deeper than 5 feet if protective systems are not put in place. Obviously the trench caved in and plaintiff was injured. The court found in that case that, “the employer’s willful violation of OSHA standards, and other facts known to the supervisor at the time, individually and together, we’re still not enough to prove and objectively reasonable basis for expecting virtual certainty of injury.
The appellate court here also goes on to examine prior OSHA violations for identical conditions, in conjunction with prior complaints for an employees concerning injuries, as well as intentional removal of safety devices from a machine all as intentional acts to be considered by the court to circumvent the Worker’s Compensation Act. However the court here found none of those facts were present in this case. Complaints immediately prior to an injury are not the same, and there was no evidence that the mechanical hoist was a required safety device implemented by the employer and not using same was an actual violation of OSHA regulations. The trial court also correctly ruled that the plaintiff failed to present evidence that showed his injury was “more than a fact of life of industrial employment beyond anything that legislation intended with the immunization of the employer in the Worker’s Compensation Act setting.”
In conclusion the court turned to the strong legislative preference for Worker’s Compensation remedies to be controlled by the Act even given gross negligence and or willful and wanton employer conduct. This plaintiff failed to prove that the mistake of judgment by the employer requiring the employees not to use the hoist in question was so far outside the bounds of industrial life constituted an intentional wrong creating a substantial certainty of bodily injury or death.
Jeffrey S. Hark, Esq.