Lassandro v. Pep Boys and Rotary Lift Services

If you are ‘intentionally’ injured at work can you sue your employer in addition to making a workers’ compensation claim?

Submitted by New Jersey Workers Compensation Lawyer, Jeffrey Hark.

In this case plaintiff was injured when other employees modified a car lift by adding weights to a safety arm disengaging the safety arm from working. When the lift fell the weights holding the safety arm in place precluded it’s intended effect of stopping the lift from falling too far at one time.  Once this happen the plaintiff was injured when the lift fell towards him.

Was the conduct of the other employees ‘intentional enough’ to entitle the injured employee to sue his employer and not just make the usual workers compensation claim?

The Worker’s Compensation statute was created in the early 1900s during the time that the industrial revolution was maturing. The Worker’s Compensation system was created to enable employees to ‘quickly’ recover for work related disabilities in a faster more equitable manner while at the same time shielding employers from greater general liability.  The process was created so as many work related disability claims could proceed exclusively within the Worker’s Compensation system. In order to prove that and employer is a viable for a “intentional wrong” outside that administrative workers compensation system there is a two step test laid out in a New Jersey Supreme Court case Laidlow v. Hairston Mach. Co. The first step is to evaluate the conduct of the employer and determining if the employer knew that his conduct substantially and or certainly cause injury or death to the employee. The second prong of the test calls for in evaluation of the employer’s conduct requiring the court evaluate all the facts in the record and determine if the injury and circumstances of inflicted injury on the worker were clearly more than ‘a fact of life of the industrial employment’ and plainly beyond the legislature’s intent to immunize the employer. This second step is called the Milleson conduct prong. Plaintiff argued the employer has knowledge of the conduct based on the imputed awareness of their other employees  and apparent ongoing risk. However, the court ruled the employer must know that it’s conduct was substantially certain to result in injury or death.  The court ruled in this case that, although the other employees knew the safety mechanism was disabled by the weights hanging on the safety alarm and the lift maintenance company had come to the employer and told them that this was inappropriate conduct in the past, all of this evidence still failed to meet the “substantial certainty to result in injury or death to the employee” burden.

The court went on to examine the “high threshold” burden for employees who seek to escape the exclusivity of the Worker’s Compensation act. Remember there is a very strong legislative preference for the Worker’s Compensation statutory remedy to protect employers from outside liability, while enabling as many employees as possible to take advantage of the benefits of the Worker’s Compensation administrative process.

In this case, which involves employees working on various types of heavy equipment, the nature of the very employment exposes plaintiff and other employees to the risk of injury due to negligence of coworkers and management. The facts in this case, the use of weights to disengage a safety arm on a car left, is the very type of behavior  that is not ” beyond anything that legislature could have contemplated as entitling employees to recover only under the New Jersey Worker’s Compensation statute.”  Another factor that weighed against the plaintiffs case was the fact that there was no other similar accident for which the employer was on notice and aware of the conduct of the employees.  Plaintiff argued that because there was no other prior accidents regarding the very same subject matter that this was well beyond that legislative intent. However, the court, looked at that fact 180° the opposite. The court found that the lack of other accidents reflected a set of circumstances that were not “so unique” to pull it outside of the legislative intent and protection of the Worker’s Compensation act.  The court reasoned that, “because the evidence here clearly failed to support a finding that the defendant committed and intentional wrong under the Worker’s Compensation act, the exclusive provisions of the act bar plaintiffs third-party action against his employer”.  Arguably, had there been numerous prior injuries as a result of the same conduct then plaintiff could have argued the defendant employer’s continued intentional behavior of avoiding or ignoring the safety protocols could have opened the door to view that behavior as purposeful or intentional conduct outside the protection of the Workers Comp Act and possible  third-party exposure. Those facts  did not exist in this case

Jeffrey S. Hark, Esq.
609-471-1959. Cell
856-354-0050 Office

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