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Crippen v. Central Jersey Concrete Pipe Company

176 N.J. 397, 823 A.2d 789 (2003)

WORKERS COMPENSATION—Knowingly ignoring serious OSHA violations and intentionally deceiving inspectors can be the kind of “intentional wrong” that would lift the workers compensation bar against an employer and it isn’t necessary that the employer knows with substantial certainty that such action or inaction would lead to a death.

This case involved an employee whose job was to stand on an unsecured plank above a loading hopper seventeen feet deep and regulate the movement of sand and gravel into the hopper. He fell into the hopper and suffocated in the sand. The employee’s wife sued the employer for wrongful death. Under the Worker’s Compensation Act, an employee’s recovery for work related injuries (or death) is limited to the receipt of worker’s compensation benefits. There is an exception to the rule. If the employee can establish an “intentional wrong” by the employer, he or she can sue the employer. The employee’s wife claimed that the employer committed an intentional wrong because it failed to abate serious safety violations cited by OSHA and, in order to avoid a follow up investigation, it intentionally deceived OSHA officials into believing that it abated the violations and implemented safety protocols. The lower court found that the OSHA violations made the employer aware of the risk of injury to employees, but that in order to be liable, the employer had to know with substantial certainty that injury or death would occur. It also found that the employer did not know with substantial certainty that its failure to abate the safety violations would result in death, particularly since no one was injured or died in this manner before. It granted the employer’s motion for summary judgment. The Appellate Division affirmed, but the Supreme Court reversed.

The Supreme Court found that an employer’s failure to correct OSHA violations and its intentional deception of OSHA into believing the violations were abated constituted an intentional wrong. It noted that the employer’s environmental health and safety manager admitted that the employer failed to implement many of the safety protocols required by OSHA eighteen months prior to the employee’s death. It also found that a reasonable jury could infer that, by failing to abate the safety violations and by intentionally deceiving OSHA into believing they were abated, the employer could be virtually certain that the workplace conditions would result in injury or death. Finally, the Court rejected the employer’s claim that the particular risk involved in this accident was a typical risk in industrial jobs.

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