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Tomeo v. Thomas Whitesell Construction Co., Inc.

176 N.J. 366, 823 A.2d 769 (2003)

WORKERS COMPENSATION; EXCEPTIONS—When an employee is injured by ignoring an obvious safety risk, the employee cannot argue that the employer committed an intentional wrong by overriding a safety device.

An employee who usually installed sprinkler systems in commercial buildings was called upon to assist with snow removal at his employer’s premises to avoid loss of pay. His employer instructed another employee to show him how to use the snow blower. This particular model had a two-stage system. It used an intake propeller to grind snow and an injection propeller to eject the snow through a shoot. The snow blower was equipped with a safety lever that activated the propellers when squeezed and deactivated them when released. The safety lever had been taped open on the snow blower supplied to this particular employee. When wet snow clogged the snow blower’s chute, the employee used his hand to push the snow down. On one occasion, the ejection propeller caught his hand, causing injury to his fingers. “Because the lever had been taped, the propellers continued to operate.” The employee sought to rely on an exception to the workers’ compensation immunity bar. That exception comes into play when an employer has performed an intentional wrong. Under decisional law, “an intentional wrong is not strictly a deliberate assault and battery. ... The mere knowledge and appreciation of the risk – something short of substantial certainty – is not intent.” Thus, “simply being aware of the risk of harm does not equate to having knowledge of a substantial certainty of harm.” In fact, in the context of this exception to the workers’ compensation law, “substantial certainty needs to be ‘virtual certainty.’”

The Supreme Court believed that the Appellate Division had applied those principles when it concluded that even if this employer “disabled the safety lever on the snow blower, there was a lack of evidence, including the absence of expert testimony, that [the employer] knew there was a virtual certainty that an employee would be injured from using the snow blower in that condition.” Further, the Appellate Division “declined to hold that the mere act of disabling a safety device is a per se intentional wrong.” In addition to upholding the decision of the Appellate Division, the Supreme Court added “that because [the employee] was injured by a consumer product, rather than a piece of industrial production machinery, [the employee’s] own conduct [could] be considered in analyzing whether immunity is afforded to the employer… .” Essentially, the snow blower, as a consumer product, contained “two visible labels warning of the danger of inserting a body part into the chute.” In addition to the warning labels, the Court thought that the danger of putting one hand into the chute was obvious. As to taping of the safety lever, even if the employer was responsible, “its alleged conduct can be characterized at most as grossly negligent.” A claim of negligent training was a “red herring. No special training was required to be given for the snow blower because it [was] a consumer product. ... Neither negligence nor gross negligence [on the part of an employer] can satisfy the intentional wrong requirement of [New Jersey’s statutory exception to the workers’ compensation bar].” Lastly, under the standard for an “intentional wrong” in this context, the Court believed that “even if the employer disengaged the safety lever, that conduct [could not] satisfy the intentional wrongdoing standard. The substantial certainty prong and the legal concept of causation are intertwined. Here, the natural and continuous sequence of events was broken by an efficient intervening cause when [the employee] placed his hand into the chute, knowing that the propellers were operating. In a legal sense, the alleged taping of the safety lever was not a substantial factor causing the injury but simply present[ed] the surrounding conditions under which the injury was received.”


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