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Van Dunk v. Reckson Associates Realty Corporation

415 N.J. Super. 490, 2 A.3d 456 (App. Div. 2010)

WORKERS COMPENSATION — An employer does not enjoy the workers compensation protection against lawsuits by an employee where the employee’s injury arose from the employer’s intentional wrong, and the employer has been cited with an OSHA violation evidencing that the employer’s conduct did not constitute an industrial “fact of life.”

An employee sued his employer for the serious injuries he sustained at his workplace when the trench in which he was working collapsed. The employee argued that the Worker’s Compensation Act did not bar his lawsuit because the federal Occupational Safety and Health Administration (OSHA) had found that the accident resulted from the employer’s willful violation of safety regulations. The employee argued that the employer was aware of the dangers of going into the trench without safety devices such as a trench box. Therefore, he asserted that his employer’s actions constituted an “intentional wrong” that was not immunized under the Worker’s Compensation Act. The lower court held for the employer and granted summary judgment. The employee appealed and the Appellate Division reversed.

In doing so, the Court noted that in order for an employee to sue for workplace injuries and not be barred by the Worker’s Compensation Act, a court must find that the employer committed an “intentional wrong.” “Intent” is determined using a “substantial certainty” test, which consists of two prongs: (1) an employer must know that its actions are substantially certain to result in injury or death to the employee; and (2) the resulting injury and the circumstances in which the injury occurred must be more than a fact of life in industrial employment and must be beyond what the legislature intended the Worker’s Compensation Act to immunize. The analysis of the first prong, the “conduct” test, must be based on the totality of the circumstances. Depending on the situation, the lack of a “close call” or a “prior accident” before the current injury would not necessarily mean that the employer did not appreciate that its conduct was substantially certain to result in injury or death. In addition, the removal or alteration of a safety device, although not an “intentional wrong” per se, could satisfy the conduct prong based on the particular circumstances.

In this case, the Court found that the employer knew that allowing its employees to enter into the trench without any safety device could lead to serious injury or death. In fact, the Court noted that the employer did not initially allow the employee into the trench because it was concerned that the trench was unstable and could collapse. When it did so, the employer disregarded the safety of the employee to increase profitability. The employer needed to relocate a sump within the trench in order to move along with the project and it needed to do so before it rained. When other measures failed, the employer instructed the employee to enter the trench to complete the work despite its earlier concerns that the trench would collapse and that there were no safety devices (such as a trench box) to protect the employee. Therefore, under these circumstances, the employer’s conduct constituted an “intentional wrong.” The Court also found that, given the OSHA violation, the employer’s conduct did not constitute a “fact of life” in industrial life. It noted that the lower court disregarded the significance of the OSHA violation as well as the fact that the trench could have been made safer if the employer had used a protective device such as a trench box. Further, the Court found that the legislature would not have sanctioned the context in which the accident occurred and therefore the employee should not have been barred from suing for compensation for his injuries.


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