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Williams v. Conectiv

A-2425-02T3 (N.J. Super. App. Div. 2004) (Unpublished)

WORKERS COMPENSATION; INTENTIONAL WRONGS—Although the workers compensation bar is lifted where an employer has committed an intentional wrong, i.e., where an employer knows there to be a substantial certainty of harm, simply being aware of a risk of harm does not equate to having knowledge that harm is substantially certain.

A homeowner contracted to have a tree removed from his backyard. While removing the tree, the contractor’s employee was injured when he came into contact with overhead power lines. The employee brought suit against the homeowner, contending the homeowner had negligently breached a duty to exercise reasonable care to ensure his safety and warn him of dangerous conditions on the property. He also brought suit against his employer, alleging that his employer intentionally exposed him to hazardous working conditions. The lower court, on summary judgment, found no breach of duty by the property homeowner. It also found in favor of the employer, because the employee’s exclusive remedy was a workers’ compensation claim.

The Court held that the employee, having climbed a tree, was in a better position to have an appreciation of the danger than anyone on the ground had. Although a homeowner must warn someone of a defect on the property if that person may not know about the danger or might not appreciate it, in this case, the injured worker was as aware of the danger as the homeowner. Both had the same knowledge about the danger of electrical wires. Furthermore, the homeowner had hired professionals to do the required work. Cutting electrical wires when cutting tree branches is a known occupational hazard. Independent contractors work according to their own methods without being subject to the control of the employer as to the means to accomplish the work. Moreover, a landowner is under no duty to protect an employee of an independent contractor from the very hazard created by doing the contract work. A landowner can assume that an independent contractor is sufficiently skilled to recognize the dangers associated with its task.

The employee’s claim against his employer was based on the assumption that the actions of the employer satisfied the “intentional wrong” requirement of the workers compensation statute, which states that workers compensation claims do not cover intentional wrongs. Here, the employee claimed that he had never received training concerning the use of the “boom and bucket” of the employer’s truck when in the vicinity of power lines. Further, the truck that was used lacked statutorily-required warnings to alert workers to the danger of operating in the presence of power lines. Lastly, the employee claimed that his employer unduly pressured him to complete the job without regard for his safety.

With that as background, the lower court needed to determine whether this conduct by the employer rose to the level of an “intentional wrong.” To lose the cloak of workers compensation immunity, two conditions must be satisfied: the employer must know that its actions are substantially certain to result in injury or death to the employee; and the resulting injury and the circumstances of its infliction must be more than a fact of life of industrial employment. Lastly, it must plainly be beyond anything the Legislature intended the Workers Compensation Act to immunize.

The Appellate Division affirmed the lower court’s decision that the employer’s actions did not constitute an “intentional wrong.” Being aware of a risk of harm does not equate to having knowledge that there is a substantial certainty of harm. There must be a virtual certainty that the employer’s conduct will result in injury to the employee. Here, the safety violations, lack of training, and attempt to rush the work did not make it virtually certain that the employee would come into contact with the power lines. The employee even admitted frequently working around power lines without incident. Also, the employee had acknowledged that working near power lines is “a hazard of the job.” Under these facts, the Court did not believe that what transpired went beyond what the Legislature would have intended for that specific employment. Therefore, the employee’s sole remedy against his employer was to file a workers compensation claim.

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