Article by John H. Geaney

It is certainly not for lack of trying that plaintiffs remain largely unsuccessful in opening the door to intentional harm claims in New Jersey. The door has remained closed in the past 10 years on intentional harm claims and all but locked, including the most recent challenge in Fendt v. Adam L. Abrahams, et. al., A-2333-11T1 (App. Div. April 9, 2013).

Michael Fendt worked in various capacities for Jeffrey Valvano, who operated JV Paving as a sole proprietorship. He would fix equipment, drive machinery, and direct traffic around construction sites. On May 19, 2008, Fendt was working as a “flagger,” stopping traffic on a busy county road so that Valvano could move a backhoe in and out of a driveway. He stood in the center of the road with only a hand-held stop sign. The company had fluorescent jackets, warning signs, cones, and flags available, but Fendt was not provided with any of this warning devices. Valvano did not direct Fendt to utilize the warning devices.

On the date in question, Fendt was doing his work, holding a stop sign, when the defendant Adam Abrahams drove into Fendt, causing serious injuries. Abrahams said that he had taken his eye off the road to look at his radio. He later stated that if there had been warning cones in the road, he would have driven more slowly. The police issued various citations to the company for not having proper construction warning signs and not complying with signage requirements.

Fendt sued the driver of the car, its owner and his own employer. His expert opined that the employer “knowingly exposed (Fendt) to a risk that was substantially or virtually certain to result in harm.” The expert cited the failure to comply with the Manual on Uniform Traffic Control Devices, failure to provide reflective safety vests, failure to comply with OSHA regulations, failure to have a written safety program, failure to adequately train employees in safety procedures, and failure to enforce safety policies to protect workers from harm.

The trial court dismissed the case, and the Appellate Division affirmed. The court said that “intentional harm” encompassed more than a subjective intention to injure. Mere knowledge and appreciation of a risk of harm to the employee does not equate to intent. New Jersey courts have followed the rule in Millison v. E.I. Du Pont de Nemours & Co., 101N.J. 161 (1985), namely that there must be a showing of “substantial certainty.” First, the employee must knowingly expose the employee to a substantial certainty of injury. Second, the resulting injury must not be a “fact of life of industrial employment.”

The court also cited the recent Supreme Court decision in Van Dunk v. Reckson Associates Realty Corp., 210 N.J. 449 (2012) where plaintiff’s suit for intentional harm failed even though the workplace accident produced an OSHA citation for a “willful” violation of OSHA safety rules. The Court said that even a finding of a willful violation under OSHA does not alone suffice to prove whether the employer committed an intentional wrong.

The Appellate Division found that this case had some parallels to Van Dunk, given the OSHA citations, fines, and failure to use safety devices. It cited Van Dunk and a string of cases where plaintiff made out strong cases for intentional harm 10 years ago. “Similar toVan Dunk, while the facts here amount to negligence, perhaps even gross negligence, they do not approach the facts in cases such as Millison, Laidlow, Mull, and Crippen. In those cases, the employer was responsible for an affirmative act that made the workplace significantly less safe for its employees. The record contains no such affirmative act by the employer here.”

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This blog article was researched and written by John H. Geaney, a member of the executive committee and equity partner at the law firm of Capehart Scatchard. The content of the this article is intended to provide general information on the topic presented, and is offered with the understanding that the author is not rendering any legal or professional services or advice. This article is not a substitute for legal advice. Should you require such services, retain competent legal counsel.