Plaintiff Eric Lopez was badly burned working for Corozal Auto Repair Inc. Lopez filed a civil suit against his employer alleging that the conduct of his employer amounted to intentional harm. The employer argued that Lopez could not sue and that his only remedy was in the New Jersey Division of Workers’ Compensation.
Plaintiff alleged three specific sets of actions by the Auto Repair Shop and its owner amounted to intentional harm. First, he noted that the burns he suffered stemmed from the placement of a drip pan under a car. Gas was dripping from a car that needed repairs, so the shop owner put a drip pan under the car. The next day, the shop owner asked the plaintiff Lopez to help him push the car into a garage bay. As they were pushing the car, a spark ignited probably from the jack propping up the car. That led to a fire, which spread to the plaintiff causing serious burns. Plaintiff argued that the shop owner’s placement of the drip pan under the car to collect the leaking gas was an intentional wrong.
Next, plaintiff argued that the shop owner’s response to the fire in spraying windshield wiper fluid on plaintiff was an intentional harm. When the fire broke out, the shop owner panicked, according to the defendant’s version of facts. He grabbed something liquid, which turned out to be windshield wiper fluid, and poured it on plaintiff. The windshield wiper fluid accelerated the fire because it was a Category 3 flammable liquid.
Lastly, the plaintiff argued that the owner’s failure to have proper fire suppression equipment violated relevant fire codes. The New Jersey Fire Code required repair garages to have fire extinguishers at a certain distance, no less than 30-50 feet. There was only one fire extinguisher where there should have been more. This was a likely violation of the New Jersey Fire Code.
The federal district court reviewed the extensive New Jersey case law on intentional harm and noted that plaintiff must meet the “substantial certainty” test. The court noted that even an injury stemming from gross negligence is insufficient to satisfy the intentional wrong exception. The court quoted from Richter v. Oakland Bd. of Educ., 246 N.J. 507 (2021) for this proposition:
- The employer must know that his actions are substantially certain to result in injury or death to the employee, and 2) the resulting injury and the circumstances of its infliction on the worker must be a) more than a fact of life in industrial employment and b) plainly beyond anything the Legislature intended the Workers’ Compensation Act to immunize.
With respect to the argument concerning the placement of the drip pan to collect leaking gas, the court said that “… knowing that placing a drip pan creates ‘a danger of fire’ is not the same as knowing that placing a drip pan creates a ‘substantial certainty’ of injury or death.” The court reasoned that not all fires lead to injury or death. Further, just knowing that there is some danger is not the same as having substantial certainty that the danger will occur. In this case, the court observed that the shop owner was exposed to the very same risk. The fire just happened to engulf the plaintiff Lopez but could just as easily have engulfed the shop owner as both men were pushing the car into the bay. It made no sense to the court that the shop owner would have taken this action knowing it was substantially certain to injure himself.
With respect to the argument about the windshield washer fluid, the court considered the deposition testimony of the shop owner, who said that when he saw his employee covered in flames, he just reached for the first liquid that he could find. The court found that this effort to provide quick assistance was not in any way consistent with the argument that the shop owner poured the flammable liquid on his employee with substantial certainty that it would injure him. The court agreed that this was a mistake, and a negligent one, but certainly not undertaken by the owner in a split second with intent to harm. The court reflected on the landmark case of Millison v. E. I. duPont de Nemours & Co., 101 N.J. 161 (1985), which noted that any level of intent short of “virtual certainty” would not be enough to establish intentional harm.
Concerning the lack of sufficient fire suppression equipment, the court considered that this would amount to a likely violation of the New Jersey Fire Code. The court said that “… fire code violations are like other safety code violations: standing alone, in the absence of other relevant factors, fire code violations do not count as intentional wrongs for purposes of the New Jersey Workers’ Compensation Act.” The court relied on Van Dunk v. Reckson Associates Realty Corp., 210 N.J. 449 (2012) for the proposition that a violation of a safety code is just one factor in proving an intentional harm claim.
The court said, “There is no proffered evidence, for example, of awareness that one fire extinguisher was not enough; of prior fires; of prior safety complaints; of failed inspections; of other safety issues; of deception of safety regulators, or of a generally casual or reckless culture with respect to workplace safety.”
For these reasons, the federal court dismissed the civil lawsuit and found that the only remedy of the plaintiff was to file a claim petition in the Division of Workers’ Compensation.
This case can be found at Lopez v. Corozal Auto Repair Inc., No. 21cv17366, 2024 U.S. Dist. LEXIS 80642 (D.N.J. May 2, 2024)
The post Federal Court Rejects Intentional Harm Burn Case Filed Against Auto Repair Shop and Holds Only Remedy Lies in Workers’ Compensation Court appeared first on NJ Workers' Comp Blog.
