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Gross Negligence Is Insufficient For Plaintiff To Prove Intentional Harm Claim

Plaintiffs’ counsel continue to assault the citadel that is the exclusive remedy defense in the New Jersey Workers’ Compensation Act. Once again a New Jersey court has held that no intentional harm was proven.

Craig Kane worked for the County of Burlington as an HVAC mechanic. He also owned his own mechanical business. He was asked by his immediate supervisor, Ken James, to hoist a compressor to the roof of a building by hand. This is something plaintiff had done 20 times before but always with a crane for heavy compressors.

Plaintiff was in excellent physical shape, able to dead lift 570 pounds and bench press 375 pounds. Although his supervisor asked him to do this task unassisted, the County Assistant Superintendent assigned a co-worker, Donald Staiger, to work with plaintiff.

When they arrived on the job on June 26, 2009, both men saw that there was no crane to help raise the 121-pound compressor to the roof. They decided that plaintiff would stand on the roof of the Library to pull the compressor upward, while Staiger would guide the compressor from below. While hoisting the compressor, the rope slid from plaintiff’s hands, causing him to fall backwards and strike his head.

Plaintiff obtained workers’ compensation benefits but also brought suit against the County for intentional harm. He alleged that his supervisor had a grudge against him because plaintiff had once reported him to management for using racial slurs on the job. That report had led to James’ suspension without pay for 12 days. For his part, James admitted the grudge existed and asserted that he had been innocent.

Plaintiff’s expert gave an opinion that hoisting a heavy compressor by hand to the roof was extremely dangerous. He said that using a crane would have removed the danger. He further testified that there was a substantial certainty of harm posed by this operation.

The trial judge ruled in favor of the County and granted the County’s motion for summary judgment. The Appellate Division reviewed case law on intentional harm claims and noted that it is not sufficient simply to appreciate that there is a risk of harm. The court said, “In evaluating James’s order that plaintiff and Staiger haul the compressor to the roof, we must avoid the distorting effect of hindsight. The issue is what James actually knew before the day in question, not what he should have known.”

Regarding the grudge between plaintiff and his supervisor, the court held that any causal link was broken by the fact that another man, Staiger, ultimately assisted the plaintiff in raising the compressor. The court held, “Notably, nothing in the record demonstrates that James or Watkins subjected plaintiff to a risk of injury knowing that injury was a virtual certainty. At most, their conduct was an instance of gross negligence, or a wanton disregard for the safety of another, but such conduct is insufficient to overcome the workers’ compensation bar.”

The case emphasizes yet again how difficult it is in New Jersey to successfully maintain a suit against one’s employer for intentional harm. The case may be found at Kane v. County of Burlington, A-2342-10T3 (App. Div. December 9, 2011). For further information, readers may contact Betsy Ramos, Esq. of Capehart Scatchard, who represented the County of Burlington.

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