Until 2002, the standard employed to decide whether conduct constituted intentional harm was so rigid that it basically amounted to proving that an employer created a virtual certainty of harm. Then came a series of decisions from the New Jersey Supreme Court which opened up the exclusive remedy provision. One of the leading cases is Laidlow v. Hariton Machinery Co., Inc., 170 N.J. 602 (2002), Rudolph Laidlow worked as a setup man, which required him to insert metal bars into a channel which led to a rolling mill. He sometimes applied pressure to the bars to feed them into the rollers. One day his glove got caught while pushing a bar, and his hand was yanked into the roller, causing numerous amputations and loss of skin.
The facts revealed that his employer never engaged the safety guard. When OSHA inspectors came to the plant over the years, the supervisor would instruct employees to release the wire which was holding up the safety guard. When they would leave, the safety guard would then be disengaged.
There were “near misses” over the years, and Laidlow spoke to his supervisor, Mr. Portman, three times prior to the accident about the need to engage the safety guard. Mr. Portman ignored Laidlow’s request. Plaintiff’s engineering expert testified that there was a “virtual certainty” of injury to Laidlow or others without using the safety guard.
The employer argued that plaintiff could not sue the employer civilly because there was no evidence of intentional wrong by AMI, the employer. AMI contended that under Millison, supra, plaintiff needed to prove a subjective intent to injure. The Supreme Court rejected this approach. It chose a two-part test:
1. Plaintiff must show there was a substantial certainty of injury; and
2. The injury and circumstances surrounding it must not be part and parcel of everyday industrial life.
Under this test, the Supreme Court concluded a jury might find that the actions of deceiving OSHA showed a substantial certainty of injury known to the employer and that the resulting injury to Laidlow was more than a fact of life of industrial employment.
