In Van Dunk v. Reckson Associates Realty Corporation, (A-69-10) (066949), the Supreme Court of New Jersey on June 26, 2012 reversed an appellate division decision that had promised to breathe life into suits against employers for intentional harm.
Reckson Associates Realty Corporation and Reckson Construction contracted with James Construction Company to build a retention pond and other structures. Plaintiff Van Dunk was employed as a laborer for James Construction. Glenn Key was James’ superintendent for the project. The project was experiencing difficulties because of extremely high rainfalls and was behind schedule.
On August 10, 2004, the parties were working on relocating a dewatering sump. To do that there had to be an excavation and construction of a trench which had to be lined with geo-textile fabric. The crew experienced problems in stretching out the fabric over the trench. Plaintiff Van Dunk volunteered to go into the trench and fix the fabric but Key stopped him and told him not to do it given safety risks and possible trench collapse.
The crew continued to drape the filter cloth over the trench, at which point Key saw “some cracking in the bank” of the trench. Key ultimately became frustrated with the lack of progress and allegedly directed plaintiff to get the fabric to lay correctly. That direction was in violation of OSHA’s non-discretionary requirements because the trench had no protective system. According to OSHA regulations, every employee in a trench excavation must be protected from cave-ins by an adequate system. There was no “trench box” to make the trench more stable.
Within five minutes after he went into the trench, plaintiff was buried up to his chest in mud and dirt as the trench collapsed on him. He was treated for multiple injuries at Morristown Memorial Hospital and work was temporarily suspended pending an OSHA investigation. OSHA issued James Construction a citation for a “willful” violation of its regulations for failing to protect its employees from a cave-in. The company was fined $49,000.
Plaintiff sued his employer civilly and the company moved to dismiss on the grounds that workers’ compensation is the exclusive remedy. Plaintiff argued that James’s actions constituted an intentional wrong and therefore were beyond the workers’ compensation bar. The trial judge dismissed plaintiff’s complaint as barred by the exclusive remedy provision, and plaintiff appealed.
In a reported decision, the Appellate Division found that the company intentionally disregarded plaintiff’s safety in an effort to “increase defendant’s profit and productivity.” It said, “The fact that plaintiff’s safety was sacrificed for defendant’s benefit is reinforced by the events following his accident. After OSHA had finished its investigation, defendant was able to relocate the sump by using the trench box it had on site without harm to any of its employees.” While the Court did not find deception by the defendant or removal of a safety device, it felt that the actions of the defendant were akin to deliberately exposing plaintiff to a known hazard. The Court further commented that this sort of injury is not a fact of industrial life (the “context” prong of the Millison test) and that there were simple safety devices that could have been used to prevent this injury.
Reckson Associates appealed to the Supreme Court which accepted certification. The Court reviewed the extensive case law dealing with intentional harm claims, including recent cases in the past 10 years. The Court held that neither the conduct nor the context prongs of the Millison substantial-certainty test was satisfied in this matter. It said that a finding of an OSHA violation does not equate to an intentional wrong.
We decline to find that every willful OSHA violation constitutes an intentional wrong for purposes of the Act. To do so could produce detrimental consequences, such as encouraging employers to dispute OSHA violations rather than negotiate a penalty and move on, having corrected and been penalized for the error. We therefore conclude that the issuance of a willful violation against James is insufficient to defeat the employer’s motion for summary judgment, and turn to consider the totality of the circumstances of this accident, including both the conduct and context prongs of the substantial-certainty standard.
The Court concluded that the superintendent, Key, made a decision against his better judgment. “One cannot conclude that there was an objectively reasonable basis for concluding that the violation of safety protocol was substantially certain to lead to injury or death during the few minutes plaintiff was going to be in the trench, although the risk of harm did blossom, in fact, into serious bodily harm for plaintiff.”
The Court distinguished reckless acts from intentional acts. “The employer may have committed a reckless act; it could be possible to find gross negligence on these proofs. Nevertheless, as the trial court found, plaintiff did not satisfy the conduct prong of the substantial-certainty test of Millison. The Court added that the context prong was also not met. It said, “one cannot reasonably conclude that the type of mistaken judgment by the employer and ensuing employee accident that occurred on this construction site was so far outside the bounds of industrial life as never to be contemplated for inclusion in the Act’s exclusivity bar.”
What this means is that it is truly a rare case in which an employer may be sued for intentional harm in New Jersey. The workers’ compensation bar is a powerful one and will block all but the most egregious claims for intentional harm.