An employee can work for two companies at the same time. When that occurs, the employee cannot sue either company civilly because N.J.S.A. 34:15-8 provides that workers’ compensation is the exclusive remedy for an injured employee. The intentional harm exception is narrowly construed in New Jersey. That is the lesson in the case of Donnerstag v. Winchester Garden, No. A-1916-22 (App. Div. May 9, 2024).
The facts were quite simple in this case. Petitioner worked in 2013 as a live-in caregiver for Brenda White, who was a resident of Winchester Garden. Petitioner began to experience health issues during her years of employment, and she associated them with mold that she saw on the premises. She quit her job in 2021 because she was convinced that mold exposure was causing respiratory issues. She also knew that no remediation had been done on the mold problem.
Donnerstag brought a civil lawsuit against Winchester Garden in July 2020. In August 2023 she moved to amend the complaint to add Synergy Homecare as a co-defendant. She claimed that she only learned through discovery years later that Synergy was her actual employer and that Winchester was only the managing company of Synergy.
There were many procedural problems with the case, but the most interesting aspect of the decision was the criticism by the court of the deficiencies in the civil complaint. “As the judge recognized, Donnerstag’s proposed amended complaint was futile because it alleged negligence claims against Winchester and Synergy – her identified employers.” The Court pointed out that the complaint was very clear in alleging that Winchester was the managing company for Synergy and Donnerstag was an employee of Synergy. She alleged that the two companies were vicariously liable for her respiratory injuries but she only pleaded basic negligence in her civil complaint.
The Court pointed out that it is extremely difficult to get past the exclusive remedy provision in New Jersey. The only exception is an intentional harm case, but the Court emphasized that the New Jersey Supreme Court has interpreted intentional harm to reflect a “substantial certainty standard.” It cited Laidlow v. Hariton Mach. Co., 170 N.J. 602, 613 (2002) for this proposition: “. . . [a]n intentional wrong is not limited to actions taken with a subjective desire to harm, but also includes instances where an employer knows that the consequences of those acts are substantially certain to result in such harm.”
The Court viewed the amended complaint liberally but still found that there was insufficient support for a count alleging intentional harm. The complaint sounded more in negligence than in intentional harm. The Court therefore affirmed the decision of the trial court to bar the amended complaint and dismiss the suit.
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