June 28, 2012
NJ Supreme Court Re-Affirms Significant Threshold for Workers' Compensation Act Exclusivity Bar
Written By: Todd J. Leon
On June 26, 2012, the Supreme Court of New Jersey issued its unanimous opinion in Van Dunk v. Reckson Associates Realty Corp, et al., which re-affirmed the extremely high hurdle that plaintiffs must vault in order to circumvent the exclusivity bar imposed by the Workers’ Compensation Act. This is an important decision for employers who are concerned about being sued by their employees in the Superior Court of New Jersey for compensatory and punitive damages arising out of injuries (or death) suffered in the course of employment.
In Van Dunk, the plaintiff was working for a contractor who was excavating a trench in order to relocate a dewatering sump in a retention pond. Because of inclement conditions, the project was behind schedule. On the date of loss, because rain was looming, the plaintiff’s project supervisor wanted to expedite the work. The trenching process required the laying of filter fabric from positions outside the trench, which was dug as deep as 20 feet. When the fabric did not lay flat, Van Dunk offered to go into the trench to smooth it out. The project superintendent initially refused to allow Van Dunk to do so. However, after efforts to smooth the fabric from outside the trench failed, the supervisor, in what the Supreme Court described as “a moment of frustration”, told Van Dunk to go in. He was in the trench for less than five minutes, when a trench wall caved in and buried him up to his chest, causing Van Dunk to suffer severe injuries. Subsequent to the accident, the plaintiff's employer was cited with a “willful violation” of OSHA.
Van Dunk filed suit against the general contractor for the project (Reckson) and his own employer (James Construction). Pursuant to the exclusivity bar of the Workers’ Compensation Act – which limits the right of an employee to sue an employer, the employer was granted summary judgment by the trial court. The court’s ruling was predicated upon its finding that the employer's conduct was not an “intentional wrong” in order for an employer to be excepted from the Act’s exclusivity bar. The Appellate Division reversed the Law Division, and found that Van Dunk presented sufficient proofs to sue his employer based upon its “intentional” conduct. In so holding, the appellate panel focused upon OSHA’s finding that the employer committed a willful violation. The Appellate Division’s decision appeared to signal a slight retreat from the significant burden imposed upon plaintiffs seeking to sue their employers for injuries that occur on the job.
The Supreme Court, reversing the Appellate Division, traced the history and interplay of both the Workers’ Compensation Act and OSHA, as well as the significant line of New Jersey case law interpreting what conduct qualifies as “intentional” to permit an employee to seek damages in the Superior Court. Ruling that the employer’s conduct was not sufficiently egregious as to permit Van Dunk to sue, the Supreme Court relied heavily upon its 1985 decision in Millison v. E.I. du Pont de Nemours & Co. and its 2002 decision in Laidlow v. Hariton Machinery Co. In Millison, the court announced a departure from the “deliberate intention to injure” standard that had been imposed upon plaintiffs seeking to sue their employers. Rather, the court developed a “substantial certainty” standard, which requires a plaintiff to show that his or her employer engaged in conduct that was a “virtual certainty” to lead to injury.
Moving forward, Van Dunk is a valuable decision for the defense bar, as it stands as an emphatic endorsement by our Supreme Court of the extremely high threshold of proofs that injured employees need to meet in order to sue their employers for workplace injuries. Absent a showing of egregious conduct by the employer, which places the employee in a situation presenting a “virtual certainty” of injury, employees will not be able to seek recovery from their employers beyond the remedies permitted under the Workers’ Compensation Act. Finally, Van Dunk is notable for its holding that an OSHA finding of a “willful violation” by an employer, standing alone, will not suffice the “substantial certainty” standard.
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