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Workplace Injuries: "Intentional Harm" or Merely a Fact of Industrial Life?

The New Jersey Workers's Compensation Act, N.J.S.A.34:15-7 et seq., was intended to "substitute finite liability for the fortuities of the common law remedy." An employer, in exchange for providing workers'' compensation benefits regardless of fault, is granted immunity from common-law suits for work related injuries. Conversely, an employee gives up the uncertain right to sue his employer in a common law suit in return for the certain measure of damages afforded by the Act. Traditionally, the Act provided the exclusive remedies available to a plaintiff injured in the course of his or her employment, unless that plaintiff could demonstrate that their employer had a deliberate intent to cause him or her injury.

Over the years, a number of cases explored the boundaries of what constituted a "deliberate intention to injure". The standard was first set forth by the New Jersey Supreme Court in Millison v. E.I. du Pont de Nemours & Co., and further explored by the New Jersey Appellate Division in Mabee v. Borden, Inc., which held that an employee could prove "intent to injure" not only by evidence of the employer's actual intent to injure, but also by circumstances where the employer "knows an injury is a substantial or virtual certainty."

On February 25, 2002, the New Jersey Supreme Court decided, in Laidlow v. Hariton Machinery Company, Inc., that fact issues as to whether an employer acted with knowledge that it was substantially certain a worker would suffer an injury when the employer had disabled a safety guard would be sufficient to preclude summary judgment in favor of the employer

The plaintiff, Rudolph Laidlow''s hand was caught in a rolling mill he was operating at his place of employment, AMI-DDC, Inc. ("AMI"). Employees had described several "near misses" in the past where gloved hands were caught and almost pulled into the rollers. While AMI installed a safety guard on the roller in 1979, Laidlow testified that the safety guard was always "tied up" to allow for easier access. Laidlow further testified that the safety guard was only put in place when Occupational Safety and Health Administration ("OSHA") inspectors came to the plant. The mill operated without the safety guard in place for approximately twelve to thirteen years, without accident, until Laidlow''s hand was pulled into the roller.

Laidlow sued AMI on an intentional tort theory, and AMI moved for summary judgment on the basis of the Workers'' Compensation bar. In opposition to the motion, Laidlow presented an expert opinion that AMI "knew that there was a virtual certainty of injury to Mr. Laidlow or a fellow worker arising form operation of the mill without a guard." The trial court granted summary judgment to AMI, concluding that Laidlow had failed to demonstrate an "intentional wrong". The Appellate Division affirmed the dismissal, relying on the lack of accidents over a twelve-year period, and determined that OSHA violations alone, in the absence of proof of deliberate intent to injure, would not satisfy the intentional wrong standard.

The New Jersey Supreme Court in Laidlow noted that "an 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." Thus, the Supreme Court found that the context prong of Millison was met when "an employee is injured when an employer deliberately removes a safety device from a dangerous machine to enhance profit or production, with substantial certainty that it will result in death or injury to a worker, and also deliberately and systematically deceives OSHA into believing that the machine is guarded" because "the Legislature would never consider such actions or injury to constitute simple facts of industrial life."

In addition to the "substantial certainty" conduct test, the Supreme Court re-emphasized the "context" second prong to the Millison test that "the resulting injury and the circumstances of its infliction on the worker must be (a) more than a fact of life of industrial employment and (b) plainly beyond anything the Legislature intended the Workers's Compensation Act to immunize.".

However, the Laidlow Court specifically cautioned that it was not "establishing a per se rule that an employer's conduct equates with an "intentional wrong" within the meaning of N.J.S.A. 34:15-8 whenever that employer removes a guard or similar safety device from equipment or machinery, or commits some other OSHA violation. Rather, our disposition in such a case will be grounded in the totality of the facts contained in the record and the satisfaction of the standards established in Millison and explicated here."

The Supreme Court also noted that prior "close calls" are evidence of an employer's knowledge that death or injury are substantially certain to result. To hold otherwise, the Supreme Court stated that it would be "tantamount to giving every employer one free injury for every decision, procedure or device it decided to use."

It should be noted that, subsequently, in Tomeo v. Whitesell, the New Jersey Appellate Division found that, even under the Millison two-prong standard, evidence of intentional disabling by taping down the safety device on a snow blower operated by the plaintiff was insufficient to demonstrate that the defendant-employer "knew there was a virtual certainty that an employee would be injured from using the snow blower in that condition". Mere knowledge that a risk of injury existed was not sufficient to demonstrate an intentional wrong.

As a result of Laidlow, New Jersey courts must make two separate inquiries in cases where the plaintiff seeks relief from his or her employer for workplace injuries beyond those provided by Workers Compensation. The first is whether, viewed in a light most favorable to the employee, the evidence could lead a jury to conclude that the employer acted with knowledge that it was substantially certain that a worker would suffer injury. Then, the trial court must determine whether, if the employee''s allegations are proved, they constitute a simple fact of industrial life or are outside the purview of the conditions the Legislature could have intended to immunize under the Workers'' Compensation bar. Resolving whether the context prong is met is solely a judicial function. If the substantial certainty standard presents a jury question and if the court concludes that the employee''s allegations, if proved, would meet the context prong, the employer''s motion for summary judgment should be denied.

Following publication of the Laidlow opinion, we have already noticed a dramatic increase in the number of cases where plaintiffs injured in workplace accidents are naming their employers, or amending their Complaints to name their employers, as defendants. Indeed, the Laidlow opinion has been echoed by the courts of Wisconsin, which may be a precursor to a national swing towards more expansive definitions of "intentional harm".