The Appellate Division Beats Back Another Challenge to the Intentional Injury Exception of the New Jersey Workers’ Compensation Statute
By Robert J. Fitzgerald, Esq.*
The New Jersey Superior Court Appellate Division has rejected another challenge to the intentional injury exception of the New Jersey workers’ compensation statute. The Appellate Division has again affirmed the exceptionally high bar a plaintiff must overcome to get around the workers’ compensation bar.
In Denise Spatola v. Seabrook Bros. & Sons, Inc., et al., 2019 N.J. Super. Unpub. LEXIS 1042 (N.J.Super. App. Div. May 7, 2019), the plaintiff appealed from an order granting summary judgment to her employer with regard to her civil action. Seabrook Brothers & Sons processes fresh and frozen vegetables. At the time of the accident, the plaintiff was working as a data clerk in the repack location, which is the area where frozen vegetables are sorted and packed. Forklifts bring large bins of frozen vegetables from the warehouse into repack throughout the day. Data clerks were required to cross the forklift lane in order to place labels on finished bins of frozen vegetables.
On the date of the work injury, the plaintiff was waiting for some forklifts to clear the area before walking to the vegetable station, a distance of 12 feet. She indicated that when she saw a forklift out of the corner of her eye, she put her hands up and screamed, “Stop!” The forklift operator did not see her and ran over her foot, causing injuries.
Three weeks after the work accident, the Occupational Health and Safety Administration (OSHA) made an unannounced visit to the employer’s work site. OSHA did not find any violations and concluded in its report that the employer “met its legal obligation to protect [its] employees.” The location was described as a “small place” and “very congested,” as there are approximately 50 employees working in the area, seven forklifts moving in and out, and many bins of frozen vegetables. As a result, there have been numerous reported and unreported forklift accidents in and around the surrounding warehouses. Nineteen documented forklift accidents had occurred at the employer’s facilities in the 40 months prior to the plaintiff’s incident. Eight of them were in the repack location.
The plaintiff filed a civil action in which she alleged that the employer’s intentional conduct in failing to train its forklift drivers caused her injuries. After what the trial court described as extensive discovery, the employer moved for summary judgment. The trial judge found that the plaintiff was unable to meet the “high threshold” require to show that the employer’s conduct was an intentional act sufficient to overcome the workers’ compensation bar. The judge noted it was “pretty hard for [him] to find that [the employer] did an intentional act in causing [plaintiff’s] injury when OSHA didn’t find any violations whatsoever.” The judge also determined the employer had no intent to deceive the plaintiff or OSHA. In addition, he noted, “[t]he plaintiff failed to prove the intentional wrong because [she] could not show an affirmative act by the employer beyond the employer having knowledge of the risk posed to the plaintiff and other employees.” Finally, the judge determined this accident was “clearly part of industrial life” and of the type the legislature intended to be covered under the exclusive remedy of the Workers’ Compensation Act.
On appeal, the plaintiff alleged, among other things, that she established both the conduct and context prongs of the intentional wrong exception. The court first looked at the historical background giving rise to the workers’ compensation statute.
The New Jersey Supreme Court described the Act “as an historic ‘trade-off’.” By implied agreement, employees give up their right to pursue common law remedies for work-related injuries and illnesses in return for an automatic entitlement to a limited recovery. Similarly, the employer accepts strict liability for workplace injuries in return for limited and definite financial exposure. This system is accomplished through the Act’s exclusive remedy provision:
If an injury or death is compensable under this article, a person shall not be liable to anyone at common law or otherwise on account of such injury or death for any act or omission occurring while such person was in the same employ as the person injured or killed, except for intentional wrong. [N.J.S.A. 34:15-8.]
The court then went on to note the high burden of proof a plaintiff has in order to prove an intentional injury.
The standard for proving the ‘intentional wrong’ exception is ‘formidable.’ It is ‘interpreted very narrowly in order to further [the] underlying quid pro quo goals [of the Act], so that as many work-related disability claims as possible [can] be processed exclusively within the workers’ compensation system.’ If the exception is ‘interpreted too broadly,’ it could ‘swallow up the entire ‘exclusivity’ provision of the [Act],’ because ‘virtually all employee accidents, injuries, and sicknesses are a result of the employer or a co-employee intentionally acting to do whatever it is that may or may not lead to eventual injury or disease.’
The court also described the two-prong test utilized in determining whether an intentional injury occurred. To satisfy the “conduct” prong, a plaintiff must show her employer acted with “substantial certainty” that injury or death would result. The conduct must be so egregious that there is a virtual certainty of death or injury, mere knowledge of a risk is not enough. To satisfy the context prong, a plaintiff must show the injury is “more than a fact of life of industrial employment” and “plainly beyond anything the Legislature [would have] intended [the Act] to immunize.” The plaintiff bears the burden of establishing both the “conduct” and “context” prongs. Absent such egregious conduct, an employee is limited to receiving workers’ compensation benefits.
On this appeal, the plaintiff argued that she had satisfied the conduct prong through her evidence regarding the congestion in repack, the insufficient forklift training and the multiple forklift accidents. However, the court disagreed, noting that the plaintiff was aware of the congested area and the continuous forklift traffic. In addition, she had been trained on forklift safety by the employer and was a certified forklift driver herself. Moreover, the plaintiff failed to show how the employer made the workplace less safe for its employees. The plaintiff also alleged that the employer mislead OSHA regarding its investigation of prior forklift accidents. However, the OSHA report contradicted this allegation, noting that, although there had been several employee injuries involving fork trucks in recent years, the employer’s management was cooperative during the investigation.
The court then went on to state that since the plaintiff failed the “conduct” prong of the analysis, there was no need to address the “context” prong. In concluding its analysis, the court emphasized the high burden of proof required by a plaintiff to prove an intentional injury, holding that the plaintiff could not meet her burden:
As the Supreme Court has stated, a forklift accident is simply ‘a fact of life of industrial employment,’ which was clearly contemplated to fall within the purview of the Act. Plaintiff has not established defendant committed an intentional wrong, and, therefore, she is limited to the remedies available under the Act.
The issue of what is an intentional injury is one of the most heavily litigated areas in New Jersey workers’ compensation. As once again evidenced by this case, a claim of intentional injury is not likely to succeed without clear proof that an employer’s egregious or despicable conduct lead to a work injury, no matter how severe. While the court can look at almost anything like OSHA records, internal communications, prior litigation, etc., in analyzing whether the employer acted wrongly or tried to conceal safety information, it still must be intentional bad conduct by the employer, not mere negligence. Of course, the best defense to an intentional injury claim is maintaining a good workplace safety program before an injury occurs. Talk with your workers’ compensation defense attorney about performing a comprehensive workplace safety analysis before you end up in litigation.
*Bob is a shareholder in our Mount Laurel, New Jersey office. He can be reached at 856.414.6009 or firstname.lastname@example.org.
Defense Digest, Vol. 25, No. 3, September 2019. Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2019 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact email@example.com.