The exclusive remedy provision of the Workers' Compensation Act withstands yet another "intentional tort" challenge.

The plaintiff was employed as a laborer for the defendant, a company that recycles wooden pallets and other scrap wood products for use as mulch. The respondent employed the use of several wood grinding machines for this purpose. On May 21, 2007, the plaintiff was attempting to dislodge debris from the wood grinder he was operating when his jacket wrapped around the grinder's drive shaft and dragged him into the machine. He sustained significant injury.

The plaintiff brought an action in tort against the defendant alleging that, at the time of his injury, the defendant had removed a safety guard from the wood grinder, making it virtually certain that the plaintiff would be injured, thereby overcoming the exclusive remedy provision, N.J.S.A. 34:15-8, of the Workers' Compensation Act. Although the Act provides that the exclusive remedy is available to employees injured by accident during the scope of their employment, an employee may bring an action against his employer at common law for any act or omission which is an "intentional wrong." This is the so-called "intentional tort" exception.

At trial, the plaintiff's engineering expert testified that when the wood grinder in question was originally manufactured, the drive shaft was covered by a metal screen which, had it been in place, would have covered the entire length of the drive shaft and prevented the plaintiff's injury. The plaintiff's expert further opined that the defendant had an obligation to make reasonable safety inspections of the machine, which, had they been undertaken, would have revealed the missing screen. The plaintiff's testimony, and that of his co-worker, confirmed that there was no metal screen covering the drive shaft at the time of the injury, and that neither the plaintiff nor his co-worker had ever seen such a screen in place in the five or six years they had worked for the defendant.

Following the testimony of the plaintiff, his co-worker and his engineering expert, the defendant moved for summary judgment, arguing that, even assuming the screen was missing on the day of the accident, the plaintiff failed to prove that the defendant had removed the screen, either intentionally or otherwise. The court granted the defendant's motion, finding no evidence that the defendant had ever altered, or intentionally done anything, to the wood grinder. The plaintiff appealed.

In affirming the lower court's granting of summary judgment, the Appellate Division relied on Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 161 (1985) and it's progeny. In Millison, the Supreme Court adopted a "substantial certainty" standard to be utilized in evaluating employer intentional tort actions. Quoting W. Prosser & W. Keeton, The Law of Torts, §8 (5th Ed., 1984), the Court explained:

The mere knowledge and appreciation of a risk—something short of substantial certainty—is not intent. A defendant who acts in the belief or consciousness that an act is causing an appreciable risk of harm to another may be negligent, and if the risk is great, the conduct may be characterized as reckless or wanton, but it is not an intentional wrong.

The Appellate Division concluded that there was nothing in the record to support the plaintiff's claims that the defendant removed the metal screen, evidencing a deliberate intention to injure the plaintiff or a substantial certainty that such injury would occur. "While it might be said that defendant ignored various safety precautions and regulations, and in doing so created a greater risk of injury to plaintiff," the Appellate Division reasoned, "we are convinced that it does not amount to an intentional wrong that allows plaintiff to avoid the workers' compensation bar."

Case Law Alerts, 3rd Quarter 2013