Appellate Division affirms a trial court’s dismissal of an employee’s tort action against his employer based on the exclusive remedy provision of the Workers’ Compensation Act.
In this per curiam decision, the Appellate Division affirmed a grant of summary judgment in favor of an employer based on the “exclusive remedy” provision of the New Jersey Workers’ Compensation Act. Under the Act’s exclusive remedy provision, filing a tort action against one’s employer is prohibited except where the employer has committed an “intentional wrong.” Here, the Appellate Division found that, despite numerous OSHA violations calling the employer’s safety practices into question, the employer’s conduct did not to rise to the level of intentional wrong necessary to trigger an exception to the Act’s exclusive remedy provision.
The petitioner was a “special employee” of the employer. On his second day of work, he was instructed by his supervisor to partner up with a forklift operator to stack product in the warehouse. The petitioner’s partner was to operate the forklift, and the petitioner was to ride on the back of the forklift to assist in loading and unloading pallets. It was the employer’s longstanding practice to pair employees in this fashion to hasten the pace with which pallets were loaded and unloaded. While riding on the back of the forklift, the petitioner’s partner inadvertently backed the forklift into a beam, resulting in significant injury to the petitioner’s leg.
Following the accident, OSHA issued multiple citations to the employer, including one classified as “willful,” for a violation of 29 C.F.R. 1910.178(m)(3), for allowing an employee to ride on a forklift.
The petitioner filed a complaint against the employer for compensatory and punitive damages, alleging intentional wrongdoing on the employer’s part as the petitioner’s supervisor had directed him to ride as a passenger on a forklift in violation of federal workplace safety regulations. The petitioner pointed to the fact that the employer received OSHA citations within days of his accident as evidence of the employer’s wrongdoing and knowledge of the existing risk. The employer asserted as an affirmative defense that the petitioner’s claim was prohibited by the Workers’ Compensation Act’s exclusive remedy provision. Once discovery was completed, the employer moved for summary judgment. After hearing oral argument, the trial court granted the employer’s motion, finding that the petitioner failed to demonstrate that his workplace accident met the intentional wrong standard. Accordingly, the petitioner’s complaint was dismissed with prejudice. This appeal ensued.
On appeal, the petitioner argued that the trial court misinterpreted the Act and again asserted that the employer’s conduct did rise to the level of an “intentional wrong,” thereby exempting the petitioner’s claim from the exclusive remedy provision of the Act.
In affirming the trial court’s dismissal of the negligence action, the Appellate Division relied on Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 161 (1985). In Millison, the Supreme Court delineated a two-prong test to be utilized as an analytical guide for judges who must consider and decide summary judgment motions based on the workers’ compensation exclusivity provision. This test requires not only that the conduct of the employer be examined, but also the context of the event in question:
[T]he trial court must make two separate inquiries. The first is whether, when 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. If that question is answered affirmatively, the trial court must then 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.
Here, the Appellate Division found that the petitioner could not establish either the conduct or context prong as set forth in Millison. As to the conduct prong, the Appellate Division held:
[W]e accept that there was a recurring practice at Minda’s warehouse to allow workers to stand on moving forklifts. So far as the record before us shows, however, no accidents or injuries had resulted from the unsafe practice until [Hocutt’s co-worker] backed into a beam with Hocutt aboard. The absence of proof of prior forklift accidents at Minda’s warehouse suggest the unfortunate accident in this case was not a substantial certainty as demanded in Millison.
Addressing the context prong, the Appellate Division held that, although regrettable, the employer’s practice of allowing its workers to stand on forklifts to hasten the pace with which pallets were loaded and unloaded was not the type of circumstance which the Legislature contemplated would expose an employer to a common law negligence action. As the Appellate Division reasoned:
This unsafe practice . . . appears to reflect a deliberate decision by warehouse supervisors to expedite the movement of goods within the warehouse. That circumstance, however, does not by itself transform the company’s negligence or recklessness into intentional wrong[.] [Although] we believe that these practices are deliberate in the sense that the employer made a business decision to maximize speed and efficiency at the expense of worker safety, such decisions are simply a type of mistaken judgement that is a fact of life in industrial workplaces.
This decision provides a useful benchmark of an employer’s culpability under the Millison standard. Here, the Appellate Division emphasized that violating an OSHA regulation does not per se rise to the level of an intentional wrong. Rather, the Appellate Division concluded that escalation to intentional wrong generally occurs when there is repeated conduct committed in disregard of prior OSHA citations or other warnings. Based on the Appellate Division’s reasoning, this decision suggests that absent a showing of prior accidents or injuries, prior OSHA violations, a failure to abate such OSHA violations, prior complaints from workers about unsafe practices or conduct on the part of an employer evidencing efforts to conceal its safety infractions or deceive safety investigators, it is unlikely that an employer will be found culpable under Millison’s analytical framework.
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