Defeating the exclusive remedy provision of the New Jersey Workers’ Compensation Act requires a high burden of proof.

The respondent filed a motion for summary judgment based on the Workers’ Compensation Act’s “exclusivity provision,” N.J.S.A. 34:15-8, which provides, in relevant part, that, “[i]f any injury ... is compensable under the Act ... a person shall not be liable to anyone at common law or otherwise on account of such injury ... except for an intentional wrong.” The respondent’s motion for summary judgment was denied, and this appeal ensued. In reversing the Superior Court’s ruling, the Appellate Division relied on Millison v. E.I. Du Pont de Nemours & Co., 101 N.J. 161 (1985), under which two conditions must be satisfied for the intentional wrong exception to apply: (1) an evaluation of the conduct of the employer, requiring that the employer must know that his actions are substantially certain to result in injury or death to the employee; and (2) an evaluation of the context of the employer’s conduct, requiring proof that the resulting injury and the circumstances of its infliction on the worker must be more than a simple fact of life of industrial employment and plainly beyond anything the legislature intended the Act to immunize. The Appellate Division opined that, although the respondent’s failure to prohibit the modification of the lift’s safety mechanism did create a risk of injury to its employees, this risk did not rise to a level of danger sufficient to find that the respondent knew its conduct was “substantially certain to result in injury or death to the employee.” Further, the Appellate Division found fatal to the petitioner’s cause the absence of any evidence that would support the conclusion, as a matter of law, that the petitioner’s injury was “plainly beyond anything the legislature could have contemplated as entitling the employee to recover only under the Act.”

_{Case Law Alerts, 4^th Quarter, October 2016. Case Law Alerts is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent 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. Copyright © 2016 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.}