Where an employee of a contractor was injured in the collapse of an unshored 25 foot deep trench, he filed suit against his employer – asserting that the exclusive remedy of the workers’ compensation act did not bar the suit due to the exception that is granted under the law for injuries resulting from an employer’s “intentional wrong.”  The Supreme Court of New Jersey determined that the circumstances in this case demonstrated poor judgment and was an exceptional wrong, but not an “intentional wrong” within the meaning of that term under the statutory exception to the exclusive remedy of the workers’ compensation statute.  There must be a showing of actual intent to wrong and substantial certainty that the wrong would lead to injury or death of the employee.  In this case none of the facts of the situation provided what the court considered to be “objectively reasonable basis for expecting that a cave-in almost certainly would occur during the brief time plaintiff was sent into the trench.”  Even if the employer were judged reckless or guilty of gross negligence based on the evidence presented, the court held the worker did not satisfy the “conduct prong of the substantial-certainty test” required to get out from under the workers’ compensation act exclusive remedy.  Van Dunk v. Reckson Associates Realty Corp., et al., 45 A. 965 (NJ 2012).

The U.S. Occupational Safety and Health Administration (OSHA) conducted an investigation and found that the “non-compliance [with OSHA standards] was not an accident or negligence,” but concluded that the employer committed a “willful violation” and assessed a fine of $49,000.  The employer did contest the violation but negotiated down the fine to the amount of $24,500.

In its lawsuit against the employer the worker argued that although an issuance of an OSHA willful violation citation does not automatically establish an intentional wrong as defined by the New Jersey workers’ compensation act, “many of the elements underlying a willful violation also support the finding of an intentional wrong.”  Based on a litany of risk factors, the plaintiff asserted that the employer knew that a trench collapse could happen, even if he did not know precisely when it would happen.  He further argued that the employer was improperly motivated by his desire to keep costs down and finish the work quickly at the expense of employee safety.  As stated by the court, “According to plaintiff [the employer’s] decision not to employ protective systems was a deliberate disregard of OSHA regulations that placed employees in a dangerous position.  Thus, Plaintiff asserts that his injury was more than an incidental risk of the job . . . .”

In rebuttal to the plaintiff’s argument, the employer argued that case law precedent did not support a finding that the actions here constituted an “intentional wrong” and that to permit the plaintiff to avoid the exclusive remedy of the workers’ compensation statute and sue his employer would allow for injured parties to pursue independent tort actions based on the possibility of injury, rather than a near certainty.  The plaintiff also asserted that a willful OSHA violation should be given great weight in determining that an intentional wrong was committed.

After reviewing the facts and a number of important case precedents, the court here determined “We decline to find that every willful OSHA violation constitutes an intentional wrong for purposes of the Act.  To do so would produce detrimental consequences, such as encouraging employers to dispute OSHA violations rather than negotiate a penalty and move on, having corrected and been penalized for the error. . . .”  The court then went on to review whether the totality of the conduct shown by the circumstances of the accident evidences an “intentional wrong.”

In doing its review, the court said, “We approach consideration of the conduct prong with some caution. Mere knowledge by an employer that a workplace is dangerous does not equate to an intentional wrong.”  In addition, said the court, “The existence of an uncontested finding of an OSHA safety violation in the wake of this workplace injury does not establish the virtual certainty that [case precedent] demands.  An intentional wrong must amount to a virtual certainty that bodily injury or death will result.  A probability, or knowledge that such an injury or death ‘could’ result, is insufficient.”

For these reasons, the court concluded that the violation of the OSHA safety requirements pertaining to trenches deeper than five feet did not demonstrate there was substantial certainty of injury or death – and the exclusive remedy of the workers’ compensation act must be enforced to bar the litigation against the employer.

About the author: Article written by J. Kent Holland, Jr.,  a construction lawyer located in Tysons Corner, Virginia,  with a national practice (formerly with Wickwire Gavin, P.C. and now with Construction Risk Counsel, PLLC) representing design professionals, contractors and project owners.  He is founder and president of a consulting firm, ConstructionRisk, LLC, providing consulting services to owners, design professionals, contractors and attorneys on construction projects.  He is publisher of ConstructionRisk.com Report and may be reached at Kent@ConstructionRisk.com or by calling 703-623-1932.  This article is published in ConstructionRisk.com Report, Vol. 14, No. 11 (Dec 2012).

Copyright 2012, ConstructionRisk, LLC