NJ High Court Rules ‘Willful’ OSHA Violation Doesn’t Overcome Worker’s Compensation Preemption

by Ballard Spahr LLP
Contact

[authors: Amy L. Bashore, Denise M. Kesyer, Steven W. Suflas]

A willful violation of federal safety standards does not, on its own, overcome the worker’s compensation bar against civil suits, the New Jersey Supreme Court ruled in its June 26, 2012 decision in Van Dunk v. Reckson Assocs. Realty Corp.

Worker’s compensation is typically the exclusive remedy when an employee suffers an on-the-job injury. However, there is an exception to worker’s compensation preemption of civil suits when the employer commits an “intentional wrong.”

In Van Dunk, the plaintiff was a laborer on a construction project, working to excavate a 20‑foot‑deep trench. When workers encountered difficulty laying fabric in the trench, the plaintiff volunteered to go into the trench to straighten the fabric. The project manager, who was also the designated on-site “competent person” under the Occupational Safety and Health Act (OSHA) declined his offer because of the risk of a trench collapse. When the problems with the fabric persisted, the project manager, out of frustration, changed his mind and directed the plaintiff to go into the trench to adjust the fabric. Minutes after the plaintiff began adjusting the fabric, the trench collapsed, burying the plaintiff up to this chest and causing multiple serious injuries.

During the on-site OSHA investigation, the project manager admitted that he had knowledge of the relevant OSHA requirements, but did not follow those standards for protecting the trench against cave-ins. OSHA determined that the construction company committed a willful violation of OSHA standards. The plaintiff subsequently brought a civil suit against multiple parties, including his direct employer and the company that contracted with the direct employer, for damages arising from his injuries.

The trial court granted summary judgment to the employer defendants, holding that the plaintiff failed to meet the “intentional wrong” exception to the statutory worker’s compensation bar on civil suits. The Appellate Division reversed. Although the appellate court did not find the OSHA willful violation dispositive, it concluded that it should have been considered.

After hearing oral argument in October 2011, the New Jersey Supreme Court this week reversed the appellate court’s decision. The Court first held that a willful OSHA violation is not dispositive as to whether the employer committed an intentional wrong. However, the Court agreed with the appellate court that such a violation should  be considered as one factor in the totality of circumstances.

Next, the Court reaffirmed the standard for “intentional wrongs” first espoused in Millison v. E.I. du Pont de Nemours &Co.—a two-step analysis that requires a court to consider both conduct and context.

Under the “conduct prong,” courts determine whether the employer knew that its actions were substantially certain to result in injury or death to the employee. (“Substantially certain” is defined as virtually certain, more than gross negligence.)

Under the “context prong,” courts look for a showing that the resulting injury and the circumstances of its infliction on the worker was more than a “fact of life” of industrial employment, but instead was plainly beyond anything the legislature intended the Workers’ Compensation Act to immunize.

In Van Dunk, the Court applied the Millison factors and concluded that the plaintiff failed to meet the conduct prong.  The Court concluded that the alleged conduct fell short of the egregious circumstances of prior cases, which involved affirmative actions to remove safety devices, prior OSHA citations, deliberate deceit, knowledge of prior injuries or accidents, and/or previous complaints by employees as well as evidence of long-term OSHA or safety non-compliance. By contrast, the Court characterized the project manager’s decision in Van Dunk as a quick one, made out of frustration, for an employee to perform a brief task. Such circumstances do not give rise to a substantial certainty of injury or death. The Court also concluded that the plaintiff had not met the context prong.

Significantly, the Court was also critical of the Appellate Division’s reliance on the plaintiff’s argument that the defendants allegedly disregarded safety to increase profit and productivity. The Court noted that such a standard was too broad and invited the possibility that it would inappropriately chasten an employer that acts with economic business motivation.

With the Van Dunk decision, New Jersey’s Supreme Court declined to expand Millison beyond the egregious circumstances presented in prior case law or to allow further erosion of worker’s compensation immunity for employers.

Ballard Spahr’s Labor and Employment Group routinely assists employers in OSHA compliance. Additionally, our product liability attorneys have substantial experience defending industrial workplace accident claims, including successfully refuting claims of waiver of the tort immunity afforded by the Workers’ Compensation Act. For more information, please contact Steven W. Suflas at 856.761.3466 or suflas@ballardspahr.com, Denise M. Keyser at 856.761.3442 or keyserd@ballardspahr.com, Amy L. Bashore at 856.761.3402 or bashorea@ballardspahr.com, or the Ballard Spahr attorney with whom you work.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Ballard Spahr LLP | Attorney Advertising

Written by:

Ballard Spahr LLP
Contact
more
less

Ballard Spahr LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.