Imagine this: You are working as a server at a wedding hall in northern New Jersey when your boss tells you that you are on flaming pig duty that night. You and a young co-worker, who have never flambéed anything in your lives, proceed to wheel a flaming pig into the wedding hall. All of the sudden, your co-worker goes a little overboard with the grain alcohol that is fueling the fire and you are engulfed in flames. The accident leaves you with permanent scars on your hand, arm, abdomen, and thigh. Your employer’s Workers’ Compensation insurance carrier pays your medical bills, temporary disability, and an award for your permanent injuries.
In this scenario, do you think that you should be allowed to sue your employer for damages that are not available under the Workers’ Compensation system such as pain and suffering or loss of consortium? In September of 2013, an Appellate Court in New Jersey decided a case with this set of facts, and found that the employee was barred from suing her employer in New Jersey Superior Court.
The Workers’ Compensation Bar
Generally, in New Jersey, a worker is barred from suing their employer outside of the Workers’ Compensation system. This is because the enactment of the Worker’s Compensation Law in New Jersey was an historic tradeoff whereby employees relinquished their right to pursue common law remedies in exchange for automatic entitlements to benefits for work-related injuries. As a result the Worker’s Compensation Law provides an exclusive avenue by which an employee who was injured at work can recover from his employer. However, if an employee can prove an “intentional wrong,” he may be able to sue his employer outside of the Workers’ Compensation system.
The Test for an Intentional Wrong
First, an employee must prove that the employer knowingly exposed the employee to a substantial certainty of injury. A probability or knowledge that injury or death could result is insufficient. Examples from cases where courts have found this element satisfied are: an employer’s affirmative action to remove a safety device, prior OSHA citations, deliberate deceit regarding the condition of the workplace, knowledge of prior injury or accidents, and previous complaints from employees. Second, the resulting injury must not be a fact of life of industrial employment and must be plainly beyond anything legislature intended the act to immunize.
In finding no “intentional wrong” in the case of the flaming pig, the Court did not find a substantial certainty of injury. There were no prior accidents or complaints that the employer failed to address as the catering company had never performed the flaming pig ceremony before. The court also found that burns are an expected injury in the restaurant or catering business.