Typically, employees are barred form pursuing legal action against their employer, and must instead seek redress under the Workers’ Compensation Act. However, there are certain types of conduct between the employer and employee which render the Worker’s Compension Act void. Specifically, employees can take legal action against their employer for an “intentional wrong”, a term which has typically been interpreted quite narrowly by the courts. The Court has now grappled with the proof required for an “intentional wrong.”

In the case of Kenneth Van Dunk , Sr. and Deborah Van Dunk vs. Reckson Associates, et al., the Court articulated a two-prong test that must be satisfied before an employee can file a lawsuit against their employer. First, the employer must know that his actions are substantially certain to result in injury or death to the employee; and second, the resulting injury and the circumstances of its infliction on the worker must be more than a fact of life of industrial employment, and plainly beyond anything the legislature intended the worker’s compensation act to immunize.

The plaintiff in the subject case, Kenneth Van Dunk, was injured on a construction site when a twenty foot trench collapsed on him. Plaintiff was one of six individuals that was installing fabric upon the bottom of the trench. Significantly, a supervisor ordered plaintiff to enter the trench, which eventually caved in. Afterwards, OSHA Investigators found the collapse to be a “willful violation” of federal safety regulations. The Appellate Court found that the circumstances of the case met the above-referenced two-prong test, and thus the case was remanded to the lower court for further proceedings.

Special thanks to Heather Aquino for her contributions to this post. If you have any questions, please contact Bob Cosgrove at .