No End Run Around Workers Compensation Bar (NJ)

In Fendt v. Abrahams et al, the Appellate Division re-affirmed the strength of the exclusivity section within  New Jersey’s Worker’s Compensation Act. In New Jersey, an employee can avoid the exclusive remedy provision in the Worker’s Compensation Act if: 1) the employer knowingly exposes the employee to a “substantial certainty of injury” and 2) and the injury sustained is not a “fact of life of industrial employment, ” which the New Jersey legislature intended the Worker’s Compensation Act to immunize. However, merely proving a high probability of injury or knowledge that injury or death could result is insufficient to avoid the exclusivity of the Worker’s Compensation Act.

In Fendt, plaintiff was working on a driveway paving job as a traffic flagger when he was struck by a vehicle. Plaintiff’s employer later plead guilty to violating traffic safety laws. In addition, the employer conceded it had traffic safety equipment available, but did not use it. Plaintiff’s expert opined that plaintiff’s employer “knowingly exposed plaintiff to a risk that was substantially or virtually certain to result in harm.” At the close of discovery, the defendant employer was granted summary judgment on the basis that while its conduct may have been negligent, itwas not an “intentional wrong.” The Appellate Division affirmed, noting that while the employer’s conduct may have been grossly negligent, there was no affirmative act taken by plaintiff’s employer that made the workplace significantly less safe for its employees.

The New Jersey appellate courts have consistently limited the “intentional act” exception to the Worker’s Compensation Act. These decisions should provide New Jersey employers with some assurance that they are immune from suit when their employees are injured in the scope of their employment and keep their workers compensation premiums within reason.

Thanks to Alison Weintraub for her contribution to this post. If you have any questions or comments, please email Paul at  pclark@wcmlaw.com