As a Workers’ Compensation attorney, I get asked a lot of questions by injured workers wondering what their rights after they have been involved in an accident. One question I’m asked quite often is “Can I sue my employer if I’m injured at work?”

The short answer to this question is: NO. The exceptions are far and few between, but basically, the employee must prove that the employer knew with substantial certainly that an injury would occur. In most cases this is difficult for the injured worker to prove.  

The leading case on proving an intentional negligence claim against an employer is Millison v. E.I. duPont de Nemours & Co., 101 N.J. 161 (1985). In this case the employees were able to prove an intentional wrong by E.I. duPont in deliberately concealing medical evidence of work-related asbestos conditions in the work place. In Millison the court held that there is a two-part test to use when attempting to prove that the employer deliberately intended to cause harm:

  1. The employer must exhibit conduct that reveals substantial certainty of harm, well beyond negligence or recklessness; and
  2. The circumstances in which the injury or illness takes place must be beyond anything the Legislature intended when they made the law allowing employees to recover only under the Workers’ Compensation Act. 


In other words, those risks that are a normal risk of employment are not included in this exception.

Until 2002, the standard to decide whether conduct rose to the level of intentional harm was so difficult that in order to sue an employer, an employee had to prove that the employer created a virtual certainty of harm. The newer leading case is Laidlow v. Hariton Machinery Co., Inc., 170 N.J. 602 (2002). Mr. Laidlow worked as a setup man who had to insert metal bars into a channel that led to a rolling mill. He was severely injured when his glove got caught while pushing a bar and his hand got pulled into the roller. OSHA has previously noted this activity as a violation — and the employer did not comply with OSHA’s citation — thus causing the employee to get injured.  

The employer argued that Mr. Laidlaw’s exclusive remedy was in the workers’ compensation court, and that he could not sue the employer because there was no evidence of intentional wrong. The Supreme Court rejected the “intentional wrong” test and laid out a new two-part test that requires “substantial certainty” of injury by the employer:

  1. The employee must show there was a substantial certainty of injury known by the employer; and
  2. The injury and circumstances surrounding it must not be part and parcel of everyday industrial life.

For information on this issue, feel free to contact me in my frim’s Marlton, New Jersey office. I’d be happy to meet with you to discuss any questions you may have in more detail.