In a recent case,  Van Dunk v. Reckson Associates Realty Corporation, the Supreme Court of New Jersey found in favor of the employer and against the injured worker who was suing his employer for intentional harm.

The injured worker, Mr. Van Dunk, was employed as a laborer for James Construction.  The project was behind schedule because there had been an extreme amount of rain.  Mr. Van Dunk was part of a team of employees who were doing excavation and construction of a trench that had to be lined with fabric. The crew experienced problems in stretching the fabric over the trench, and Mr. Van Dunk volunteered to go into the trench and fix the fabric.  However Mr. Van Dunk’s supervisor told him not to go into the trench because of the dangerous conditions that existed.  

Eventually the supervisor changed his mind and told Mr. Van Dunk to go in to the trench to stretch the fabric, in violation of an OSHA directive not to do so.  Immediately after entering the trench Mr. Van Dunk was buried up to his chest in mud and dirt as the trench collapsed on him causing significant injuries.  The employer was charged with a willful OSHA violation and fined.

Mr. Van Dunk filed a law suit against his employer on the grounds that the supervisor sending him into the trench was in violation of OSHA and was intentionally wrong, and an exception to the general rule that an employee can’t sue an employer for negligence.  At trial, the Judge dismissed the employee’s lawsuit stating that the only action Mr. Van Dunk can take under the law is to file a workers’ compensation case.  Mr. Van Dunk appealed and the Appellate Division found that the company intentionally disregarded his safety in an effort to “increase defendant’s profit and productivity,” and allowed the suit to continue.  The employer then appealed to the Supreme Court of New Jersey.  

The Supreme Court found that while the acts of the employer were reckless, they did not have the requisite intent to harm that is required for an employee to be able to sue an employer for negligence.  The Supreme Court also found that the actions of the employer, and the resulting injury to Mr. Van Dunk, were not so far outside the bounds of what could happen in this type of work environment as to make the harm intentional on the part of the employer.   The Court confirmed the long standing law that in New Jersey an employee is only able to file a workers’ compensation claim, unless they can prove intentional harm on the part of the employer.  

Marci Hill Jordan is a Shareholder in Stark & Stark’s Marlton, New Jersey office, specializing in Workers’ Compensation Law. For more information, please contact Ms. Jordan.