Van Dunk v. Reckson Associates Realty Corp., 210 N.J. 449 (2012). New Jersey’s Workers’ Compensation Act, N.J.S.A. 34:15-1 to -128.5 (“the Act”), creates what is normally the sole recourse for an employee who is injured on the job to be compensated for his or her injuries by his or employer. There is an exception, however, where the employer has committed an “intentional wrong.” But that exception is a very narrow one, as this case shows. In a unanimous opinion by Justice LaVecchia, the Supreme Court acknowledged that the circumstances here were “tragic,” and probably amounted to “gross negligence.” But that did not suffice to avoid the Act’s bar against litigation.
Plaintiff Van Dunk worked for defendant James Construction Co. (“James”) on a construction site. Plaintiff was digging a trench into which was to be placed a dewatering sump in a retention pond. Part of the process involved laying down filter fabric within the trench. At first, Van Dunk and others laid down the filter fabric from a location outside the trench, which was more than five feet deep. When the fabric would not lay flat, however, Van Dunk’s supervisor, acting in frustration, told him to go into the trench and fix the fabric. Van Dunk did that, and after a few minutes the trench caved in, burying him up to his chest and causing multiple serious injuries.
Both OSHA and James itself had rules requiring that workers cannot enter a trench that is more than five feet deep unless protective systems are in place in the trench. The James supervisor admitted that he did not follow those requirements when he directed plaintiff to go into the trench. OSHA found that James had committed a willful violation of OSHA regulations and assessed a fine.
Plaintiff then filed suit. The Law Division granted summary judgment to defendants on the grounds that the “intentional wrong” standard had not been met. The Appellate Division reversed. James petitioned for certification, which the Supreme Court granted. The Court then reversed the Appellate Division, finding that the facts did not add up to an intentional wrong.
Justice LaVecchia’s opinion provides a detailed history of New Jersey caselaw under the “intentional wrong” doctrine. The opinion also demonstrates that, under both federal decisions and the Court’s own prior rulings, OSHA’s issuance of a “willful” violation has not been considered to mean that the wrongful conduct was necessarily intentional. As a result, the Court “decline[d] to find that every willful OSHA violation constitutes an intentional wrong for purposes of the Act.”
Moreover, circumventing the Act’s bar requires “a virtual certainty that bodily injury or death will result” from the wrongful conduct. “A probability, or knowledge that such an injury or death ‘could’ result, is insufficient.” Prior cases that allowed suit all involved more egregious circumstances, such as the employer’s affirmative removal of safety devices, prior injuries, complaints or OSHA citations, or deceit. None of that was present here. This was an isolated incident, “an exceptional wrong,” born of “frustration,” not “an intentional wrong.” As a result, Van Dunk’s remedy was limited to the sums made available by the Act. He could not sue.