CP#-066949. Kenneth van Dunk, Sr., et al. v. Reckson Associates Realty Corporation, et al. (A-69-10) (066949).

• Court: New Jersey

New Jersey Workers Compensation 2012. CP#-066949. Kenneth van Dunk, Sr., et al. v. Reckson Associates Realty Corporation, et al. (A-69-10) (066949) Kenneth van Dunk, Sr., et al. v. Reckson Associates Realty Corporation, et al. (A-69-10) (066949)Argued October 12, 2011 -- Decided June 26, 2012LAVECCHIA, J., writing for a unanimous Court. The Court considers whether the defendant employer committed an intentional wrong that allows the injured employee to avoid the exclusive remedy provided by New Jersey's Workers' Compensation Act, N.J.S.A. 34:15-1 to -128.5, and pursue a common-law tort action for his workplace injuries. An investigation by the federal Occupational Safety and Health Administration (OSHA) revealed that James had not complied with safety requirements for trenches. The project superintendent acknowledged to OSHA that he knew the requirements and failed to follow them. The OSHA report concluded that James had committed a willful violation and assessed a fine. James did not contest the violation. The Appellate Division reversed, holding that Van Dunk had produced sufficient evidence to show that James had committed an intentional wrong, rendering Van Dunk's lawsuit free of the Act's exclusivity bar. 415 N.J. Super. 490 (2010). The Supreme Court granted James's petition for certification. 205 N.J. 81 (2011). HELD: In this case in which an employee is suing his employer for injuries sustained on the job, the employer's conduct fell short of an intentional wrong creating a substantial certainty of bodily injury or death; therefore, the workers' compensation statutory bar against common-law tort actions precludes this action. 1. The New Jersey Workers' Compensation Act (Act) requires swift and certain payment, without regard to fault, to an employee who sustains workplace injuries. In exchange for this remedy, the employer is immune from liability and the employee surrenders all other forms of relief, including the right to sue the employer. Under the express terms of the Act, this exclusive-remedy requirement can be overcome if the injury was the result of the employer's "intentional wrong." (pp. 12-14) 2. The landmark case interpreting the term "intentional wrong" is Millison v. E.I. du Pont de Nemours and Co., 101 N.J. 161 (1985). In Millison, the Court determined that mere knowledge and appreciation of a risk does not constitute intent. The Court adopted a "substantial certainty" standard, and established a two-step analysis. First, under the conduct prong of its test, the Court examined the employer's conduct in the setting of the case. Second, under the context prong, the Court considered whether the resulting injury or disease and the circumstances under which it was inflicted could fairly be viewed as a fact of life of employment or whether it instead was plainly beyond anything the Legislature could have contemplated as entitling the employee to recover only under the Act. In Millison, the Court found that the plaintiffs' claims of intentional exposure to asbestos failed to meet the substantial-certainty threshold because such hazards were considered within the risks the Legislature contemplated in passing the Act. However, the Court found the existence of a valid cause of action with regard to plaintiffs' second claim that the company and its physicians became aware through company physical examinations that the plaintiffs had contracted illnesses from asbestos exposure and hid that information from them, rather than providing medical treatment, thereby aggravating the conditions. (pp. 14-24) 3. Congress authorized the Secretary of Labor, through OSHA, to establish administrative regulations setting forth employment-safety standards. If an OSHA inspector assessing compliance with the regulations finds a deficiency, the inspector issues an official citation and orders the employer to abate the problem. Here, James was charged with violating the regulations governing the protection of employees in excavations, and it categorized the violation as "willful." Aside from requiring a civil penalty for willful violations, the term "willful" is not defined by the OSHA statute or by the regulations. In support of its findings that the violation was "willful," the OSHA report in this case indicated that the employer knew the requirements and that the work did not comply with the OSHA standards, therefore the employer intended the "result, i.e. noncompliance was not an accident or negligence." (pp. 24-28) 4. A finding of a willful OSHA violation is not conclusive in determining whether the employer committed an intentional wrong for the purposes of the Act. Instead, it is one factor among the totality of circumstances to be considered. In this case, the issuance of a willful OSHA violation against James was insufficient to defeat its motion for summary judgment, so the Court examines the totality of the circumstances of the accident and applies the conduct and context prongs of the substantial-certainty standard. (pp. 28-30) 5. A probability or knowledge that injury or death could result is not sufficient to demonstrate an intentional wrong. Instead, an intentional wrong must amount to a virtual certainty that bodily injury or death will result. In this case, the on-site supervisor made a quick but extremely poor decision and, against his own better judgment, sent Van Dunk into a trench to perform a brief task and get out. The Court does not find an objectively reasonable basis to conclude that the violation of safety protocol was substantially certain to lead to injury or death during the few minutes Van Dunk was going to be in the trench. The Appellate Division's totality of the circumstances analysis overvalued the finding of a willful OSHA violation and parlayed the possibility or probability of a cave-in into satisfaction of the substantial-certainty test. Because a likelihood of injury or death does not equate to a substantial certainty of injury or death, the conduct prong of the Millison test is not satisfied in this case. (pp. 30-34) 6. The context prong of the Millison analysis, which asks whether the injury and circumstances are beyond anything the Legislature could have contemplated as entitling the employee to recover only under the Act, is not satisfied here. The Court cannot conclude that the type of mistaken judgment by the employer and the ensuing accident were so far outside the bounds of industrial life as never to be contemplated for inclusion in the Act's exclusivity bar. (pp. 35-36) 7. Although a reasonable fact-finder could determine that the employer's actions in this case constituted gross negligence, that showing is not enough to overcome the Act's exclusivity requirement. Neither the conduct prong nor the context prong of the Millison substantial-certainty test is satisfied. Accordingly, the Act's exclusivity provision and specifically its statutory bar prevail to bar Van Dunk's action against his employer. (pp. 36-37) The judgment of the Appellate Division is REVERSED. CHIEF JUSTICE RABNER; JUSTICES ALBIN, HOENS, and PATTERSON; and JUDGE WEFING (temporarily assigned) join in JUSTICE LaVECCHIA's opinion. SUPREME COURT OF NEW JERSEY A- 69 September Term 2010 066949 KENNETH VAN DUNK, SR. and DEBORAH VAN DUNK, Plaintiffs-Respondents, v. RECKSON ASSOCIATES REALTY CORPORATION; RECKSON CONSTRUCTION AND DEVELOPMENT LLC; PAULUS, SOKOLOWSKI and FLEMING, INC.; and JOSEPH FLEMING, P.E., Defendants, and JAMES CONSTRUCTION COMPANY, INC., Defendant-Appellant. Argued October 12, 2011 - Decided June 26, 2012 On certification to the Superior Court, Appellate Division, whose opinion is reported at 415 N.J. Super. 490 (2010). George J. Kenny argued the cause for appellant (Connell Foley, attorneys). Glenn M. Gerlanc argued the cause for respondents (Parisi and Gerlanc, attorneys; Mr. Gerlanc and Steven M. Davis, on the brief). JUSTICE LaVECCHIA delivered the opinion of the Court. New Jersey's Workers' Compensation Act (the Act), N.J.S.A. 34:15-1 to -128.5, provides a prompt and efficient remedy for an employee's claim against an employer for a workplace injury. The Legislature made the statutory workers' compensation remedy its preferred mechanism for providing compensation to injured workers. The Act's remedy is exclusive, except for injuries that result from an employer's "intentional wrong"; for those, an injured employee is permitted to maintain a common-law tort action against the employer. N.J.S.A. 34:15-8. A series of cases from this Court have addressed what constitutes an intentional wrong that permits relief from the statutory bar against a common-law action for a workplace injury. As the case law demonstrates, an employer's deliberate intent to injure is not the sine qua non; instead a substantial certainty that injury or death will result must be demonstrated. This appeal tests the limits of that formidable standard. Plaintiff Kenneth Van Dunk and his wife filed this suit in the Law Division after he suffered serious injuries in a trench collapse at a construction site workplace.(fn1) Following discovery, the trial court granted summary judgment to the employer defendants. Based on its assessment of the totality of circumstances, the court concluded that plaintiff did not demonstrate an intentional wrong within the meaning of the Act, notwithstanding that the employer was issued a federal Occupational Safety and Health Administration (OSHA) "willful...