T (the Act) generally requires an employee injury is caused by - PDF document

G Employment Law Alert July 2003 Workers’ Compensation Is Not Exclusive Remedy For Workplace Injuries Caused By “Intentional” Employer Misconduct By Martha L. Lester, Esq. and Mark E. Seidel, Esq. he New Jersey Workers’ Compensation Act The finding of whether an employee’s workplace T (the “Act”) generally requires an employee injury is caused by intentional employer who suffers a workplace injury to apply for misconduct will be based on “all the facts and workers’ compensation benefits as the exclusive circumstances.” However, in a number of recent remedy against the employer for that injury. cases, all decided on May 22, 2003, the Supreme However, the Act does permit an employee to Court of New Jersey has recently affirmed the pursue alternative or additional remedies when a importance of three factors in making the workplace injury is caused by “intentional” determination. These factors are whether: (a) the employer misconduct - that is when: machine causing the workplace injury is an industrial machine or a consumer product; (b) the the employer knows that its actions � employee’s workplace injury is attributable to the substantially are certain to cause injury or death to an employee; or A finding of an intentional act is the injury and the circumstances of its � critical to the determination of infliction are more than a fact of life of damages . . . the cost to the employer industrial employment, and plainly beyond can be substantial. the intention of what the Legislature intended to immunize under the Act. employer’s alteration of the machine’s safety devices; and (c) the employee’s workplace injury is A finding of an intentional act is critical to the related to the employer’s deception of OSHA determination of damages. If it is determined that inspectors about the actual condition and an employee’s workplace injury is caused by operation of the machine. intentional employer misconduct, the cost to the employer can be substantial. Such costs may Industrial Machine or Consumer Product: include, without limitation, the cost of defending In Tomeo v. Thomas Whitesell Construction an employee lawsuit in a court of law, and, if the Company , 2003 N.J. LEXIS 560, the employee employee prevails, the financial burden of satisfying worked as an installer of sprinkler systems in a substantial damages award that may include commercial buildings and assisted with snow compensatory and punitive damages. This document is published by Lowenstein Sandler PC to keep clients and friends informed about current issues. It is intended to provide general information only. L Roseland, New Jersey Telephone 973.597.2500 65 Livingston Avenue www.lowenstein.com 07068-1791 Fax 973.597.2400

G removal by operating a snow blower on the [The employee] knew or should have employer’s premises. The snow blower had a system known that propellers were operating of internal propellers to drive the snow through a before inserting his hand into the chute chute. On each side of the snow blower’s handlebars - [the employee] started the engine, were operating levers - a gearshift lever and a safety placed the gear level in forward motion, lever that activated the propellers when squeezed observed snow being ejected through and deactivated the propellers when released. The the chute. . . . In the circumstances, it safety lever was “taped in[to] the operational was not the taping but the insertion of position” with electrical tape. the hand into the chute with the knowledge that the propellers were On one occasion, the employee was instructed to operating that created virtual certainty assist with snow removal on the employer’s [that an injury would occur]. premises using the snow blower. Three times, the snow blower became clogged with wet snow. Each These facts persuaded the Court that the time, the employee used his hand to push snow employee’s lack of care caused his injuries and not down into the chute to be ejected by the propellers. the employer’s alleged misconduct. The Court The third time, the employee suffered injury when reasoned that if “an employee is injured while using he placed his hand into the chute and the a consumer product, as opposed to industrial propellers caught his hand. machinery or other [production] equipment used in the workplace, and the characteristics of the The employee argued that the employer’s product are known to the ordinary consumer or intentional misconduct, evidenced by its use of user, and the harm was caused by an unsafe aspect tape to secure the safety lever in the operational of the product. . . that would be recognized by the position, caused the employee’s injuries. However, ordinary person who uses or consumes the the Court rejected this argument based on its product,” then the employee’s injury is caused by determination that the snow blower was not an the employee’s own negligence, not by any industrial machine ( i.e. “a part of [the] equipment intentional misconduct of the employer. or machinery used to produce or install sprinklers in commercial buildings”), but rather a consumer An Employer’s Alteration of Safety product, subject to commonly understood Devices: standards of consumer care. In Mull v. Zeta Consumer Products et al. , 2003 N.J. The New Jersey Supreme Court observed that LEXIS 561, the employee worked as a line-operator the employee, as a “consumer” of the snow blower, in charge of a machine called a “winder,” which did not observe commonly understood standards of wound plastic bags onto spools for packaging. care when he inserted his hand into the machine. When the winder jammed, the employee was The employee ignored prominent warning labels required to clear the problem by turning off the containing the word “DANGER” and a pictorial machine, lifting its fiberglass guard, and removing description of the dangers of a hand near a rotating the jammed material. On one occasion when the propeller:

G The Employer’s Deception of OSHA winder jammed, the employee turned off the Inspectors: machine to clear the jam but the machine suddenly began to operate while the employee’s hand was In Crippen v. Central Jersey Concrete Pipe Company , inside, badly injuring the employee. 2003 N.J. LEXIS 562, the employee worked as a “material man” who was in charge of controlling the In this case, the Court decided that the movement of sand and gravel onto large loading employee’s injury was caused by intentional hoppers that were located in an elevated shed. To employer misconduct, based in large part upon an activate the lever that controlled the movement of expert’s report that concluded that the winder had sand and gravel, the employee was required to walk been altered by the employer in a manner that on a two-inch-by-ten-inch wooden plank and stand enhanced productivity, but created substantial risk on a six-foot high, unsecured ladder resting on the of employee injury. Specifically, the expert’s report plank. The employee fell into one of the large sand concluded, among other things, that: hoppers and suffocated to death. the winder’s original steel-hinged cover � The New Jersey Supreme Court spoke again. It was replaced with a plexiglass cover; held that the employee’s death was caused by the winder’s original safety interlock � intentional employer misconduct, based in large switches (installed to prevent the part upon the employer’s response to an OSHA operation of the machine when the access investigation of the employer’s premises the year cover was open) were removed; and before the employee’s death. In its investigation, no warnings were placed on the winder OSHA cited the employer for a number of � to inform employees of the alterations to violations it categorized as “serious” ( i.e . creating a the machine. “substantial probability [of] death or physical harm”), including the employer’s failure to: As evidence that the employer knew that its alterations to the winder created a “virtual identify permit-required confined spaces; � certainty” that an employee injury would occur, the implement “lockout/ tagout” devices (i.e. � expert cited a number of times when employees safety devices used to control the voiced their concerns about the safety of the altered operation of dangerous machines); and winder and gave an illustration of one employee who train employees adequately concerning � narrowly escaped injury from the altered winder. safety issues. The New Jersey Supreme Court was persuaded that OSHA ordered the employer to correct the the employee’s hand injury was caused by intentional violations by a date that was almost 16 months employer misconduct: “The Legislature would not prior to the employee’s death. The employer never have considered the removal of the winder’s safety corrected the violations. The Court characterized devices, coupled with the employer’s alleged the employer’s response as an ongoing campaign to knowledge of the machine’s dangerous condition due “[mislead] OSHA into believing that the violations to prior accidents and employee complaints. . . to had been corrected.” The expert in the case constitute simple facts of industrial life.”