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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.

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he New Jersey Workers’ Compensation Act (the “Act”) generally requires an employee who suffers a workplace injury to apply for workers’ compensation benefits as the exclusive remedy against the employer for that injury. However, the Act does permit an employee to pursue alternative or additional remedies when a workplace injury is caused by “intentional” employer misconduct - that is when:

• the employer knows that its actions

substantially are certain to cause injury

• r death to an employee; or
• the injury and the circumstances of its

infliction are more than a fact of life of industrial employment, and plainly beyond the intention of what the Legislature intended to immunize under the Act. A finding of an intentional act is critical to the determination of damages. If it is determined that an employee’s workplace injury is caused by intentional employer misconduct, the cost to the employer can be substantial. Such costs may include, without limitation, the cost of defending an employee lawsuit in a court of law, and, if the employee prevails, the financial burden of satisfying a substantial damages award that may include compensatory and punitive damages. The finding of whether an employee’s workplace injury is caused by intentional employer misconduct will be based on “all the facts and circumstances.” However, in a number of recent cases, all decided on May 22, 2003, the Supreme Court of New Jersey has recently affirmed the importance of three factors in making the

• determination. These factors are whether: (a) the

machine causing the workplace injury is an industrial machine or a consumer product; (b) the employee’s workplace injury is attributable to the employer’s alteration of the machine’s safety devices; and (c) the employee’s workplace injury is related to the employer’s deception of OSHA inspectors about the actual condition and

• peration of the machine.

Industrial Machine or Consumer Product:

In Tomeo v. Thomas Whitesell Construction Company, 2003 N.J. LEXIS 560, the employee worked as an installer of sprinkler systems in commercial buildings and assisted with snow

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A finding of an intentional act is critical to the determination of damages . . . the cost to the employer can be substantial.

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removal by operating a snow blower on the employer’s premises. The snow blower had a system

• f internal propellers to drive the snow through a
• chute. On each side of the snow blower’s handlebars

were operating levers - a gearshift lever and a safety lever that activated the propellers when squeezed and deactivated the propellers when released. The safety lever was “taped in[to] the operational position” with electrical tape. On one occasion, the employee was instructed to assist with snow removal on the employer’s premises using the snow blower. Three times, the snow blower became clogged with wet snow. Each time, the employee used his hand to push snow down into the chute to be ejected by the propellers. The third time, the employee suffered injury when he placed his hand into the chute and the propellers caught his hand. The employee argued that the employer’s intentional misconduct, evidenced by its use of tape to secure the safety lever in the operational position, caused the employee’s injuries. However, the Court rejected this argument based on its determination that the snow blower was not an industrial machine (i.e. “a part of [the] equipment

• r machinery used to produce or install sprinklers

in commercial buildings”), but rather a consumer product, subject to commonly understood standards of consumer care. The New Jersey Supreme Court observed that the employee, as a “consumer” of the snow blower, did not observe commonly understood standards of care when he inserted his hand into the machine. The employee ignored prominent warning labels containing the word “DANGER” and a pictorial description of the dangers of a hand near a rotating propeller: [The employee] knew or should have known that propellers were operating before inserting his hand into the chute

• [the employee] started the engine,

placed the gear level in forward motion,

• bserved snow being ejected through

the chute. . . . In the circumstances, it was not the taping but the insertion of the hand into the chute with the knowledge that the propellers were

• perating that created virtual certainty

[that an injury would occur]. These facts persuaded the Court that the employee’s lack of care caused his injuries and not the employer’s alleged misconduct. The Court reasoned that if “an employee is injured while using a consumer product, as opposed to industrial machinery or other [production] equipment used in the workplace, and the characteristics of the product are known to the ordinary consumer or user, and the harm was caused by an unsafe aspect

• f the product. . . that would be recognized by the
• rdinary person who uses or consumes the

product,” then the employee’s injury is caused by the employee’s own negligence, not by any intentional misconduct of the employer.

An Employer’s Alteration of Safety Devices:

In Mull v. Zeta Consumer Products et al., 2003 N.J. LEXIS 561, the employee worked as a line-operator in charge of a machine called a “winder,” which wound plastic bags onto spools for packaging. When the winder jammed, the employee was required to clear the problem by turning off the machine, lifting its fiberglass guard, and removing the jammed material. On one occasion when the

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winder jammed, the employee turned off the machine to clear the jam but the machine suddenly began to operate while the employee’s hand was inside, badly injuring the employee. In this case, the Court decided that the employee’s injury was caused by intentional employer misconduct, based in large part upon an expert’s report that concluded that the winder had been altered by the employer in a manner that enhanced productivity, but created substantial risk

• f employee injury. Specifically, the expert’s report

concluded, among other things, that:

• the winder’s original steel-hinged cover

was replaced with a plexiglass cover;

• the winder’s original safety interlock

switches (installed to prevent the

• peration of the machine when the access

cover was open) were removed; and

• no warnings were placed on the winder

to inform employees of the alterations to the machine. As evidence that the employer knew that its alterations to the winder created a “virtual certainty” that an employee injury would occur, the expert cited a number of times when employees voiced their concerns about the safety of the altered winder and gave an illustration of one employee who narrowly escaped injury from the altered winder. The New Jersey Supreme Court was persuaded that the employee’s hand injury was caused by intentional employer misconduct: “The Legislature would not have considered the removal of the winder’s safety devices, coupled with the employer’s alleged knowledge of the machine’s dangerous condition due to prior accidents and employee complaints. . . to constitute simple facts of industrial life.”

The Employer’s Deception of OSHA Inspectors:

In Crippen v. Central Jersey Concrete Pipe Company, 2003 N.J. LEXIS 562, the employee worked as a “material man” who was in charge of controlling the movement of sand and gravel onto large loading hoppers that were located in an elevated shed. To activate the lever that controlled the movement of sand and gravel, the employee was required to walk

• n a two-inch-by-ten-inch wooden plank and stand
• n a six-foot high, unsecured ladder resting on the
• plank. The employee fell into one of the large sand

hoppers and suffocated to death. The New Jersey Supreme Court spoke again. It held that the employee’s death was caused by intentional employer misconduct, based in large part upon the employer’s response to an OSHA investigation of the employer’s premises the year before the employee’s death. In its investigation, OSHA cited the employer for a number of violations it categorized as “serious” (i.e. creating a “substantial probability [of] death or physical harm”), including the employer’s failure to:

• identify permit-required confined spaces;
• implement “lockout/

tagout” devices (i.e. safety devices used to control the

• peration of dangerous machines); and
• train employees adequately concerning

safety issues. OSHA ordered the employer to correct the violations by a date that was almost 16 months prior to the employee’s death. The employer never corrected the violations. The Court characterized the employer’s response as an ongoing campaign to “[mislead] OSHA into believing that the violations had been corrected.” The expert in the case

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concluded that the employer’s failure to correct the violations in a timely manner created a substantial certainty that an injury or death would result: “[The employee] died because he was allowed to enter a permit-confined space without a permit and without having the proper lockout-tagout so that the mixer

• perator would not. . . cause a discharge of the

hopper contents.” This evidence (in addition to other factors not relevant here) persuaded the Court to hold that the employee’s death was caused by intentional employer misconduct: “[the employer] evidenced an awareness of the virtual certainty of injury from its failure to correct the safety hazards. . . .” These recent cases highlight a simple truth of workplace safety: an employer seeking to avoid a finding that it has “intentionally” injured an employee in the workplace must follow common- sense safety policies. For example, employers should: provide adequate training to employees who work with potentially dangerous machines; not tamper or alter dangerous machines (especially the safety features of those machines) for any reason; and respond effectively and on a timely basis to inspections from OSHA and to employee questions and concerns about workplace safety. If you would like to discuss this or other workplace issues, contact Martha L. Lester, Esq., Chair of Employment Law Practice Group, or Mark E. Seidel, member of the Employment Law Practice Group at (973) 597-2500.

New Edition Coming Soon

The 2003-2004 edition of “The Practical Guide to Federal and New Jersey Employment Law: The Employers’ Resource” includes:

• Federal Law Updates
• Step-by-Step Diagnostic Charts to help you

comply with state and Federal mandates

• Easy-to-Follow- Index
• New In-Depth Chapters

This Guide, published in connection with the New Jersey Business and Industry Association, is the resource for New Jersey employers seeking to comply with New Jersey laws, regulations and procedures in the employment- related area. It provides management with information concerning existing laws, emerging trends, most frequently asked questions, and practical tips on managing the workforce and workplace. You may also wish to obtain a copy of our currently published edition, “A Practical Guide to New Jersey Employment Law: The Employer’s Resource.” To obtain a copy, please contact Karen Cerreto at 973.422.6466

• r email kcerreto@ lowenstein.com.