Pursuant NJSA 34:15-8, if an injury or death is compensable under the New Jersey Workers’ Compensation Act, a person shall not be liable to anyone . . . on account of such injury or death for any act or omission occurring while such person was in the same employer as the person injured or killed, except for intentional wrong. This is known as the immunity exception. The immunity exception remains a high burden to meet and on August 7, 2020, the Appellate Division’s decision continues to raise that bar.
In Hocutt v. Minda, Hocutt was injured in a forklift accident while working at Minda’s warehouse. Hocutt sued Minda claiming the company was negligent in directing him to ride as a passenger on a forklift and violating federal workplace safety regulations. The trial court dismissed the complaint, ruling that Hocutt’s exclusive remedy was under workers’ compensation law and the Appellate Division affirmed.
Minda operates a warehouse that stores goods for the dry-cleaning industry. Forklifts are used at the warehouse to move pallets of supplies. It was a common practice at the warehouse for a worker to rise on the forklift, standing on either the front or back of the forklift while it was moving. This practice violates federal workplace safety regulations, however, this practice is used to hasten the pace with which pallets are loaded and unloaded and thus to enhance productivity and profit.
Hocutt was teamed up with Will. Will was assigned as the forklift operator. Prior to being assigned, Will had indicated that he had a certification to drive forklifts, but it was never presented to Minda and Minda “took Will’s word for it.” On the date of the injury, Hocutt was instructed by a supervisor to position himself and stand on the back of the forklift that was being operated by Will. Will inadvertently backed the forklift into an I-Beam and Hocutt’s leg was seriously injured.
Following the injury, the US Department of Labor Occupational Safety and Health Administration (OSHA) issued three citations to Minda. The first citation was for allowing an employee to operate a forklift without proper training and evaluation; the second was for allowing an employee to rise on the forklift, and the third was for failing to report the hospitalization of an employee within 24-hours.
The standard for determining whether the immunity exception is met is a two-prong test. To fall under the intentional wrong exception, a plaintiff must first establish the employer knew that its actions were substantially certain to result in injury or death to the employee. If satisfied, the plaintiff must also show that the resulting injury and the circumstances of its infliction were more than a fact of life of industrial employment, and beyond anything the legislature intended the workers' compensation act to immunize.
In coming to the conclusion that Hocutt did not meet the two-prong test, the court further discussed several notable cases to help clarify what acts and/or omissions are considered egregious enough to rise to the level of intentional negligence.
In Millison v. EI Du Pont De Nemours & CO., the court found that the test was met where the employer knowingly exposed its employees to asbestos.
In Laidlow v. Hariton Machinery Co., the company removed a safety mechanism from a piece of equipment but replaced it prior to inspections. In that case, the court ultimately determined that the conduct involving the intentional, and deceptively timed, engaging and disengaging of safety equipment satisfied the test for piercing immunity.
In another case, Mull v. Zeta Consumer Products, the court found that the act did rise to the level of intentional wrong when the employer was aware of prior injuries and ignored citations for safety violations. In that case, OSHA had cited the defendant for several safety violations; the defendant had removed several safety devices from a machine; another employee had sustained an injury operating the same equipment, and the defendant was aware employees repeatedly complained about safety concerns.
The court in Crippen v. Central Jersey Concrete Pipe, Co. also found that where the employer failed to rectify numerous OSHA violations prior to the plaintiff’s fatal accident, that it constituted knowledge of the employer that the violations were certain to result in injury or death.
In Hocutt, the court notes that there was no deception, no prior accidents, and no prior complaints. The court furthers that the case law is clear that merely violating an OSHA regulation is not enough to rise to the level of intentional wrong and that even if there are repetitive violations, that the immunity exception is for the more 'egregious' situations.