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Exclusive remedy bars safety device suit
An employer's failure to install a safety device before a worker's accident is not the type of workplace conduct that lifts the statutory bar of negligence actions against the employer.
Case name: Calavano v. Federal Plastics Corp., No. A-0353-09T1 (N.J. Super. Ct. App. Div. 08/18/10, unpublished). Ruling: In an unpublished decision, the New Jersey Superior Court, Appellate Division held that a worker's negligence suit was barred by the exclusive remedy provision of the workers' compensation law.
Summary: A worker was cleaning a vertical blender at work. He inserted his hand into the machine and heard it "click" on, causing the lower half of his left arm to be severed. A supervisor was the only other person in the room when the accident occurred. The supervisor turned on the machine before ascertaining whether the worker had completed his task. The machine had no safety device prior to the accident, but devices were installed within two days of the incident. An OSHA investigator cited the employer for a "serious" violation. The worker sued the employer alleging intentional wrongdoing. The New Jersey Superior Court, Appellate Division held that the worker's suit was barred by the workers' compensation law. The court noted that there were three prior amputation accidents at the employer's workplace over a period of 26 years. The worker and supervisor acknowledged that they knew of the danger posed by inserting a hand into the machine without turning off the power. No evidence showed that anyone ever suggested to the worker that he should skip any of the safety steps. The court noted that a safety device should have been installed prior to the injury, and evidence showed that the injury was caused by the supervisor who ignored safety procedures. A civil action against an employer for a workplace injury is allowed if the injury is the result of an intentional wrong. Courts consider the employer's conduct and the context of the event. Here, no safety device was disengaged, and OSHA was not misled. Editor's note: This case and Van Dunk cover the intentional wrong exception in New Jersey law. Courts consider the totality of the circumstances in deciding whether a worker can sue his employer for workplace injuries. In this case, no safety device was removed and OSHA was not misled, so the employee could not sue his employer. In Van Dunk, the superintendent's decision to ask the worker to enter the trench was "knowing" and "willful" so the worker could sue his employer. Read more at the WorkersComp Forum homepage. November 11, 2010 Copyright 2010© LRP Publications |
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