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Construction worker allowed to bring suit for OSHA violation
New Jersey workers' compensation laws do not preclude a worker from suing his employer when the injury occurred during a "willful violation" of OSHA requirements.
Case name: Van Dunk v. Reckson Associates Realty Corp., No. A-3548-08T2 (N.J. Super. Ct. App. Div. 08/30/10). Ruling: The New Jersey Superior Court, Appellate Division ruled that the workers' compensation laws did not preclude a lawsuit brought by an injured worker.
Summary: A construction worker was working on a retention pond. Record rainfalls impeded the progress of the project. A dewatering sump had to be relocated for the project to go forward. To relocate the sump, a trench had to be constructed and fabric had to be laid on the trench. The worker volunteered to enter the trench to fix the fabric. The superintendent told him not to enter the trench. After workers were unsuccessful in laying the fabric, the superintendent instructed the worker to enter the trench to correct the problem. After the worker entered the trench, it caved in and buried the worker to his chest. The New Jersey Superior Court, Appellate Division ruled that the worker could sue the employer. The court remanded the case for further proceedings. The court noted that the employer's instruction for the worker to enter the trench was in violation of OSHA's requirements because the trench had no safety devices. Additionally, the employer knew that allowing its employees to enter a trench without safety devices could lead to injuries. The superintendent was aware of an accumulation of water at the bottom of the trench, cracking on the bank of the trench, and the unstable soil that could lead to the trench falling. The court mentioned that the worker's safety was disregarded to increase productivity and profits for the employer. Editor's note: Calavano and this case 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 Calavano, no safety device was removed and OSHA was not misled, so the employee could not sue his employer. In this case, 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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