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Injured workers continue to attempt to sue their employers in civil court for bodily injury no matter how often our courts make clear that such suits are barred unless intentional harm can be proved. For every successful claimant who meets the intentional harm standard, there are thousands whose cases are dismissed on summary judgment. Such is the case of Madkiff v. Frazier-Simplex, Inc., A-1328-15T1 (App. Div. February 23, 2017).
Mr. Madkiff worked for Frazier-Simplex and was injured on January 15, 2010 while he and other workers were trying to demolish a glass furnace at the Alcan Glass plant. Jackhammers were being used to break up a dense fire brick material that lined the glass furnace. The jackhammering process created debris the size of boulders. The workers were using a mechanical hoist to remove the boulders, but it was taking more time this way. So the foreman told the workers to stop using the hoist. Plaintiff Madkiff and others complained to the foreman that “somebody is going to get hurt lifting these boulders.” The foreman said “do it or we will get somebody else to do it.”
Plaintiff began trying to manually remove the debris. He lifted a boulder and felt sudden pain in his neck and back that incapacitated him from working. He said that he knew the boulder weighed between 150 and 200 pounds but thought he could lift the boulder. When asked if he thought the foreman was intending to injure him by telling him not to use the mechanical hoist, plaintiff said “I don’t know.”
Mackiff brought a workers’ compensation claim and also sued his employer contending that the employer’s action met the exception under the exclusive remedy rule in New Jersey because it constituted intentional conduct. The trial court dismissed his suit, and plaintiff appealed. The Appellate Division explained that plaintiff’s claim would be barred unless he could prove that his employer had the subjective intent of injuring him, or engaged in intentional conduct with a substantial certainty that plaintiff would be injured.
The Court distinguished between reckless conduct and intentional conduct. “Plaintiff cites his testimony that he and some co-workers told the foreman ‘somebody is going to get hurt’ lifting boulders and that the foreman told them to do it anyway. That did not show the foreman deliberately intended to injure plaintiff.” The Court said that mere knowledge of a strong possibility of a risk does not prove substantial certainty. The Court said, “Plaintiff proffered no evidence, expert or otherwise, that it was virtually certain he would be hurt, let alone that the foreman or defendant was aware of that virtual certainty.”
For his part, plaintiff argued that the foreman’s instructions to stop using the mechanical hoist amounted to intentional removal of a safety device. But the Court did not buy this argument. “The mechanical hoist was not a ‘safety device’ on a dangerous machine. Rather, like a pulley, lever, shove, or forklift, it was a tool used by workers to accomplish their tasks.” In the end the Court said that “it was a common fact of life for laborers in the construction and demolition industry to injure their necks and backs when lifting heavy objects.” Plaintiff could not show that his injury was “more than a fact of life of industrial employment.”
Employers will continue to win suits like this for intentional harm because the New Jersey legislature fully intended to make workers’ compensation the exclusive remedy for workers who suffer injuries arising out of and in the course of employment with only truly rare exceptions.
John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group. Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at email@example.com.