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When the New Jersey Supreme Court handed down three rulings on May 22, all on exceptions to the workers’ compensation bar to civil suits, it was plainly sending a message not only to plaintiffs’ lawyers but to an Appellate Division that seems to have lost its way. The three cases presented the same question: When can an injured employee sidestep the remedies in the Workers’ Compensation Act and choose the more lucrative route, a suit against their employers under regular tort law for egregious health and safety violations? Broadly, the court restated its longstanding position that when an employer is “substantially certain” that a dangerous condition exists and has been covered up or gone unfixed, an “intentional wrong” will be deemed to have occurred and the employer will be open to civil suit. But the court’s message was entangled with four concurrences and two dissents that accompanied the companion rulings: an unusual amount of paperwork. The majority — led by Justices James Coleman Jr. and Peter Verniero — had to contend with an Appellate Division that is friendlier to employers and with a minority wing of the court that is friendlier to workers. Two of the decisions followed remands to the Appellate Division, which had twice reached what the justices felt was the wrong decision. “I think the [New Jersey] Supreme Court is trying to tell the Appellate Division something, more than the practicing bar,” says Marvin Goldstein, head of Proskauer Rose’s Newark office, of the opinions. One fact emerges with certainty: It just got a lot more complicated for trial and appellate judges to make the right call on summary judgment motions in workers’ safety cases. NEW LIGHT ON INTENTIONAL WRONGS The majority had four main points, explicit and implicit: � Appellate judges are not properly applying the “intentional wrong” test in deciding whether an employer committed the type of act that would give a worker the right to sue in Superior Court. � There need not have been a record of prior accidents for employers to be liable for damages beyond those provided for in the Workers’ Compensation Act. That rule, stated in Crippen v. Central Jersey Concrete Pipe, A-5, is not new but the precedents involved histories of accidents and near misses. In Crippen, a worker was asked to operate a machine that could only be accessed from an unsupported ladder balanced on a 10-inch-wide plank suspended over a hopper of moving sand and gravel. The worker slipped from the ladder and drowned in the sand. No similar accident had occurred before then. � There need not have been deceptions or cover-ups by the employer before the accident. That holding, in Mull v. Zeta, A-3, also widens the door for workers; previously, a deception seemed to be a key ingredient. In Mull, a worker at a factory had her fingers amputated by a machine that started suddenly after she raised a safety guard to unblock it. The factory had a record of close calls with the machine. � Cases dealing with workers’ compensation exceptions are fact-sensitive and should be decided on the totality of the circumstances, not technical interpretations. � Injuries caused by consumer products used at work are not good evidence of an employer’s intentional wrong because the court will assume that workers, like consumers, will heed safety warnings. That holding came in the third case, Tomeo v. Thomas Whitesell Construction, A-25. The reiteration of the two-pronged “intentional wrong” test comes as a rebuke to Appellate Division Judges James Petrella and David Baime, who had twice skimmed over it in Crippen. Both times they ruled in favor of the defendant employer, dismissing the case. The test’s prongs — a finding of fact on the employer’s conduct and a determination of the legal context for those acts — must both be satisfied for an “intentional wrong” to exist, the New Jersey Supreme Court said. The conduct prong is a fact for a jury, the context prong a matter for the court. The test was first laid out in Millison v. E.I. du Pont 101 N.J. 161 (1984), and repeated last year in Laidlow v. Hariton, 170 N.J. 602. Petrella and Baime initially decided Crippen before Laidlow, so the justices asked them to take another look at the case. Whatever the justices thought Petrella and Baime would find in Laidlow, they didn’t. Instead, the pair searched the Crippen case for evidence of factual similarity to Millison and Laidlow, and a deliberate intent to injure on the part of the employer. Finding neither, they affirmed and reaffirmed. The court’s reversal in favor of the worker is therefore a loud correction to the Appellate Division’s treatment of the case. “What it says to me is that Laidlow wasn’t as clear as the [New Jersey] Supreme Court may have thought it was, which is maybe one of the reasons they came out with a trilogy,” says Matt Del Duca, who heads Dechert’s labor and employment practice in Princeton, N.J. Part of the problem for Appellate Division and trial judges is that although the three decisions seem to be an attempt to clear up post-Laidlow confusion, the justices have nonetheless asked the lower courts to balance apparently contradictory methods for making their findings. On summary judgment, a judge must now rigorously follow the two-pronged Laidlow-Millison test at the same time as deciding the motion after looking at the totality of the circumstances. The New Jersey Supreme Court repeatedly asserted that the latter approach should be dominant, but reversed Petrella and Baime for not properly following the former approach. “It’s going to be difficult for trial judges,” Del Duca says. That contradiction was illustrated in the two opinions by Verniero. In Crippen, his concurrence said that absent employer deception, the plaintiff should not have been entitled to proceed. In his majority opinion in Mull, however, Verniero wrote that even though there was no record of deception, the plaintiff should be able to proceed based on a “totality of the facts.” KEEP THE FAITH Verniero’s Crippen concurrence is especially interesting because it does not propose new lines of thinking. Instead, he writes to shore up the two-pronged test. “I urge judges to keep faith with the Act by continuing to apply with rigor both prongs of the Millison analysis,” he said. Verniero does not make it clear whether he was talking to the majority — which would suggest that some of them are wavering in their enthusiasm for Millison and Laidlow — or to the minority, comprised of Justices James Zazzali and Barry Albin, who wrote to urge that the two-prong test be modified or abandoned. Zazzali’s reasoning for abandoning the test was particularly interesting, because even though it was cloaked in sympathy for injured workers, it still rested more on a matter of logical consistency than political sympathy. The court should not have to go into the context prong after finding in the conduct prong a defendant’s intentional wrong by allowing the likelihood of death or serious injury, Zazzali said. “The plain language of that statute neither invites nor permits a trial court to consider whether a particular intentional wrong is to be immunized. Instead, it categorically exempts all intentional wrongs,” he wrote. Albin secured his place on the left of the court with his concurrence and his dissent. In both, he suggested that the court adopt a “clear and precise” rule that when an employer disables a safety device, the definition of an intentional wrong would be met. Such a rule would have made all three cases go in favor of the worker. In the event, Albin had to settle for two out of the three. The third case, Tomeo, was among the few crumbs offered to employers. In Tomeo, an employer was found not liable after a worker injured his fingers in a household snowblower his boss assigned him to use. The court found that warning labels on the machine, and its nature as a product for use by consumers, did not add up to a substantial certainty of injury in the employer’s mind. Among employment defense lawyers, the assertion that deceptions and histories of similar accidents are not per se ingredients for successful claims brought the most grumbling. The widening of the door for plaintiffs across all aspects of workers’ compensation is part of a trend by the New Jersey Supreme Court, says John Geaney, a partner at Capehart & Scatchard in Mount Laurel, N.J. “One of the key problems that I see on the horizon is the extent that this results in employers being sued more often,” says Michael Marone, chairman of the defense practice group at McElroy, Deutsch & Mulvaney in Morristown, N.J. “There is no available insurance for businesses on this type of case.” Marone defended the unsuccessful employer in Crippen. “The only thing we can really take out of these cases is that they’re going to be very fact-sensitive,” says Marone’s opponent, Robert Hicks of Javerbaum, Wurgaft, Hicks & Zarin in Springfield, N.J. “On the one hand, you want to recognize that some conduct of an employer is just not intended to be immunized, but you don’t want to open the floodgates where it’s run-of-the-mill negligence.” Whether the New Jersey Supreme Court has managed to clear up how it wants Millison and Laidlow to be applied, however, is a different story. “It’s certainly an issue that requires some refinement,” Hicks says. That, presumably, was not the reaction Verniero and Coleman were hoping for.

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