Appellate Division Finds Multiple Violations of OSHA Safety Standards Insufficient To Prove Intentional Wrong Under New Jersey Worker’s Compensation Act
The New Jersey Workers Compensation Act’s Exclusive Remedy Doctrine, N.J.S.A. 34:15-8, was again tested in the consolidated wrongful death actions of Estate of Oscar Portillo v. Bednar Landscaping Services, Inc. and Estate of Selvin Zelaya v. Bednar Landscaping Services, A-3110-19, decided July 8, 2021. Both cases arose from the same incident.
Bednar Landscaping was hired to install a French drain by the owners of a private residence. The project was designed by Keith Bednar, who founded the firm and is the company’s president, (both referred to hereinafter as “defendants.) During the course of installing the drain a nine-foot-deep trench collapsed, killing the decedents, both employees of the defendants.
An investigation by OSHA following the accident identified multiple violations of safety standards. In addition, OSHA issues a willful violation citation because the workers were exposed to crushing injuries in the trench which was not adequately sloped or protected by shields or shoring. This citation is based on 29 C.F.R. Sec1926.652(a)(1) which requires an employer to protect workers from a trench collapse by using sloping, shoring or trench boxes in a trench deeper than five feet.
In addition to the OSHA violations, defendants were charged by the Morris County Prosecutor’s office. The corporate principals were diverted into pre-trial intervention; the landscaping company pled guilty under an accusation charging one count of fourth-degree causing or risking widespread injury or damage; at its request a civil reservation was entered. The corporate entity was placed on probation and ordered to pay restitution to the decedent’s families. Fines were paid by Bednar Landscaping pursuant to its settlement agreement with OSHA.
Decedent’s estates filed wrongful death actions against defendants. Defendants moved for summary judgement based on the exclusive remedy doctrine since decedent’s beneficiaries were collecting workers compensation benefits and that defendants had not committed an “intentional wrong.” In what the Appellate Division termed “an extensive, well-reasoned written decision” the motion judge granted summary judgement, finding that “…a jury simply could not conclude that defendants were substantially certain that their working conditions would cause great bodily harm or injury to one of their employees, which is a prerequisite to avoiding the exclusivity bar…”
In affirming the granting of summary judgement the court reviewed the long line of cases upholding the exclusive remedy doctrine, starting with Millison v. E.I. DuPont, 101 N.J. 161, (1985,) which created the “intentional wrong” framework and implemented a “substantial certainty” test. To satisfy this test, our Supreme Court stated “a plaintiff must first establish the employer knew that its actions were substantially certain to result in injury or death to the employee.” If that prong is met, then “the plaintiff must further show that the resulting injury and the circumstances of its infliction were more than a fact of life of industrial employment and plainly beyond anything the Legislature intended the WCA to immunize.”
The Appellate Division further cited cases subsequent to Millison illustrating this concept, including one similar to the instant matter, Van Dunk v. Reckson Assoc. Realty Corp., 210 N.J. 449, (2012,) citing N.J.S.A. 15:34-8. In Van Dunk, an employee was injured when a twenty-foot-deep trench collapsed on him. An OSHA investigation revealed that the supervisor was aware of safety standards and failed to follow them, resulting in a “willful” violation of the safety standards. Despite this our Supreme Court refused to find this to be an intentional wrong or to have created a substantial certainty an injury would occur. Such was the situation with the present case according to the Appellate Division, which made a clear distinction between the situation here and cases in which plaintiffs have prevailed. In those matters in which plaintiffs were successful there was clear evidence of employer knowledge of safety standards, past citations by OSHA, deliberate deception of OSHA or employees and complaints of dangerous conditions by employees.
This case illustrates the considerable protection from employee injury lawsuits afforded employers under the exclusive remedy doctrine. However, employers should not view this protection with a cavalier attitude, secure in the knowledge this law is all they need to avoid such lawsuits; after all, laws, and factual situations, do change. This protection is not a substitute for ensuring that all safety standards are adhered to at all times; that proper and repeated safety training be made a requirement; to ensure proper supervision of all activities and all job sites by company officials well-trained in safety standards and procedures, etc. Safety first!
If you have any additional questions, comments or concerns about this topic or any other issues related to your worker’s compensation needs, please feel free to contact the worker’s compensation group here at Brown & Connery, LLP via email or call 856-854-8900.
By: Alfred P. Vitarelli, Associate at Brown & Connery, LLP