In Cannon v. Bravo Pack, Inc., the Appellate Division of the Superior Court once again confirmed the strength of the employer immunity defense to a third-party claim filed by an injured worker (decided October 31, 2023). The injured worker was limited to receiving workers’ compensation benefits, but his claim for civil damages against the employer was dismissed.
The employer manufactures shipping supplies including bubble wrap and bubble mailer envelopes. The plaintiff began work on March 18, 2019. When he arrived for work, the plant manager directed another employee, Mr. Gongora, to train the plaintiff. Mr. Gongora had previously trained 5 or 6 employees, but he had received no formal instructions on how to train a fellow employee and had not been given any operating manuals for the machines that he worked on.
On the date of injury, Gongora was working on a Kraft bubble mailer machine which the employer purchased approximately 3 months earlier. Inside the machine was a pneumatically powered blade that performed the cutting process. The blade was covered by a clear plastic safety guard held in place by 4 screws.
Based upon the employee’s experiences operating the machine, the employer was aware that the machine routinely jammed approximately 10-15 times per day. The employees were instructed to stop the machine, lift the guard, and use a piece of wood to clear the jammed material. However, the employer acknowledged that Gongora had previously removed the plastic guard covering the pneumatic blade to clear the jams more quickly, but the employer was unaware that the guard had been removed. Gongora had been instructed not to remove the guard, but the employer was aware that Gongora did not always follow his instructions.
The plaintiff testified that Gongora provided him with minimal instructions on his first day of employment. He advised that Gongora did not teach him how to turn the machine on or off or where he should stand. He was not given any instructions or safety manual regarding the use of the machine.
On the morning of March 18, the plaintiff’s first day of work, the machine jammed several times. Gongora cleared the jam each time. At midday, the machine jammed once again. Gongora was not with the plaintiff at the time of the jam. Rather, Gongora had left the plaintiff and told him “Go ahead, you got it. You can do it.” The plaintiff then attempted to remove the jam and the blade caught the plaintiff’s left hand partially amputating 3 fingers. The plaintiff testified that before the accident he was not even aware that the machine had blades and the discharge area where the injury took place and there was no warning sign on the machine.
OSHA came to the scene and cited the employer for several safety violations including failure to train employees to ensure they perform maintenance on the machine properly.
The plaintiff sued his employer alleging that the accident was due to the employer’s intentional conduct and therefore his remedy should not be limited to benefits under the Workers’ Compensation Act. Despite the fact that the plaintiff presented an expert witness who testified to the “high risk level” of an imminent injury, both the Workers’ Compensation Judge and the Appellate Division dismissed the plaintiff’s complaint.
In its decision, the Superior Court thoroughly reviewed all pertinent cases including Supreme Court decisions with respect to whether the employer’s conduct amounts to “an intentional wrong” such that the injured worker is not limited to the workers’ compensation benefits and the exclusivity defense is unavailable to the employer. The Court concluded that to demonstrate that the employer committed an intentional wrong, they must demonstrate either:
That the employer had an objective desire to injure, or
That based on all of the facts and circumstances of the case the employer knew an injury was substantially certain to result.
The court made it clear that the substantial certainty requirement is an extraordinarily high bar. The court noted that even if the injuries were caused by gross negligence or an abysmal lack of concern for the safety of employees that is insufficient to satisfy the intentional wrong exception. Additionally, the court noted that even if the employer was grossly negligent, it did rise to the standard of an intentional wrong or substantial certainty of injury.
Several facts worked in favor of the employer, primarily that the employer was unaware that the guard had been removed and that no one else had been previously injured on this machine. Additionally, the OSHA citations were issued after the accident. Had any of these factors been different, then the plaintiff would have had a stronger case of “substantial certainty” of an injury.
Nevertheless, the strongly worded per curiam decision emphasizes that New Jersey has stepped back from a liberal expansion of negligence lawsuits by employees against employers. The plaintiff also sued the manufacturer of the machine, but the outcome of that case is not described.
Comment: This decision once again underscores the strength of the exclusive remedy defense. As the Court noted, neither gross negligence nor an abysmal lack of concern for the safety of employees is sufficient to satisfy the intentional wrong exception.