Most of the time, New Jersey workers compensation law shields employers from personal injury lawsuits. The idea is the workers compensation insurance takes care of most of the same issues that a personal injury suit would.
Indeed, prior to the establishment of workers compensation law in the state, employees had no choice but to launch personal injury suits if they were injured on the job. Workers compensation was supposed to serve as a trade-off. It’s cheaper for employers to carry workers compensation insurance than it is for them to go to court every time an employee gets injured, and injured employees are more likely to receive compensation, if in lesser amounts than they would have received with a successful personal injury suit.
But what if an employer is grossly negligent, to the point of engaging in heinous behaviour? What if that behavior then leads to the employee’s death or injury?
The Intentional Wrong Exception
Section 34:15-8 of the New Jersey Workers Compensation Law states:
“If an injury or death is compensable under this article, a person shall not be liable to anyone at common law or otherwise on account of such injury or death for any act or omission occurring while such person was in the same employ as the person injured or killed, except for intentional wrong.”
While there are no doubt many employers who engage in intentional wrongs, the precedent from past cases gives employers a lot of leeway to commit wrongs without exposing themselves to liability.
What Plaintiffs Must Prove
It is very difficult to hold an employer accountable under the intentional wrong exception. In case after case employers have been protected even when they have knowingly exposed employees to hazards and lied about it.
In 1985 the Supreme Court of New Jersey heard Millison v. E.I. du Pont de Nemours & Co.. Citing a wealth of past cases dating back to 1968, the Supreme Court of New Jersey laid out a series of facts plaintiffs must prove before they can bring a personal injury suit against an employer.
- That the employer knew their conduct was “substantially certain” to result in the death or injury of the employee.
- The injury and the circumstances leading to the injury were “more than a fact of life of industrial employment.”
- The employer’s actions were “plainly beyond anything the Legislature intended the Worker’s Compensation Act to immunize.
None of these are easy things to prove.
The system is aware employers engage in depraved conduct regularly, but feel that the compromise of Workers Compensation itself was meant to address this fact.
Employers, of course, continue to fight hard to avoid being held accountable even under this liberal standard.
Should you try to sue?
For most employees, and their families, pursuing a personal injury or wrongful death claim will be a waste of energy. That energy will be better spent on pursuing workers compensation benefits, and navigating the various legal challenges that employers will place in their paths to keep them from receiving payments.
Still, you should always bring the facts of a case to an attorney before making any determination. A lawyer can look at the facts of your case and make a strategic determination on the courses of action most likely to make the plaintiff whole once more.