Employee Cannot Sue Fellow Employee Even If the Conduct Causing Injury Bordered on Criminal Negligence

What if the conduct of an employee during the course of employment is found to be so reckless as to be potentially criminal? Does that permit an injured co-employee to sue his or her fellow employee in civil court for intentional harm?  That was the issue addressed in Morales v. Christopher S. Schneider, A-0862-12T4 (App. Div. December 16, 2013).

Luciano Morales was injured on December 31, 2009 in the course of his employment.  He was a passenger in a vehicle driven by Christopher Schneider, who was driving a construction truck southbound on Rivervale Road in River Vale, N.J.  It was snowing at the time, and both men were on their way to the company’s place of business to meet other contractors in order to perform snowplowing services for clients.

While driving the truck, Schneider crossed the double yellow line and entered the northbound lane on Rivervale Road, which was a two lane road.  He drove for more than a full block in the northbound lane.  A truck travelling lawfully in the southbound lane began to make a left turn onto a local side street. Schneider veered left to avoid that vehicle, lost control of his truck, left the roadway and hit a utility pole and tree.  Morales was seriously injured in the accident and received workers’ compensation benefits.

Schneider was given motor vehicle summonses for reckless driving, failing to keep right, improper passing, and he was also charged by the Bergen County Prosecutor with fourth-degree assault by auto for “causing serious bodily injury to . . . Morales by recklessly driving.”  Schneider was admitted into the pre-trial intervention program and pled guilty to the motor vehicle summons for reckless driving.

Morales brought a civil suit against Schneider, who contended that the suit should be barred by the exclusive remedy provision in the New Jersey Workers’ Compensation Act. Morales countered that a co-employee should not be protected where the conduct is “outrageous and egregious.”

The trial judge dismissed Morales’s law suit, and the Appellate Division affirmed.  It relied on an important decision by the New Jersey Supreme Court in 2012 entitled Van Dunk v. Reckson Associates Realty Corp., 210 N.J. 449 (2012).  The court said, “Most recently, in Van Dunk, the Court held that the Act’s exclusivity bar applied where the workplace accident produced an OSHA violation for a ‘willful’ violation of OSHA safety rules.”

Thus, in addition to violations of safety regulations or failure to follow good safety practice, an intentional wrong must be accompanied by something more, typically deception, affirmative acts that defeat safety devices, or a willful failure to remedy past violations.

The court concluded, “While it might be said that Schneider ignored various safety precautions and statutory provisions, and in doing so created a greater risk of injury to plaintiff — conduct that clearly cannot be condoned — we are convinced it does not amount to an intentional wrong that allows plaintiff to avoid the workers’ compensation bar.”

The case shows that the high standard in New Jersey for screening intentional harm law suits applies to both suits against employers and co-employees, even where the co-employee acts in a fashion that could subject him to criminal negligence charges.