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Gross Negligence Is Insufficient For Plaintiff To Prove Intentional Harm Claim

By on December 15, 2011 in Compensability with 0 Comments

Plaintiffs’ counsel continue to assault the citadel that is the exclusive remedy defense in the New Jersey Workers’ Compensation Act.  Once again a New Jersey court has held that no intentional harm was proven.

Craig Kane worked for the County of Burlington as an HVAC mechanic.  He also owned his own mechanical business.  He was asked by his immediate supervisor, Ken James, to hoist a compressor to the roof of a building by hand.  This is something plaintiff had done 20 times before but always with a crane for heavy compressors. 

Plaintiff was in excellent physical shape, able to dead lift 570 pounds and bench press 375 pounds.  Although his supervisor asked him to do this task unassisted, the County Assistant Superintendent assigned a co-worker, Donald Staiger, to work with plaintiff.

When they arrived on the job on June 26, 2009, both men saw that there was no crane to help raise the 121-pound compressor to the roof.  They decided that plaintiff would stand on the roof of the Library to pull the compressor upward, while Staiger would guide the compressor from below.  While hoisting the compressor, the rope slid from plaintiff’s hands, causing him to fall backwards and strike his head. 

Plaintiff obtained workers’ compensation benefits but also brought suit against the County for intentional harm.  He alleged that his supervisor had a grudge against him because plaintiff had once reported him to management for using racial slurs on the job.  That report had led to James’ suspension without pay for 12 days.  For his part, James admitted the grudge existed and asserted that he had been innocent.

Plaintiff’s expert gave an opinion that hoisting a heavy compressor by hand to the roof was extremely dangerous.  He said that using a crane would have removed the danger.  He further testified that there was a substantial certainty of harm posed by this operation. 

The trial judge ruled in favor of the County and granted the County’s motion for summary judgment.  The Appellate Division reviewed case law on intentional harm claims and noted that it is not sufficient simply to appreciate that there is a risk of harm.  The court said, “In evaluating James’s order that plaintiff and Staiger haul the compressor to the roof, we must avoid the distorting effect of hindsight.  The issue is what James actually knew before the day in question, not what he should have known.”

Regarding the grudge between plaintiff and his supervisor, the court held that any causal link was broken by the fact that another man, Staiger, ultimately assisted the plaintiff in raising the compressor.  The court held, “Notably, nothing in the record demonstrates that James or Watkins subjected plaintiff to a risk of injury knowing that injury was a virtual certainty.  At most, their conduct was an instance of gross negligence, or a wanton disregard for the safety of another, but such conduct is insufficient to overcome the workers’ compensation bar.” 

The case emphasizes yet again how difficult it is in New Jersey to successfully maintain a suit against one’s employer for intentional harm.  The case may be found at Kane v. County of Burlington, A-2342-10T3 (App. Div. December 9, 2011). For further information, readers may contact Betsy Ramos, Esq. of Capehart Scatchard, who represented the County of Burlington.


About the Author

About the Author:

John H. Geaney, a shareholder and co-chair of Capehart Scatchard's Workers' Compensation department, began an email newsletter entitled Currents in Workers’ Compensation, ADA and FMLA in 2001 in order to keep clients and readers informed on leading developments in these three areas of law. Since that time he has written over 500 newsletter updates.

Mr. Geaney is the author of Geaney’s New Jersey Workers’ Compensation Manual for Practitioners, Adjusters & Employers. The manual is distributed by the New Jersey Institute for Continuing Legal Education (NJICLE). He also authored an ADA and FMLA manual as distributed by NJICLE. If you are interested in purchasing the manual, please contact NJICLE at 732-214-8500 or visit their website at www.njicle.com.

Mr. Geaney represents employers in the defense of workers’ compensation, ADA and FMLA matters. He is a Fellow of the College of Workers’ Compensation Lawyers of the American Bar Association and is certified by the Supreme Court of New Jersey as a workers’ compensation law attorney. He is one of two firm representatives to the National Workers’ Compensation Defense Network. He has served on the Executive Committee of Capehart Scatchard for over ten (10) years.

A graduate of Holy Cross College summa cum laude, Mr. Geaney obtained his law degree from Boston College Law School. He has been named a “Super Lawyer” by his peers and Law and Politics. He serves as Vice President of the Friends of MEND, the fundraising arm of a local charitable organization devoted to promoting affordable housing.

Capehart Scatchard is a full service law firm with offices in Mt. Laurel and Trenton, New Jersey. The firm represents employers and businesses in a wide variety of areas, including workers’ compensation, civil litigation, labor, environmental, business, estates and governmental affairs.


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