A Capehart Scatchard Blog

Door Remains Closed to Suits by Employees Against Employers for Intentional Harm

By on July 7, 2015 in Compensability with 0 Comments

In New Jersey it remains extremely difficult to bring an intentional harm claim against one’s employer.  Mere knowledge and appreciation of a risk is not intent.  That was the holding in Keller v. Township of Berkeley, A-5767-12T3 (June 22, 2015).

Mr. Keller worked as a laborer for the Township sanitation department and suffered serious injuries when he fell from a moving garbage truck after the passenger-side door suddenly opened.  He argued that there had been many complaints about the truck’s door over several years and that the Township was aware that the door latch mechanism was not functioning well.  Keller further argued that the Township violated safety standards by failing to repair the problem.

The Township, for its part, denied that it was aware of any problem with the truck and noted that an inspection by the State Police post-accident did not reveal any problem with the locking mechanism.  No OSHA violations were ever issued.

The trial judge granted summary judgment dismissing the law suit and plaintiff Keller appealed.  The trial judge did concede that there was evidence that the door latch mechanism had not been working well for a long time, and the Township was aware of this but did not fix the problem.  Nonetheless, the trial judge concluded that knowing there is a risk is not the same as intentional harm.

The Appellate Division affirmed the dismissal of the case.  It stated, “Having reviewed the record in light of these precedents, we agree with the trial court that the unfortunate accident that Keller suffered does not satisfy the substantial-certainty standard required to vault the Act’s exclusivity bar.”  Even if the conduct of the Township was grossly negligent, that is not enough to prove an intentional harm claim.  There were no OSHA violations at all, and there was no evidence of a prior similar incident where an employee was actually injured.  The court noted that there was no effort by the Township to remove the latch or perform some action that created additional danger to employees.  While the truck’s door was difficult to open and close, that in itself does not prove intentional harm.

The Appellate Division also affirmed the trial judge’s dismissal of a claim for fraudulent concealment of evidence and spoliation of evidence.  The Court said “At best, plaintiffs established sloppy record keeping by the Township.  There was simply no showing ‘[t]hat defendant intentionally withheld, altered or destroyed the evidence with purpose to disrupt the litigation’ as required by Rosenblit v. Zimmerman, 166 N.J. 391, 406-07 (2001).’”


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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