Do “willful” and “intentional” mean the same thing? When it comes to workers’ comp, the answer is no, says the Supreme Court of New Jersey — regardless of what your dictionary might say.
Kenneth Van Dunk was part of a crew that was struggling with a trench. It had already been affected by heavy rain, and it had to be redone. Plus, more rain was expected, so the crew was in a hurry.
When fabric being laid in the trench got tangled, Van Dunk volunteered to climb in and straighten it out. The project superintendent told him not to because it was too risky.
But the problem persisted, and the project manager decided to let him.
Moments after he’d climbed in, a trench wall caved in, burying Van Dunk to his chest. He sustained multiple injuries.
When OSHA investigated, the superintendent admitted he knew he’d broken the rules by allowing Van Dunk to go in. OSHA fined the company for a willful violation, and the company didn’t fight it.
Later, Van Dunk, who’d filed for and gotten comp, sued the employer and others, claiming the “willful” nature of the events superseded the exclusive-remedy provision of workers’ comp.
A trial court tossed the case, but an appeals court reversed. Now, the state Supreme Court has tossed it again.
The high court said the fact that a violation is willful is a consideration, but that the other circumstances of the case didn’t rise to the level of intentional tort that had been established in previous decisions. Those decisions spelled out the necessary conduct and context for such a determination.
“A probability or knowledge that injury or death could result is not sufficient to demonstrate an intentional wrong,” said the court. “Instead, an intentional wrong must amount to a virtual certainty that bodily injury or death will result.”
In other words, it wasn’t as if the supervisor tossed a bomb at the worker.
The superintendent made a pressured and terrible decision, said the court, but not one that was substantially certain to lead to injury or death.
As for context, said the court, the circumstances of the injury weren’t so far beyond anything the legislature might have imagined in a typical work situation that they warranted something more than workers’ comp.
The case might have risen to the level of gross negligence, said the court, but even that wasn’t enough to overcome exclusive remedy.
Cite: Kenneth Van Dunk, Sr., et al. v. Reckson Associates Realty Corporation, et al
