It can generally be said that before you can recover money for an injury someone else needs to be found at fault for causing the injury. However, when you suffer an injury at work, the New Jersey Workers’ Compensation Act N.J.S.A. 34:15-36, requires employers to “insure” workers, regardless of fault, by providing eligible employees with authorized medical treatment, temporary disability payments, and permanent partial disability payments for job-related injuries or illnesses. In exchange for these non-fault related benefits, employees are subject to a workers compensation bar preventing them from being able to sue their employer in court for economic loss and “pain and suffering” damages caused by work related injuries. Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 161 (1985). However, if an employer intentionally causes an employee’s injury, then the employee may be able to their employer in court for all common law personal injury damages. See N.J.S.A. 34:15-8. (Finding that “a person shall not be liable . . . except for intentional wrong.”)
In Laidlow v. Hariton Machinery Co. Inc., 170 N.J. 602 (2002), the New Jersey Supreme Court explained that certain circumstances can exist which would result in an injury being deemed intentionally caused even though the employer did not directly intend to harm the employee. Id. Laidlow laid down a two-pronged test where the employer is held liable as if it intended the injury to occur. Id. at 617. First, based on the circumstances there must be a substantial certainty that injury will occur, and second, the circumstances resulting in this injury cannot be standard industry practice. Id.
The burden to demonstrate a “Laidlow claim” can be a difficult one to achieve given the need of the employee to show that the circumstances surrounding the injury were beyond the everyday risks of the job, or that performing the job in the manner required by the employer would almost certainly result in injury. For example, in Van Dunk v. Reckson Associates Realty Corp., et al., 2012 N.J. LEXIS 678 (decided June 26, 2012) and recently in Madkiff v. Frazier-Simplex, Inc., No. A-1328-15T1, 2017 N.J. Super. Unpub. LEXIS 419, at *1 (App. Div., decided Feb. 23, 2017) the courts found that even though the respective supervisors of these plaintiffs knowingly allowed the employees to place themselves in a potentially harmful situation, the workers compensation bar could not be overcome because it was not proven that it was virtually certain an injury would occur to the plaintiffs under the circumstances presented.