New Jersey Court Rejects Intentional Harm Claim For Worker Injured Using Table Saw


The work conditions complained of were a fact of life of industrial employment and therefore not actionable         

Plaintiffs' counsel continue to try overcome the exclusive remedy provision of the Workers' Compensation Act, largely unsuccessfully.  The case of  Menkevich v. Delta Tools, A-1950-10T2, shows just how hard it is to prove an intentional harm case in New Jersey.

Bernard Menkevich worked as a carpenter for East Coast Displays, which was owned by Thomas Sellers.  Defendant Hill Phoenix Refrigeration acquired East Coast in April 2008 and retained Sellers as production manager.  Hill Phoenix mandated the use of protective guards on all saws but did not install the guards on the machinery.

On June 4, 2008 Menkevich, who had been a carpenter for 30 years, was using a table saw to make plunge cuts in six pieces of lumber.  A saw operator makes such cuts by holding the lumber at an angle and then lowering it onto the blade of the saw.  When he attempted to make the final cut, the board got caught in the blade and kicked back towards plaintiff, pulling his hand toward the blade and causing severe injuries to several fingers.  Menkevich sued his employer and argued it was liable for an intentional harm.

Plaintiff admitted that he could have performed the work in a safer manner but he chose this particular method to save time.  There was no safety guard on the table saw he was using, and plaintiff maintained that the safety guard did not fit the machine, although it was near it. 

Several witnesses gave conflicting evidence regarding the use of safety devices.  One witness said that a day or two before an inspection by OSHA occurred, Mr. Sellers directed that the safety guards be put on the saws to show compliance with OSHA regulations.  Another witness for defendant said that she told plaintiff  he was not allowed to remove a safety guard from a saw.

Plaintiff's expert argued that defendant should have fastened a safety guard to all saws to prevent the removal of the guard.  The expert contended that the failure to do this resulted in a substantial certainty of harm. 

The court reviewed the case law in New Jersey on intentional harm claims.  First, the court noted that the plaintiff must show a substantial certainty of harm existed as a result of the actions of defendant.  Even if that can be proved, the judge must consider whether the work conditions are a fact of industrial life and, therefore, not subject to suit.  This is known as the “context” bar.  The court said, “[T]he evidence before the trial court established that defendant instructed its workers that they should not operate the equipment without safety guards but defendant never implemented or enforced that policy.  The evidence also established that plaintiff and defendant's other employees operated the saws in the mill without safety guards.”

The court went on to rule against plaintiff: 

Even if we were to conclude that the evidence presented a jury question as to whether defendant acted with a substantial certainty that an employee would be injured if he used an unguarded table saw to make plunge cuts, we are convinced that the trial court correctly found that the injuries at issue here, and the circumstances under which they occurred, can fairly be viewed as a fact of life of industrial employment, and defendant's conduct was not beyond the purview of the conduct the Legislature intended to immunize from liability under N.J.S.A. 34:15-8.

This opinion illustrates more than any recent decision on the exclusive remedy how strong the state's exclusive remedy provision is in respect to civil suits against employers. It is a particularly helpful decision because it deals with the second prong of the intentional harm test, namely the “context” bar.


About the Author

John H. Geaney, a shareholder with Capehart Scatchard, 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. His blog may be read at

Mr. Geaney is a member of the National Workers' Compensation Defense Network.


Read More

Request a Demo

To request a free demo of one of our products, please fill in this form. Our sales team will get back to you shortly.