‘Intentional Wrongs’ in New Jersey

Courts & Compliance

Like quite a few states across the country, New Jersey's Workers' Compensation Act contains an exclusive remedy provision under which employees relinquish their right to pursue common-law remedies -- in other words, to sue -- in exchange for automatic entitlement to workers' compensation benefits when they suffer accidents arising out of and in the course of employment.

However, there is an exception to the "exclusivity bar" in New Jersey for injuries caused by "intentional wrongs." When the wrong is intentional, New Jersey law allows an employee to bring a tort claim against the employer.

Here are what a few Garden State courts have held on the "intentional wrong" exception.

Laidlow v. Hariton March. Co. 790 A.2d 884 (N.J. 2002)

To prove an intentional wrong under the Workers' Compensation Act, a worker must show:

(1) The employer knew that his actions were substantially certain to result in injury or death to the employee.

(2) The resulting injury and the circumstances of its infliction on the worker were: a) more than a fact of life of industrial employment; and b) plainly beyond anything the legislature intended the act immunize.

Additionally, an employer need not subjectively desire to harm an employee, but the employer must know that the "consequences of [the employer's] acts are substantially certain to result in such harm."

Rodriguez v. Shelbourne Spring, LLC, Nos. A-39 September Term 2023, 089044 (N.J. 12/12/24)

The "substantial certainty" test is a high standard to meet: To avoid allowing employees to circumvent the Workers' Compensation Act, courts "must be demand a virtual certainty" before employees can proceed under the intentional wrong exception to sue their employer in tort."

Van Dunk v. Reckson Associates Realty Corp., 45 A.3d 965 (N.J. 2012)

OSHA safety violations do not, on their own, establish the virtual certainty required to prove an intentional wrong. Instead, OSHA violations are simply "factors to be considered, given the facts of the case."

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