N.J. Turnpike Worker’s Death didn’t Result from ‘Willful Violations’

Case File

A worker lost his life due to an accident while working on the New Jersey turnpike, but the court didn't find enough to show that the employer committed "willful" violations for purposes of the exclusivity bar. Simply Research subscribers have access to the full text of the decision.

Case

Alexander v. Northeast Sweepers, No. A-1486-23 (N.J. Super. Ct. App. Div. 06/19/25, unpublished)

What Happened

While working in an active construction zone on the New Jersey Turnpike, a worker was killed when he was struck by a sweeper truck.

Several safety issues were alleged leading up to the accident, including:

+ The resident engineer was not licensed as an engineer but rather as a transportation engineering technician.

+ There were no light towers at the site.

+ Workers at the scene at not gone over a written traffic control plan.

+ The operator on the equipment that struck the worker had been referred to as a "dangerous operator," although no formal complaints had been made about the operator or his job performance.

After the accident, the Occupational Safety and Health Administration conducted an investigation and cited the employer for violations of the OSHA Act, including:

+ The employer failed to furnish employment and a place of employment that were free from recognized hazards that were causing or likely to cause death or serious harm to employees.

+The employer failed to establish a pre-planned traffic pattern for pedestrian and construction traffic to ensure the safety of the employees working and walking within the construction zone.

The type of violation was not as "serious," not "willful" or "repeated."

The worker's widow sued the employer, and the court granted summary judgment to the employer, ruling that there was no evidence that the employer committed an intentional wrong related to the accident and, therefore, it was shielded from liability under the New Jersey's Workers' Compensation Act.

The widow appealed to the next level in court.

Rule of Law

The New Jersey Workers' Compensation Act reflects "historic trade-off whereby employees relinquished their right to pursue common-law remedies in exchange for automatic entitlement to certain, but reduced, benefits whenever they suffered injuries by accident[s] arising out of and in the course of employment." Rodriguez v. Shelbourne Spring, LLC, 259 N.J. 385 (2024). The only exception to New Jersey's "exclusivity bar" is for injuries caused by "intentional wrongs."

To prove an intentional wrong, a worker must show:

(1) The employer must know that his actions are substantially certain to result in injury or death to the employee.

(2) The resulting injury and the circumstances of its infliction on the worker must be more than a fact of life of industrial employment and plainly beyond anything the legislature intended the Workers' Compensation Act to immunize.

What the Appellate Court Said

According to the appellate court, none of the evidence pointed to by the widow constituted evidence of an intentional wrong within the meaning of the Workers' Compensation Act.

"Although the evidence also establishes that there were no light towers, the lack of such towers does not establish an intentional wrong," the court wrote. "In that regard, plaintiffs presented no evidence that the lack of light towers made it almost a certainty that a worker would be struck by a sweeper truck that had a light shining behind it as it backed up."

The court also noted that allegations regarding backup alarms and mirrors did not rise to the level of an "intentional wrong" since there were alarms and the operator did not blame his inability to see the worker on the mirror.

Regarding the traffic plan, the court noted that the internal traffic controls were "pretty much the same every night on that particular job," employees would have had some level of familiarity with the internal traffic control plan, and no evidence showed that the lack of a plan made it highly likely that a truck would strike a worker.

On the topic of OSHA citations, the court noted that the violations were "serious" but not willful and that the New Jersey Supreme Court explained in Van Dunk v. Reckson Associates Realty Corporation, 45 A.3d 965 (N.J. 2012), that OSHA safety violations do not, on their own, establish the virtual certainty required to prove an intentional wrong and that OSHA violations are simply "factors to be considered, given the particular facts of the case."

Verdict: The appellate court affirmed the lower court's grant of summary judgment to the employer.

Takeaway

Safety challenges, by themselves, won't add up to an intentional wrong in New Jersey without more to show that an employer was "substantially certain" that harm would come to the worker.

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