Brian Sims suffered a terrible injury working for Express Scripts, Inc. (hereinafter ESI) on August 24, 2015 when his hand was caught in an industrial machine, leading to the amputation of his left hand and wrist. He brought a civil law suit against his employer alleging willful and intentional conduct. Express Scripts moved to dismiss the complaint as barred by the exclusive remedy rule in the Division of Workers’ Compensation.
In evaluating the motion to dismiss the complaint, the Court noted that plaintiff did allege that the conduct of defendants was intentional by altering or removing safety features or permitting the non-existence of safety features. The Court said, “Plaintiff makes only conclusory statements that ESI acted ‘knowing with substantial certainty’ that injury would result from its actions; he alleges no facts or circumstances to support that claim. . . “ The Court added that plaintiff failed to indicate what specific safety features were missing, who altered or removed them, and how these safety features might have prevented Plaintiff’s injury. The Court said, “Plaintiff’s mere recital of a requirement of the ‘intentional wrong’ exception cannot survive ESI’s motion to dismiss.”
The Court said it was not enough to just allege that a safety guard was missing: “Here, Plaintiff has not identified what specific safety device was allegedly removed or altered and for what reason, nor that ESI was ‘substantially certain’ that injury to its workers would occur as a result of such conduct.” The Court noted that removal of a safety device standing alone does not equate to “intentional wrong.”
The Court granted ESI’s motion to dismiss without prejudice, allowing plaintiff one more opportunity to provide a factual basis for the alleged intentional harm allegations.
This case underscores a strong theme in New Jersey case law, namely that it remains extremely difficult to surmount the exclusive remedy hurdle in this state. It is not enough to file a complaint that provides the magic words regarding substantial certainty to cause injury. One must provide factual support for the allegations or risk having the case dismissed.
John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group. Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e?mail at firstname.lastname@example.org.
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