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Calavano v. Federal Plastics Corp.

August 18, 2010


On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-492-07.

Per curiam.


Argued: April 14, 2010

Before Judges Cuff and C.L. Miniman.

Plaintiff lost a portion of his left arm in a workplace accident. Alleging intentional wrongdoing, plaintiff filed a complaint against his employer for compensatory and punitive damages. Finding that plaintiff failed to demonstrate that the workplace accident met the intentional wrong standard to allow an employee to seek damages from his employer, Judge Kathryn Brock granted summary judgment in favor of the employer. Plaintiff appeals. We affirm.

N.J.S.A. 34:15-8 normally bars a civil action by an employee against an employer for a workplace injury, unless the employee can demonstrate that the injury is the result of intentional wrongdoing by the employer. What conduct constitutes intentional wrongdoing by an employer has received considerable attention in the last eight years.

In Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 161 (1985), the Court recognized that the intentional wrong exception to the statutory exclusive remedy provision must be interpreted strictly to prevent the exception from consuming the exclusivity design of the Workers' Compensation Act. Id. at 177. Therefore, the Court was required to address what level of risk and exposure to danger is "so egregious as to constitute an 'intentional wrong.'" Ibid. The Court concluded that mere knowledge and appreciation of a risk of harm to an employee cannot be considered intent. Ibid. Similarly, the Court rejected a subjective intent to harm standard. Id. at 177-78. Rather, the Court adopted a "substantial certainty" standard.

Id. at 178. In addition, the Court held that the intentional wrong exception may be satisfied when the employer's conduct is "plainly beyond anything the legislature could have contemplated as entitling the employee to recover only under the Compensation Act[.]" Id. at 178-79.

In Laidlow v. Hariton Machinery Co., 170 N.J. 602 (2002), the Court undertook another examination of the intentional wrong exception in the context of an industrial accident where the safety device had been disengaged for reasons of speed and efficiency. The Court reviewed its decision in Millison and characterized the Millison rule as establishing a two-prong test which examines not only the conduct of the employer but also the context of the event. Justice Long wrote:

In addition to adopting Prosser's "substantial certainty" test relative to conduct, in Millison we added a crucial second prong to the test:

By addition of the context prong, Millison required courts to assess not only whether the employer acted with knowledge that injury was substantially certain to occur, but also whether the injury and the circumstances surrounding it were part and parcel of everyday industrial life or plainly outside the legislative grant of immunity. In other words, under Millison, if only the conduct prong is satisfied, the employer's action will not constitute an intentional wrong within the meaning of N.J.S.A. 34:15-8. That standard will be met only if both prongs of Millison are proved. [Laidlow, supra, 170 N.J. at 614-15.]

After determining that the facts in Laidlow, which included the disabling of a safety guard and deception of the Occupational Safety & Health Administration (OSHA), created a jury question on the conduct prong of the Millison test and that the context prong was met if Laidlow's allegations were proved at trial, id. at 622, the Court provided an analytical guide for judges who must consider and decide summary judgment motions based on the Workers' Compensation exclusivity provision. Justice Long wrote:

[A]s a practical matter, when an employee sues an employer for an intentional tort and the employer moves for summary judgment based on the Workers' Compensation bar, the trial court must make two separate inquiries. The first is whether, when viewed in a light most favorable to the employee, the evidence could lead a jury to conclude that the employer acted with knowledge that it was substantially certain that a worker would suffer injury. If that question is answered affirmatively, the trial court must then determine whether, if the employee's allegations are proved, they constitute a simple fact of industrial life or are outside the purview of the conditions the Legislature could have intended to immunize under the Workers' Compensation bar. Resolving whether the context prong of Millison is met is solely a judicial function. Thus, if the substantial certainty standard presents a jury question and if the court concludes that the employee's allegations, if proved, would meet the context prong, the employer's motion for summary judgment should be denied; if not, it should be granted. [Id. at 623.]

Recently, the Court has returned to the issue of an employer's common law tort immunity in three cases that apply and explain the Laidlow rule: Tomeo v. Thomas Whitesell Construction Co., 176 N.J. 366 (2003); Mull v. Zeta Consumer Products, 176 N.J. 385 (2003); ...

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