Jury-Rigged “Safety” Mechanism Subjects NJ Employer to Substantially Certain Tort Claim

Allegations that a New Jersey company maintained an unwritten policy of avoiding the use of a lock-out, tag-out (“LOTO”) safety feature on a machine because doing so would require a 45-minute shut-down, and that in the year prior to an employee’s serious amputation injury, the company removed an important safety guard and replaced it with tape in order to keep the machine operating were sufficient to raise an issue of fact as to an intentional injury under the state’s substantially certain exception, held a federal district court in Sims v. VC999 Packaging Sys., 2020 U.S. Dist. LEXIS 42074 (D. N.J., Mar. 11, 2020). Accordingly, the district court denied the employer’s motion for summary judgment.

Background

Sims worked as an electromechanical technician in a mail-order pharmacy facility in Florence, New Jersey. Sims’ left arm was severely crushed and burned when a coworker activated a heavy machine while Sims was servicing it. His arm was ultimately amputated below the elbow.

Sims received more than $1 million in workers’ compensation benefits, but filed a civil action against the employer, seeking damages under the “intentional wrong” exception of New Jersey’s Workers’ Compensation Act.

According to Sims’ allegations, which the court considered as true for the purposes of the summary judgment motion, the particular machine in question was equipped with multiple safety procedures, including a LOTO feature. Sims alleged the employer maintained an unwritten policy of avoiding using LOTO on the machine because doing so required a 45-minute shut-down, which negatively affected productivity. Sims presented other evidence that at least one other technician had expressed concerns about the lack of LOTO usage.

Sims also alleged that in 2014, the company removed a safety guard on the machine with the intention of replacing it with a modified guard, but that the modified guard had not been installed and instead, a piece of tape was used to bypass the safety feature in order to operate the machine. Photos provided to OSHA related to its investigation, however, showed the modified guard in place.

The Millison/Laidlow Decision

The federal court outlined New Jersey’s substantially certain exception to exclusivity under Millison v. E.I. Du Pont de Nemours & Co., 101 N.J. 161, 501 A.2d 505, 512 (1985), as explained in Laidlow v. Hariton Machinery Company, Inc., 170 N.J. 602, 790 A.2d 884 (N.J. 2002) [see Larson’s Workers’ Compensation Law, § 103.04[2][e]]. Under the Millison/Laidlow rule, the New Jersey Supreme Court created a two-prong test to determine if an employer's conduct constituted an "intentional wrong”:

1. The employee must know that the employer’s actions were substantially certain to result in injury or death to the employee, and
2. The resulting injury and the circumstances of its infliction on the worker must be (a) more than a fact of life of industrial employment and (b) plainly beyond anything the Legislature intended the Workers' Compensation Act to immunize.

Issue of Fact

Ultimately, the court determined that jury could reasonably conclude that the employer had an unwritten policy against using LOTO on the machine, that the employer or the employer’s contractor removed the machine’s safety guard and added tape so as to bypass the machine’s safety mechanism, and that the employer subsequently deliberately misled OSHA during its post-accident investigation by withholding information about the safety guard’s status at the time of the accident. Those issues of fact precluded summary judgment, said the court.