As noted in my June 6, 2012 discussion of Estes v. Airco Serv., Inc., 2012 U.S. Dist. LEXIS 72134 (N.D. Okla., May 24, 2012), below, an important exception to the exclusive remedy rule relates to intentional injury inflicted by the employer on an employee. In the majority of jurisdiction, “intent means intent.” That is to say the common-law liability of the employer cannot ordinarily be stretched to include work-related injuries caused by the gross, wanton, reckless, culpable, or malicious negligence or other misconduct of the employer. The employer must be shown to have had a conscious and deliberate intent directed to the purpose of inflicting an injury [see Larson’s Workers’ Compensation Law, § 103.03]. About a dozen states, however, have adopted the so-called “substantially certain” rule [Larson, § 103.04]. Borrowing from the tort world, courts in those jurisdictions have held that intent extends not only to those consequences that are desired, but also to those that the actor believes are substantially certain to follow from what he or she does.
Relying upon its earlier decision in Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 161, 501 A.2d 505 (1985), in which the Supreme Court of New Jersey adopted the “substantial certainty” rule, the state high court nevertheless reversed the decision of a lower appellate court which had found, on the basis of the employer’s OSHA violation, that there was substantial evidence of an intentional wrong [see Van Dunk v. Reckson Assoc. Realty Corp., 2012 N.J. LEXIS 678 (June 26, 2012)]. The Supreme Court observed that also under Millison, it had held that a probability or knowledge that injury or death could result was not sufficient to demonstrate an intentional wrong. Instead, an intentional wrong must amount to a virtual certainty that bodily injury or death will result. The high court concluded that in the instant case, the on-site supervisor made a quick but extremely poor decision and, against his own better judgment, sent the employee into a trench to perform a brief task. The Court said there was no objectively reasonable basis to conclude, however, that the violation of safety protocol was substantially certain to lead to injury or death during the few minutes the worker was going to be in the trench. The high court added that the Appellate Division’s totality of the circumstances analysis “overvalued the finding of a willful OSHA violation and parlayed the possibility or probability of a cave-in into satisfaction of the substantial-certainty test.” While the reasonable fact-finder could determine that the employer’s actions in the case constituted gross negligence, that showing was not enough to overcome the Act’s exclusivity requirement.