For most injured workers in New Jersey, the workers’ compensation system represents their exclusive remedy. They cannot sue their employer for a personal injury in a negligence action. They also are prohibited from suing a fellow employee for negligence. But what if the injury was caused by something beyond negligence?
A recent workers’ compensation case from New Jersey’s Appellate Division considered the issue of where a truck accident was caused by an employee driving on the wrong side of the road. The truck struck a utility pole and a tree and the other employee riding in the truck suffered seriously injuries.
The driver was charged with fourth-degree assault by auto because of the injuries he caused to his fellow employee. The injured employee received workers’ compensation benefits, but attempted to sue the driver directly.
The court found that while there was clearly a violation of “safety precautions,” it lacked the intentionality necessary to sue outside the workers’ compensation system.
The New Jersey Supreme Court has ruled that an Occupational Safety and Health Administration (OSHA) determination of a “willful violation” is insufficient to avoid the workers’ compensation bar.
To be intentional, the violation must go beyond simply a violation a safety regulation; “an intentional wrong must be accompanied by something more, typically deception, affirmative acts that defeat safety devices, or a willful failure to remedy past violations.”
This case appeared to lack that intentional motive. While driving on the wrong side of the road may be reckless, there was no showing that he drove that way in order to injure is fellow employee.
Source: Workerscompensation.com, “Employee Cannot Sue Fellow Employee Even If The Conduct Causing Injury Bordered On Criminal Negligence,” January 7, 2014