Willful OSHA Violation Not Sufficient to Overcome Workers’ Compensation Bar

July 2, 2012

The New Jersey Supreme Court has ruled in Van Dunk v. Reckson Associates Realty, A-69-10, that a willful violation of OSHA regulations is not enough to permit an injured worker to overcome the workers’ compensation bar and pursue a tort action against his employer. The Court held that the workers’ compensation bar on civil tort suits prohibits an injured employee from filing a direct claim against his employer without a showing that a workplace safety violation was substantially certain to cause injury or death.

In Van Dunk, the plaintiff was a construction worker injured in a trench collapse as a result of what OSHA deemed a “willful violation” of its excavation safety regulations by his employer.  Based in part on this OSHA finding, the plaintiff filed suit against his employer.  In dismissing plaintiff’s claim against his employer, the Court held that the finding of a willful violation of OSHA regulations was not conclusive in analyzing whether the employer committed an intentional wrong, which would allow the plaintiff to overcome the workers’ compensation bar. Further, the Court maintained that the conduct prong of the two-part substantial-certainty test requires more than a mere likelihood or probability that the violation of a safety protocol would result in injury or death. Instead, the plaintiff must show that an objectively reasonable basis exists for the conclusion that a violation was almost certain to cause injury or death.

Should you have any questions concerning the impact of this ruling on liability claims or any other questions, please do not hesitate to contact our firm.

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