In a recently unpublished decision,[1]the New Jersey Appellate Division in Morales v. Schneider has illustrated, once again, how difficult it is for a plaintiff to overcome the exclusive remedy provision, N.J.S.A. 34:15-8, pursuant to the Workers’ Compensation Act, N.J.S.A. 34:15-1 to -142. As will be detailed in this article, this provision requires that an injured employee prove an “intentional wrong” before she can recover damages from her employer over and above those permitted under the Workers’ Compensation Act.

In the case at bar, the Appellate Division considered the following pertinent facts in determining whether or not to reverse the trial court’s entry of summary judgment in favor of the employer. On December 31, 2009, the employer’s principal was driving a construction company truck down a road during a snowstorm while the plaintiff employee was in the passenger seat. The road was “a two-lane road on which the northbound and southbound lanes are divided by a double yellow line.” On the day in question, the road was snow-covered and traffic was moving slowly. While driving southbound, the employee’s principal crossed the double yellow line and entered the northbound lane in an effort to pass the slower southbound traffic. The principal drove for “more than a full block” in the northbound lane, when another truck travelling lawfully in the southbound lane began a left turn. In an effort to avoid hitting the truck, the principal “veered left, lost control of the vehicle, left the roadway, and hit a utility pole and a tree.” The plaintiff received Workers’ Compensation benefits for his serious injuries.

Meanwhile, the principal was issued motor vehicle summonses for reckless driving, N.J.S.A. 39:4-96; failing to keep right, N.J.S.A. 39:4-82; and improper passing, N.J.S.A. 39:4-85. He was also charged with fourth-degree assault by auto for “caus[ing] serious bodily injury … by recklessly driving” on December 31, 2009. The principal pled guilty to the motor vehicle summons for reckless driving.

In its appeal from an entry of summary judgment at the trial court level, the injured employee argued on appeal that the trial court erred in granting summary judgment because the principal “acted in contravention of State law by driving on the wrong side for over a block on a busy road and was charged criminally for his conduct[,]” making it “virtually certain” that the employee, a passenger in the employer’s truck, would be injured, and thereby overcoming the exclusive remedy provision.

In support of its affirmation of dismissal, the Appellate Division made note of the following legal principles. The Appellate Division first noted that the “intentional wrong” exception must be “narrowly construed” so as to preserve the exclusive remedy provision under the Workers’ Compensation Act. Second, trial courts “must determine whether the employer’s conduct evidenced a virtual certainty of death or injury.” Therefore, “[i]n addition to violations of safety regulations or failure to follow good safety practice, 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.” In short, while the knowing failure to take safety precautions was an “exceptional wrong,” it was not the type of egregious conduct associated with an intentional wrong.

With these principles in mind, the Appellate Division opined that “there is simply nothing in the record to support the claim that [the employer] acted with a deliberate intention to injure [the employee] or a virtual certainty that such an injury would occur. The record supports the argument that Schneider drove recklessly, but does not supportan intent to injure or a virtual certainty that injury will occur.”

[1]  “No unpublished opinion shall constitute precedent or be binding upon any court. Except for appellate opinions not approved or publications that have been reported in an authorized administrative law reporter, and except to the extent required by res judicata, collateral estoppel, the single controversy doctrine or any other similar principle of law, no unpublished opinion shall be cited by any court. No unpublished opinion shall be cited to any court by counsel unless the court and all other parties are served with a copy of the opinion and of all contrary unpublished opinions known to counsel.” New Jersey Rules of Court, R. 1:36-3.