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Friday, November 18, 2011

Claim Permitted Against Employer For Concealment of Chemical Dangers

A Federal Court permitted a claim a claim by the estate of a former worker to advance against an his employer despite the exclusivity bar of the workers compensation act. The employer had not warned the employee of the potential deadly side effects of pesticides.


In satisfying the two prong (conduct and context) NJ test for an intentional tort against an employer, the employee's estate set forth that the employer had intentionally and fraudulently concealed information of the hazardous nature of the chemicals and substances that the employee worked with as an exterminator.


The employee, who applied pesticides for 11 years, was not furnished with adequate safety equipment and was not provided with warning materials available to the employer.


The court held that employer's conduct was substantially certain to cause injury or death. The estate filed a certification substantiating the events surrounding the exposure and death; material Safety Data Sheets; and expert reports. Where the conduct of the employer is actively misleading and illness and death were substantially certain to occur the employ can be held liable.


Where the conduct of the employer in not protecting the employee is more than a fact of industrial life and is "plainly beyond anything the Legislature intended the Workers' Compensation Act to immune," the compensation act is not an exclusive remedy against the employer.


The Court held that the employer "understood the hazardous nature of the chemicals but failed to provide the decedent with the equipment necessary to ensure his safety. ".... the employer turned a "blind eye to the risks inherent chemical in the use of the chemicals" and went as far as hiding those risks so that the employee was not aware of their existence. "Concealment is hardly an expected fact of life in industrial
employment."

Click Here For Complete Decision: Blackshear v. Syngenta Crop Protection, Inc., Civ. Action No. 10-3585 (KSH) (USDCT - NJ 2011)


For over 3 decades the Law Offices of Jon L. Gelman  1.973.696.7900  jon@gelmans.com have been representing injured workers and their families who have suffered occupational accidents and illnesses.