A New Jersey appellate court found that an employee could not proceed with an intentional tort claim against an employer because the evidence needed to meet the two-prong standard was lacking.
Showing posts sorted by date for query intentional tort. Sort by relevance Show all posts
Showing posts sorted by date for query intentional tort. Sort by relevance Show all posts
Tuesday, August 6, 2024
Intentional Tort v Negligence
Saturday, July 13, 2024
No Duty to Defend Intentional Tort Claim
In a per curiam opinion, the NJ Appellate Division affirmed that a workers’ compensation insurance company is not required to defend an intentional tort claim following a Section 20 resolution.
Wednesday, July 3, 2024
Trench Injury Not an Intentional Wrong
A Federal Court held that injuries sustained while cleaning a trench conveyor trim removal system at a paper manufacturing facility did not meet the threshold test for an intentional tort.
Monday, January 8, 2024
Not A Violation of Public Policy
In rejecting an employee’s attempt to go forward with a lawsuit directly against an employer, the NJ Appellate Division ruled, in an unreported case*, that an employee, in a novel argument, may assert the “violation of public policy” as an allegation.
Monday, May 30, 2022
Dual Employment Status Bars Double Recovery
An employee may have dual employers but ultimately can only receive a single recovery from only one employer for work-related injuries. The “exclusivity doctrine,” permitting a complete recovery of damages against an employer, limits an injured worker’s benefit recovery to the compensation system, barring an intentional tort.
Wednesday, April 13, 2022
Injury Caused by Defeated Machine Guard Results in OSHA Fine of $159,522
An employee working at Crystal Finishing Systems Inc.’s aluminum extrusion facility in Weston was hospitalized with serious injuries after being struck by a puller machine while trying to unjam a piece of aluminum.
Wednesday, March 30, 2022
The Risk of Working in a Factory
A Federal Court in NJ has dismissed a civil action for intentional tort brought by an injured worker against the employer.
Wednesday, June 9, 2021
The Exclusivity Rule Is Not A Bar to a Discrimination Action
The New Jersey Supreme Court ruled that an employer could be liable under both the Law Against Discrimination Act [LAD] and the Worker's Compensation Act (WCA). Court reasoned that the dual remedies can work in harmony as they are both statutory claims. The Court noted that the common law remedies of the LADs are not prohibited by the WCA since they are statutory in nature. By allowing both claims to go forward, a worker is not limited to the statutory caps for recovery under the Worker's Compensation Act.
Monday, August 10, 2020
Intentional Tort Claim Barred by the Exclusivity Rule
The New Jersey Workers Compensation Act (WCA), N.J.S.A. 34:15-1 to -146, generally prohibits employees from suing their employers for injuries sustained in workplace accidents. In a recent case the Court probed the boundaries of the "intentional wrong" exception to that general rule.
Thursday, July 23, 2020
Lessons from Asbestos Litigation Apply to COVID Claims
The rapid emergence of COVID-19 creates new challenges for the nation’s patchwork of state run workplace benefit delivery systems. This paper draws a comparison between COVID claims and asbestos claims, the “Largest and Longest” wave of occupational disease claims in the United States. The comparison offers insight into avoiding past economic, administrative and benefit delivery pitfalls. The lessons from asbestos claims provide an insight into maintaining a sustainable workers’ compensation system to meet the surge of COVID claims.
Thursday, December 5, 2019
Better Chemistry Through Regulation
The newly released movie, Dark Waters, provides a dramatic insight into the corporate disregard to human safety and life. The film, to be nationally released this weekend, puts into focus the chemical industry's utter disregard for human life that is compounded by the lack of governmental regulation of an out-of-control business.
Tuesday, April 2, 2019
Horseplay Is Not an Intentional Tort
Pranks at work may be
considered “arising out of the course of employment” and compensable
events. Those same injuries are not considered intentional events and would not give rise to cause a civil action against an employer for damages for pain and suffering.
Tuesday, March 26, 2019
Medical Treatment is an Exclusive Remedy Not a Reasonable Accommodation
The NJ Supreme Court has held that the provision of medical treatment does not equate to a "reasonable accommodation", therefore an employee cannot claim under the Law Against Discrimination [LAD] that failure to provide medical care was actionable. The provision of medical treatment is an exclusive remedy of the Workers’ Compensation Act.
Monday, February 26, 2018
Preventing Occupational Disease: NJ Governor Murphy Supports a Fracking Ban
The State of New Jersey now supports a ban on fracking. NJ Governor Pat Murphy recognized the health and environmental consequences of using this process to explore and mine for natural gas.
Saturday, April 5, 2014
EPA Takes Action to Protect Public from an Illegal Nano Silver Pesticide in Food Containers; Cites NJ Company for Selling Food Containers with an Unregistered Pesticide Warns Large Retailers Not to...
The U.S. Environmental Protection Agency has issued an order to the Pathway Investment Corp. of Englewood, New Jersey to stop the sale of plastic food storage containers that have not been tested or registered with the EPA, in violation of federal pesticides law. The company’s Kinetic Go Green Premium Food Storage Containers and Kinetic Smartwist Series Containers both contain nano silver as an active ingredient, and the company markets other products as containing nano silver, which the company claims helps reduce the growth of mold, fungus and bacteria. Such claims can only be made on products that have been properly tested and are registered with the EPA.
“Claims that mold, fungus or bacteria are controlled or destroyed by a particular product must be backed up with testing so that consumers know that the products do what the labels say,” said EPA Regional Administrator Judith A. Enck. “Unless these products are registered with the EPA, consumers have no information about whether the claims are accurate. The EPA will continue to take action against companies making unverified public health claims.”
Some pesticides have been linked to various forms of illnesses in people, ranging from skin and eye irritation to cancer. Some pesticides may also affect the hormone or endocrine systems. In many situations, there are non-chemical methods that will effectively control pests.
Under federal pesticide...
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Jon L. Gelman of Wayne NJ is the author NJ Workers’ Compensation Law (West-Thompson) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thompson). For over 4 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.
Related:
New York City workers have high pesticide exposure
Oct 04, 2013
The findings “underscore the importance of considering pest and pesticide burdens in cities when formulating pesticide use regulations,” the researchers from the city's Department of Health and Mental Hygiene wrote in the ...
http://workers-compensation.blogspot.com/
Intentional Tort Claim Against Employer Proceeds for Pesticide
Aug 11, 2010
A US District Court in NJ is allowing a claim of injured agricultural worker to proceed against an employer directly for an intentional tort flowing from a pesticide spraying. The workers, residents of Puerto Rico, were employed ...
http://workers-compensation.blogspot.com/
Workers' Compensation: Highly hazardous pesticides should be ...
Aug 11, 2013
The tragic incident in Bihar, India, where 23 school children died after eating a school meal contaminated with monocrotophos, is an important reminder to speed up the withdrawal of highly hazardous pesticides from markets ...
http://workers-compensation.blogspot.com/
Wednesday, December 11, 2013
How ALEC Serves As A 'Dating Service' For Politicians And Corporations
| ALEC has endorsed workers' compensation as program to shield corporate liability. " NOW THEREFORE BE IT RESOLVED, that the State of (insert state) specifically reaffirms the principle of workers’ compensation as the exclusive remedy and rejects the rationale for tort liability based on legal theories such as dual capacity/dual persona, intentional injury without proof that the employer acted with deliberate intention to cause the injury, or third party action against employers for work-related injuries." Today's post is shared from NPR.org . A batch of internal documents recently leaked to The Guardian has revealed new insights into the goals and finances of the secretive group called ALEC. The American Legislative Exchange Council is a group that brings together state legislators and representatives of corporations. Together, they develop model bills that lawmakers introduce and try to pass in their state legislatures. Through these model bills, ALEC has worked to privatize public education, cut taxes, reduce public employee compensation, oppose Obamacare and resist state regulations to reduce global warming gas emissions. "ALEC is like an incubator of predominantly conservative legislation," Guardian correspondent Ed Pilkington tells Fresh Air's Terry Gross. "The vast majority of the model bills are conservative in their... |
Tuesday, November 26, 2013
The Next Wave: N.H.L. Players Sue League Over Head Injuries
Occupational illness claims have been a traditional
battleground in workers' compensation for larger and more significant lawsuits
and dynamic changes in the safety of the workplace induced by economics.
From the lack of the incorporation of occupational claims in
the 1911 model workers' compensation acts, in the 1950's, employers and their
insurance companies sought refuge under the "exclusivity bar" of the. workers' compensation act to shield themselves from
negligence actions for silicosis and asbestosis claims.
The creativity of claimant's lawyers, and the blatant
intentional tort acts of unscrupulous asbestos companies, brought forth a
sweeping change in the economic balance as claimants used the civil justice
system to establish an avenue for adequate compensation for asbestos victims
(lung cancer, asbestosis and mesothelioma claims).
Asbestos litigation, "longest running tort, continues
today and is the perfect example of the societal benefits of a working civil
justice system. In fact, the same
dynamic existed in: tobacco litigation, lead paint litigation, latex litigation
and has been repeated many times over.
The civil justice system, not the workers' compensation
system, established an economic incentive establishing a safer workplace for workers
and their families.
It is more than obvious that contact sports are seeing the
next wave of litigation as the employers and their insurance companies
accelerate the cycle, by barring professional athletic players from even
seeking workers' compensation benefits, ie. California.
Since it appears that no safe helmet can be manufactured to
protect the mayhem of some contact sports, the business of sports will be the
next "industry" to experience economic incentives to make the
workplace safer. The higher education system will just have to find another
economic engine to fund colleges and university and stop luring students to
play dangerous sports in hope of winning the professional sports lottery.
First football, now hockey, are emerging targets of the civil
justice system as the economics of safety takes hold and the need for safety
takes hold. Today's post is shared from the nytimes.com.
Ten former N.H.L. players sued the league Monday
for negligence and fraud, saying the sport’s officials should have done more to
address head injuries but instead celebrated a culture of speed and violence.
The players, who were in the league in the 1970s,
’80s and ’90s, filed their suit in federal court in Washington. One of the lead
lawyers is Mel Owens, a former N.F.L. player who has represented scores of
other retired players in workers’ compensation cases.
[Click here to see the rest of this post]
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Jon L. Gelman of Wayne NJ is the author NJ Workers’ Compensation Law (West-Thompson) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thompson). For over 4 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.
Thursday, September 26, 2013
Exclusivity Rule: Court Holds Risk of Death Contemplated by Legislature
A NJ Appellate Court has ruled that the Exclusivity Bar prohibits the estate of a fatally injured trash truck driver from proceeding with an intentional tort claim against his employer. Even though the employer may have defeated the neutral safety switch and was cited for violations by OSHA, the Court ruled that the industry risk of being fatally injured was contemplated by the Legislature when promulgating the NJ Workers' Compensation Act.
Sellino v Pinto Brothers Disposal, Docket No. A-2064-12T1, 2013 WL 5300076 (Decided: September 23, 2013)
Sellino v Pinto Brothers Disposal, Docket No. A-2064-12T1, 2013 WL 5300076 (Decided: September 23, 2013)
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Jon L. Gelman of Wayne NJ is the author NJ Workers’ Compensation Law (West-Thompson) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thompson). For over 4 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.
Tuesday, June 11, 2013
OSHA fines two companies $130,500 for trenching hazards at Kearny, NJ, site
Many workers' compensation accidents occur while working in trenches. The employer in NJ is insulated under the exclusivity doctrine from a claim for negligence. An employee's only remedy in many instances is only the NJ Workers' Compensation benefits.
VM Construction Inc., based in Miami, and Concrete Systems Inc., based in Sterling, were cited by the U.S. Department of Labor's Occupational Safety and Health Administration for willful and repeat trenching hazards found at a Kearny work site. OSHA's November 2012 investigation was prompted by an imminent danger complaint that alleged workers
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| English: Logo for the United States Occupational Safety and Health Administration. (Photo credit: Wikipedia) |
operated in an unprotected excavation 8 feet deep.
One willful violation, carrying a $28,000 penalty, was cited against VM Construction Inc. for those workers operating in an unprotected excavation. A willful violation is one committed with intentional, knowing or voluntary disregard for the law's requirements, or with plain indifference to worker safety and health. The construction company was also cited for one serious violation, with a $2,400 penalty, for failing to ensure a competent person inspected the excavation prior to allowing workers to enter. A serious violation occurs when there is substantial probability that death or serious physical harm could result from a hazard about which the employer knew or should have known.
Concrete Systems Inc., a concrete and masonry contractor, faces $100,100 in penalties for two repeat violations involving workers operating in an unprotected excavation and entering an excavation that was not inspected beforehand by a competent person. A repeat violation is issued when an employer previously has been cited for the same or a similar violation of a standard, regulation, rule or order at any other facility in federal enforcement states within the last five years. Similar violations were cited in 2008.
Because of the nature of the hazards and the violations cited, Concrete Systems has been placed in OSHA's Severe Violator Enforcement Program, which mandates targeted follow-up inspections to ensure compliance with the law. OSHA's SVEP focuses on recalcitrant employers that endanger workers by committing willful, repeat or failure-to-abate violations. Under the program, OSHA may inspect any of the employer's facilities if it has reasonable grounds to believe there are similar violations.
"Improperly protected trenches can collapse suddenly and with great force," said Kris Hoffman, director of OSHA's Parsippany Area Office. "OSHA implemented a trenching and excavation special emphasis program in the 1980s, so the industry is well aware of the safety regulations for trenching operations."
Detailed information on safeguards for excavation and trenching is available at http://www.osha.gov/SLTC/trenchingexcavation/index.html.
The citations can be viewed at http://www.osha.gov/ooc/citations/ConcreteSystems_772381_0605_13.pdf* and http://www.osha.gov/ooc/citations/VMConstruction_770662_0605_13.pdf*.
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For over 4 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. Click here now to submit a case inquiry.
Read more about trenches and workers' compensation benefits.
Oct 20, 2011
Recently NJ Courts have held that trench accidents were not a mere fact of industrial life and were beyond intent of Act's immunity provision. A claim was permitted directly against the employer in addition to the workers' ...
Jun 27, 2012
The issuance of a willful OSHA violation against employer (trench collapse injury) was insufficient to defeat a motion for summary judgment, so the Court examined the totality of the circumstances of the accident and applies ...
Wednesday, December 19, 2012
Football Concussions – An Epidemic Failure of Safety
Story after story is now emerging of the tragedy of head
concussions incurred during the sport of football. While the a battle is
brewing over jurisdictional issues involving filing Workers’ Compensation
claims in the State of California, a larger epidemic of product liability
claims is now emerging against Riddell, the major manufacturer of football
helmets.
The Sacramento Bee reported a sad story
about Dan the Morann, the former San Francisco 49ers first draft pick, who
suffered from tragic dementia.
One would think that workers’ compensation had some economic
incentive to provide a safer workplace. Unfortunately, that is not the case.
The workers’ compensation system was crafted as a social insurance program to provide
benefits to workers who were injured in the course of their employment, and a
summary and expeditious fashion. The
cost of safety was never placed into the economic equation for workers’ compensation.
The cost of workers’ compensation is theoretically to be
passed upon the consumer as a cost of doing business. It is not a tool to
encourage a safe workplace.
On the other hand, the civil justice system affords injured
workers and their families another avenue to seek benefits by assessing
punitive damages against the manufacturer suppliers and distributors of unsafe
products. Unfortunately, very few jurisdictions permit claims against employers
to circumvent the exclusive bar incorporated into most state workers’
compensation acts.
Perhaps, it is time to rethink the Worker’s Compensation
program entirely and place it into a medical care delivery system that really works and utilize the civil litigation
system as a tool to enhance safety in the workplace to prevent future accidents
from happening.
....
Jon L.Gelman of Wayne NJ, helping injured workers and their families for over 4 decades, is the author NJ Workers’ Compensation Law (West-Thompson) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thompson).
Jon L.Gelman of Wayne NJ, helping injured workers and their families for over 4 decades, is the author NJ Workers’ Compensation Law (West-Thompson) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thompson).
Read more about the “exclusivity bar” and Worker’s
Compensation
Jul 11, 2012
In a Multidistrict Litigation (MDL) case pending in New York, a Federal Court ruled that the New Jersey law governing exclusivity of claims barred an employee from proceeding with an intentional tort claim against the ...
Jun 13, 2012
Court Rules Site of Accident Invokes Exclusivity Rule. English: Motor vehicle accident following a ve... A NJ appeals court ruled that a motor vehicle accident cause by a co-worker in the emplyers' parking lot, before work had ...
Apr 09, 2010
A Federal Judge, who is managing the Multi-District Asbestos Litigation, has ruled that the exclusivity doctrine defeats the application of the dual capacity doctrine where the manufacturer's corporation was merged into the ...
Jun 27, 2012
Willful OSHA Violation Alone Not Enough Alone to Circumvent the Exclusivity Doctrine. "New Jersey's Workers' Compensation Act (the Act), N.J.S.A. 34:15-1 to -128.5, provides a prompt and efficient remedy for an employee's ...
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