• The Appellate Division Quashes an “Intentional Tort” Challenge to the Exclusive Remedy Provision of the Workers’ Compensation Act.
  • February 6, 2015 | Author: Dario J. Badalamenti
  • Law Firm: Marshall Dennehey Warner Coleman & Goggin, P.C. - Roseland Office
  • Blackshear v. Syngenta, Docket No. A-3525-12T1, 2014 N.J. Super. Unpub. LEXIS 2394 (App. Div., decided October 6, 2014)

    The petitioner was employed as a commercial pesticide applicator, and he was licensed by the State of New Jersey, Department of Environmental Protection. He participated in the state’s certification program, and he also attended recertification courses provided six or seven times a year by the respondent. The respondent provided the petitioner with material safety data sheets and labels for the pesticides it used, as well as a variety of personal protective equipment. The employer provided its employees with a laundry service so they did not have to launder their uniforms at home. The claimant learned in 2006 that had a cancerous brain tumor, and he died in 2007. The petitioner’s widow brought a wrongful death and survivorship action against the respondent and several pesticide manufacturers. The respondent/employer filed a motion for summary judgment based on the Act’s “exclusivity provision.” On appeal, the widow argued that by providing the petitioner with “inadequate” personal protective equipment, the respondent knowingly exposed him to cancer-causing pesticides and had concealed that information from him.

    In affirming the lower court’s granting of summary judgment, the Appellate Division relied on Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 161 (1985) and its progeny. In Millison, the Supreme Court adopted a “substantial certainty” standard to be used in evaluating employer intentional tort actions. As the Millison court explained, for an employer to lose immunity, a plaintiff must show that: (1) the employer must know that his actions are substantially certain to result in injury or death to the employee, and (2) the resulting injury and the circumstances of its infliction on the worker must be (a) more than a fact of life of industrial employment, and (b) plainly beyond anything the Legislature intended the Workers’ Compensation Act to immunize.

    The Appellate Division concluded that there was nothing in the record to support the widow’s claims that the respondent deliberately deceived the petitioner into believing that the personal protective equipment he was provided was adequate to protect him from the pesticides he was applying, thus constituting an intentional wrong under the statute.