Appellate Division Judge Jose Fuentes

A New Jersey appeals court on Wednesday reinstated an intentional tort claim filed by a worker alleging he was injured because of an “intentional wrong” committed by his employer.

The three-judge Appellate Division panel, in an unpublished decision in Soto v. ICO Polymers North America, said there was enough evidence to indicate that the company failed to fix safety violations at its Asbury facility that eventually led to an explosion that severely injured the employee, Medwin Soto, who is seeking to overcome the bar on tort claim recoveries normally imposed on workers' compensation beneficiaries.

“[W]e are satisfied that a rational jury can find that at the time of the accident, defendant was aware that the conditions at the Asbury facility exposed employees like plaintiff to a high risk of serious injury or death,” wrote Appellate Division Judge Jose Fuentes, joined by Judges Marie Simonelli and Greta Gooden Brown.

The judges said there was clear evidence that ICO managers failed to fix electrical problems that led to one earlier fire. At the time, ICO was in the process of closing its Asbury facility and preparing to move to a state-of-the-art facility in Allentown, Pennsylvania, the ruling said.

ICO is a company that pulverizes plastic pellets into powder, a process that creates a fine powder that is highly combustible, the ruling said. Company managers found that after the initial fire in 2007, which led to the imposition of a $7,500 fine by the federal Occupational Health and Safety Administration, managers took little or no action to mitigate the powder accumulation, the ruling said.

Soto was injured in a second explosion on July 26, 2008. At the time, there were no sprinkler systems and no exit door, the ruling said. Soto sustained second- and third-degree burns over 12 percent of his body, the suit claims.

Soto was awarded workers' compensation benefits, but he nevertheless filed a claim against ICO. Normally, if an injured employee is granted workers' compensation benefits, he is barred from filing a lawsuit against the employer.

A trial judge dismissed the claim against ICO on summary judgment, and Soto appealed.

Fuentes said there is an exception to that rule when the employer acts deliberately.

“[A] jury can find defendant engaged in a cost-benefit analysis and decided it was more economically sound to place plaintiff at substantial risk of serious injury or death than to repair the … facility's electrical system,” Fuentes said.

Soto's attorney, Brielle solo Robert Daroci, said he was pleased with the ruling.

“It was a difficult hurdle to overcome, but we were able to do it,” Daroci said. “The court reached the correct decision.”

ICO's attorney, Amanda Sawyer, of the Edison office of Methfessel & Werbel, said she plans on appealing the ruling.

“We believe the decision is wrong, and at the most, he established a possible case of negligence,” she said.

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