The New Jersey Workers’ Compensation Act (WCA) provides the exclusive remedy for claims against an employer for injuries sustained during employment. In exchange for providing certain payment without regard to fault, employers are provided immunity from tort liability arising out of an employee’s on-the-job injuries. That immunity, commonly referred to as the exclusivity bar, can only be overcome if the employee can show that the employer committed an “intentional wrong.” Several cases centered on the issue of what constitutes an “intentional wrong.” Those cases have gradually eroded the immunity afforded to employers under the WCA by expanding the definition of “intentional wrong.” However, in Van Dunk v. Reckson Associates Realty Corp., 210 N.J. 449 (2010), the court reversed course and reaffirmed the underlying principles of Millison, holding that not every deliberate act by an employer that leads to an employee injury is an intentional wrong.
The court first addressed the intentional wrong provision in Millison v. E.I. Dupont de Nemours & Co., 101 N.J. 161 (1985), where it articulated a two-prong test for determining whether an employer’s conduct is sufficiently egregious to circumvent the statutory bar. First, the employer must possess a “substantial certainty” that harm will result from its action. The court explained that “mere knowledge and appreciation of a risk—even the strong probability of a risk—will come up short of the ‘substantial certainty’ needed to find an intentional wrong.” In addition to satisfying that “conduct prong,” a plaintiff-employee bears the burden of establishing a second “context prong,” requiring that the injury and the surrounding circumstances are “plainly beyond anything the legislature could have contemplated as entitling the employee to recover only under the [Workers'] Compensation Act” and not simply “a fact of life of industrial employment[.]” Id. at 179.
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