United States: Modification of Safety Guard May Subject NJ Employer to Tort Liability on Substantially Certain Theory

Where an employee of a New Jersey company alleged that prior to his severe injury, the employer removed an important safety guard on a heavy machine, replacing it with a piece of tape so as to allow for continuous operation, and where the employee also alleged that his employer maintained an unwritten policy of avoiding the machine’s lock-out, tag-out (“LOTO”) safety feature, there was an issue of fact as to whether the employer’s actions amounted to intentional injury under New Jersey’s substantially certain exception to exclusivity. The court noted that was evidence from which a jury could conclude the employer had deliberately misled OSHA officials during its post-accident investigation. The employer’s summary judgment motion was, therefore, denied.

Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is co-author of Larson’s Workers’ Compensation Law (LexisNexis).

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See Sims v. VC999 Packaging Sys., 2020 U.S. Dist. LEXIS 42074 (D. N.J., Mar. 11, 2020)

See generally Larson’s Workers’ Compensation Law, § 103.04.

Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law

For a more detailed discussion of the case, see

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