NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-4711-18T1
CARLTON HOCUTT III,
APPROVED FOR PUBLICATION
MINDA SUPPLY COMPANY August 7, 2020
MINDA SUPPLY COMPANY,
COMPANY d/b/a HARLEYSVILLE
WORCESTER INSURANCE CO,
Argued telephonically April 20, 2020 –
Decided August 7, 2020
Before Judges Ostrer, Vernoia and Susswein.
On appeal from the Superior Court of New Jersey,
Law Division, Bergen County, Docket No. L-6537-17.
Joseph M. Cerra argued the cause for appellant (Lynch
Lynch Held & Rosenberg, PC, attorneys; Joseph M.
Cerra, on the briefs).
Lance J. Kalik, argued the cause for respondent (Riker
Danzig Scherer Hyland & Perretti, LLP, attorneys;
Lance J. Kalik, of counsel and on the brief; Alfonse R.
Muglia, on the brief).
The opinion of the court was delivered by
SUSSWEIN, J.S.C. (temporarily assigned)
Plaintiff, Carlton Hocutt, III, appeals from a grant of summary judgment
in favor of defendant, Minda Supply Co. (Minda). Hocutt was injured in a
forklift accident while working at Minda's warehouse. He sued Minda
claiming the company was negligent in directing him to ride as a passenger on
a forklift in violation of federal workplace safety regulations. The trial court
dismissed the complaint, ruling that Hocutt's exclusive remedy rests in
Hocutt contends the trial court erred in applying the New Jersey
Workers' Compensation Act (WCA), N.J.S.A. 34:15-1 to -146. He asserts that
he was not employed by Minda but rather by an employee leasing agency. He
further contends that even if he were deemed to be an employee of Minda for
purposes of the WCA, he is not barred under the statute from suing Minda
because the company committed intentional wrong. After reviewing the record
in view of the applicable legal principles and the parties' arguments, we reject
Hocutt's contentions and affirm the grant of summary judgment.
In September 2017, Hocutt filed a civil complaint against Minda alleging
that his injury was caused by the company's negligence. Minda asserted as an
affirmative defense that Hocutt's claim is precluded by the WCA, which
generally provides exclusive remedies for workplace injuries. Once discovery
was completed, Minda moved for summary judgment. After hearing oral
argument, the Law Division judge granted Minda's motion for summary
judgment, dismissing Hocutt's complaint with prejudice.
Minda operates a warehouse that stores goods for the dry-cleaning
industry. Forklifts are used at the warehouse to move pallets of supplies. It
was a common practice at the warehouse for a worker to ride on the forklift,
standing on either the front or back of the forklift while it was moving. This
practice violates federal workplace safety regulations.
Minda uses the services of an employee leasing agency, Express. The
staffing agreement between Minda and Express provides that Express is
responsible for paying the loaned workers. Minda reimburses Express for
those wage payments by agreeing "to pay the charges based on the time card or
other mutually acceptable recording method." The staffing agreement
specifies that Minda will "supervise, direct, and control the work" of the
employees Express loans to Minda. The staffing agreement also authorizes
Minda to hire a loaned worker after a set period of time or for an agreed upon
Hocutt registered with Express looking for work. Hocutt initially turned
down several work opportunities that were offered by Express, eventually
accepting an opportunity to work at Minda's warehouse. Hocutt reported to
Minda the next day.
On his second day working at the warehouse, Hocutt was instructed by
his supervisor, Rich, to team up with a forklift operator, Will. Rich told
Hocutt that Will was "real fast paced" and that Hocutt could "learn a lot from
him." Will had worked at Minda for approximately a year.
Minda had assigned Will to drive forklifts after only several months of
employment because of a shortage of forklift operators. Will had operated
forklifts at a prior job where he had been provided with some informal
instruction and attended a certification class. Will never presented Minda with
the certification. Minda "took [Will's] word for it" and allowed Will to operate
a forklift. Minda provided Will informal instruction on how to operate the
machine and allowed him to practice when employees were not busy, and
another operator was available to watch.
Hocutt, Will, and Rich observed a forklift pass by. An employee was
standing on the forklift as a passenger. Rich pointed to it and told Hocutt,
"you are going to get on the forklift like that." Shortly thereafter, Hocutt
positioned himself on the back of the forklift that Will was operating. After
just a few minutes, Will inadvertently backed the forklift into an I-Beam.
Hocutt's leg was seriously injured in the collision and he was taken to a
hospital by ambulance. The injury required a skin graft and four surgeries.
Following the accident, the U.S. Department of Labor Occupational
Safety and Health Administration (OSHA) issued three citations to Minda.
The first citation, which was classified as "serious," cited a violation of 29 C.F.R. 1910.178(I)(1)(i) for allowing an employee to operate a forklift without
proper training and evaluation. The second citation, which was also classified
as "serious," cited a violation of 29 C.F.R. 1910.178(m)(3) for allowing an
employee to ride on the forklift. OSHA issued a third "other-than-serious"
citation for a violation of 29 C.F.R. 1904.39(a)(2) for failing to report the
hospitalization of an employee to OSHA within twenty-four hours.
We begin our analysis by acknowledging certain legal principles that
govern this appeal. As a general proposition, a court must grant summary
judgment if "the pleadings, depositions, answers to interrogatories and
admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact challenged and that the moving party is
entitled to a judgment or order as a matter of law." R. 4:46-2. When
reviewing a motion court's grant of summary judgment, an appellate court uses
the same standard as the motion court. Globe Motor Co. v. Igdalev, 225 N.J.
469, 479 (2016) (citations omitted). First, we must decide whether there wa s a
genuine issue of fact. In re Estate of DeFrank, 433 N.J. Super. 258, 265 (App.
Div. 2013) (citations omitted). When reviewing summary judgment, we view
the facts "in the light most favorable to the non-moving party." Brill v.
Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). If there is no
genuine issue of fact, then we must decide whether the lower court correctly
ruled on the law. Estate of DeFrank, 433 N.J. Super. at 267 (citing Walker v.
Atl. Chrysler Plymouth, Inc., 216 N.J. Super. 255, 258 (App. Div. 1987)).
In this case, there does not appear to be a dispute with respect to the
pertinent facts. Both parties agree that Minda employees engaged in a practice
of riding on forklifts. Accordingly, this case hinges on the trial court's
interpretation of the WCA.
In construing that statute, we take note that it "accomplished a 'historic
trade-off whereby employees relinquished their right to pursue common-law
remedies in exchange for automatic entitlement to certain, but reduced,
benefits whenever they suffered injuries by accident arising out of and in the
course of employment.'" Van Dunk v. Reckson Assocs. Realty Corp., 210 N.J.
449, 458–59 (2012) (quoting Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 161, 174 (1985)). Generally, when the parties have accepted the
provisions of the Act, "the agreement operates as an employee's surrender of
other forms of remedies." Id. at 459 (citing N.J.S.A. 34:15-8).
Hocutt contends the trial court misinterpreted the statute in ruling that i t
barred him from bringing suit against Minda. He raises two distinct legal
arguments in support of that contention: (1) he was not an employee of Minda
for purposes of the WCA; and (2) Minda committed "intentional wrong,"
thereby exempting this case from the exclusive remedy of the WCA. We
address each of these contentions in turn.
The trial court found that Hocutt was a "special employee" of Minda,
which was Hocutt's "special employer." Hocutt disputes that determination on
the grounds that he did not give "informed consent" to the special employee-
employer relationship. We reject that contention.
In Kelly v. Geriatric & Medical Services, Inc., we developed a five-
pronged test to assist courts in determining whether a worker is a special
employee for purposes of the WCA. 287 N.J. Super. 567, 571–72 (App. Div.
1996). We explained:
The applicable, though not exclusive, legal criteria to
establish a special employer-special employee
relationship involves the following fact-sensitive five-
(1) the employee has made a contract of hire, express
or implied, with the special employer;
(2) the work being done by the employee is essentially
that of the special employer;
(3) the special employer has the right to control the
details of the work;
(4) the special employer pays the employee's wages;
(5) the special employer has the power to hire,
discharge or recall the employee.
[Id. at 571–72.]
In Kelly, we concluded that the plaintiff who was employed through a staffing
agency, like Hocutt, was a "special employee." Id. at 577–78.
The key factor in dispute in this case is whether "the employee has made
a contract of hire, express or implied, with the special employer." Id. at 571.
Hocutt relies on our decision in Blessing v. T. Shriver & Co. to support his
contention that the first prong has not been established. 94 N.J. Super. 426,
436 (App. Div. 1967). Our interpretation of Blessing leads us to a contrary
conclusion. In Blessing, we emphasized the importance of
the fact that the proofs do not suggest any consensual
relationship between plaintiff, a so-called 'loaned'
employee, and defendant for whose benefit his
services as a guard were rendered. While such a
consent may be expressed or implied, there is nothing
in the record upon which to predicate a finding of
knowledgeable consent or a fair inference that an
employment relationship between those parties
[Ibid. (emphasis added).]
We believe that in the present case there is, at least, an implied
consensual relationship between Hocutt and Minda. In Antheunisse v. Tiffany
& Co., we concluded the plaintiff had impliedly contracted with the special
employer by voluntarily reporting to the special employer's workplace after the
staffing agency provided her the name of the employer and advised her as to
the nature of the work. 229 N.J. Super. 399, 404 (App. Div. 1988).
Furthermore, the staffing agency provided her an "opportunity to refuse the job
without fearing any reprisal from the agency." Ibid.
In this instance, the record shows that Hocutt turned down job offers
from Express before accepting the opportunity to work at Minda's warehouse.
Hocutt's decision to decline work offers was done without fear of reprisal from
the agency as shown by the fact that Express continued to present work
opportunities to Hocutt.
Furthermore, Hocutt accepted the offer from Express to work at Minda's
warehouse and reported to the warehouse to work. He returned to work at the
warehouse the next day and accepted instructions from a Minda supervisor. In
these circumstances, we conclude that Hocutt impliedly consented to a special
We add that even were we to assume for purposes of argument that there
was some uncertainty as to the consensual nature of the relationship between
Hocutt and Minda, it is not necessary to establish all five factors for a worker
to be deemed to be a special employee under the Kelly test. In that case, for
example, we concluded the plaintiff was a special employee notwithstanding
the failure to prove prong four—the special employer paid the employee's
wages. 287 N.J. Super. at 573, 577 ("We have given little weight to [prong
four] in our finding of special employment.").
Although the remaining four prongs of the Kelly test do not appear to be
in dispute in the matter before us, we note that they are indeed established by
the undisputed facts. The third and most important prong—that the special
employer controls the work—certainly applies in this case. See Volb v. G.E.
Capital Corp., 139 N.J. 110, 116 (1995) ("[T]he most important factor in
determining a special employee's status is whether the borrowing employer
had the right to control the special employee's work."). When Hocutt reported
to the warehouse, a Minda supervisor assigned his tasks for the day. Further,
the staffing agreement expressly provides: "[Minda] will supervise, direct, and
control the work performed by [Express's] associates." There is little doubt
that Minda controlled Hocutt's work at the warehouse.
Additionally, prong two is clearly established. Hocutt's work at Minda
was "essentially that of the special employer" because his assigned tasks were
directly related to Minda's dry cleaning warehouse business. See Kelly, 287 N.J. Super. at 572 (observing the employee did not dispute that the nursing
work she performed for a health care facility was essentially that of the health
care facility); Antheunisse, 229 N.J. Super. at 404 (noting the employee
conceded "her assigned task of packing china and crystal" was definitely a part
of the regular business of Tiffany's packing department).
Prong four also is satisfied. The staffing agreement provides that while
Express would directly pay loaned workers, Minda agreed "to pay [Express]
the charges based on the time card or other mutually acceptable recording
method." This arrangement is significantly different from the payment scheme
in Kelly where the employee was paid by the staffing agency and the fee the
special employer paid to the staffing agency was not tied to the employee's
actual wages. 287 N.J. Super. at 573. We noted in Kelly this prong could
have been met if, instead, "the wages were paid directly by [the special
employer], or if the fee paid to the [staffing] agency was based on a percentage
scale linked to the employee's wages." Id. at 577 (emphasis added). In the
present case, Minda agreed to reimburse Express for the monies Express paid
to loaned workers. The fee Minda paid to Express, in other words, was linked
directly to Hocutt's wages.
Finally, the fifth prong—that the special employer can hire, discharge, or
recall the employee—is also established. The staffing agreement expressly
provides that Minda could hire an Express employee after a period of time or
for a fee. Minda thus clearly had the power to hire Express employees,
Considering all of the Kelly factors, we conclude, as did the trial court,
that Hocutt was a "special employee" of Minda. Hocutt's status as a special
employee thus subjects him to the exclusive remedy of workers'
Although not addressed by the motion court, another provision of the WCA
subjects Hocutt to the exclusive remedy of workers' compensation. In
particular, N.J.S.A. 34:8-72(b) expressly extends statutory immunity from suit
to companies that hire or lease workers from employee leasing companies.
This statute provides an independent basis for the conclusion that Hocutt is
subject to the exclusive remedy of workers' compensation. See State v.
We turn next to Hocutt's argument that his suit is not barred under the
WCA because Minda's conduct constitutes intentional wrong. N.J.S.A. 34:15- -
If an injury or death is compensable under this article,
a person shall not be liable to anyone at common law
or otherwise on account of such injury or death for
any act or omission occurring while such person was
in the same employ as the person injured or killed,
except for intentional wrong.
Our survey of the case law interpreting this exception leads us to
conclude that Minda's conduct was not sufficiently egregious to rise to the
level of intentional wrong.
The New Jersey Supreme Court set the framework for our analysis in
Millison. The Court replaced the previous "deliberate intention" standard with
a "substantial certainty" test. Id. at 178. We believe the Court thereby
intended to narrow the circumstances when the intentional wrong exception
applies in recognition that reckless or negligent conduct all too often reflects a
Heisler, 422 N.J. Super. 399, 416 (App. Div. 2011) ("We are free to affirm the
trial court's decision on grounds different from those relied upon by the trial
"deliberate" decision by employers to promote speed and efficiency at the cost
of reduced workplace safety. In adopting the new standard, the Court
explained, "the dividing line between negligent or reckless conduct on the one
hand and intentional wrong on the other must be drawn with caution, so that
the statutory framework of the Act is not circumvented simply because a
known risk later blossoms into reality. We must demand a virtual certainty."
To further aid trial and appellate courts in determining whether
intentional wrong was committed for purposes of the WCA, the Court created
a two-pronged test consisting of a "conduct" prong and a "context" prong. Id.
at 178–79. The Court held:
Courts must examine not only the conduct of the
employer, but also the context in which that conduct
takes place: may the resulting injury or disease, and
the circumstances in which it is inflicted on the
worker, fairly be viewed as a fact of life of industrial
employment, or is it rather plainly beyond anything
the legislature could have contemplated as entitling
the employee to recover only under the Compensation
[Id. at 179 (emphasis omitted).]
To sum up, the Court in Millison held that to fall under the intentional
wrong exception to the general rule that bars employees from suing employers
for workplace injuries, a plaintiff must first establish the employer knew that
that its actions were substantially certain to result in injury or death to the
employee. The plaintiff must further show that the resulting injury and the
circumstances of its infliction were more than a fact of life of industrial
employment and plainly beyond anything the Legislature intended the WCA to
The Court in Millison applied this analytical template to a situation
where the employer knowingly exposed its employees to asbestos. The
employees claimed the WCA did not bar their lawsuit because the company's
doctors failed to properly inform them of the progression of their asbest os-
related diseases. Id. at 181–82. Chest x-rays revealed the asbestos-related
conditions, but the employer's doctors told the employees that "their health
was fine and sent them back to work under the same hazardous conditions that
caused the initial injuries." Id. at 182. The Court emphasized the importance
of fraud and deception in determining whether there is intentional wrong. The
There is a difference between, on the one hand,
tolerating in the workplace conditions that will result
in a certain number of injuries or illnesses, and, on the
other, actively misleading the employees who have
already fallen victim to those risks of the workplace.
An employer's fraudulent concealment of diseases
already developed is not one of the risks an employee
should have to assume. Such intentionally-deceitful
action goes beyond the bargain struck by the
Subsequent Supreme Court precedents embrace and amplify the
reasoning in Millison, providing further guidance on how to distinguish
negligent or reckless culpability from intentional wrong. In Laidlow v.
Hariton Machinery Co., an employer removed a safety mechanism from a
piece of equipment but replaced it prior to inspections. 170 N.J. 602, 606 –09
(2002). The Court ultimately determined that the "conduct involving the
intentional, and deceptively timed, engaging and disengaging of safety
equipment . . . [satisfied the] conduct and context prongs." Van Dunk, 210 N.J. at 462 (citing Laidlow, 170 N.J. at 606–07). It is noteworthy that the
Court explicitly declined to adopt a per se rule that an employer's removal of a
safety device, or commission of an OSHA violation, constitutes intentional
wrong. Laidlow, 170 N.J. at 622–23. The critical circumstance in Laidlow
was that the periodic removal and replacement of the safety devices was timed
to deceive inspectors.
In Mull v. Zeta Consumer Products, the Court considered a situation
where the employer was aware of prior injuries and ignored citations for safet y
violations. 176 N.J. 385 (2003). The Court concluded the plaintiff satisfied
the conduct prong of the Millison test because OSHA had cited defendant for
several safety violations, the defendant had removed several safety devices
from the machine, another employee had sustained an injury operating the
same equipment, and the defendant was aware employees repeatedly
complained about safety concerns. Id. at 392.
The Court also found that the context prong was satisfied, noting "[t]he
Legislature would not have considered the removal of the winder's safety
devices, coupled with the employer's alleged knowledge of the machine's
dangerous condition due to prior accidents and employee complaints, in
addition to OSHA's prior violation notices, 'to constitute simple facts of
industrial life.'" Id. at 392–93 (quoting Laidlow, 170 N.J. at 622).
In a companion case, Crippen v. Central Jersey Concrete Pipe Co., the
Court likewise emphasized that OSHA had cited the employer for numerous
serious violations that had not been corrected before the plaintiff's fatal
accident. 176 N.J. 397, 401–03 (2003). The Court held "a jury reasonably
could conclude that defendant had knowledge that its deliberate failure to cure
the OSHA violations would result in a substantial certainty of injury or death
to one of its employees." Id. at 409.
The Court also determined that the plaintiff had satisfied the context
prong. The employer not only failed to remedy the safety hazards, contrary to
an OSHA order, but also deceived OSHA into believing the violations had
been corrected. Id. at 411. The Court noted that the defendant "effectively
precluded OSHA from carrying out its mandate to protect the life and health of
[defendant's] workers." Ibid. (alteration in original) (quoting Laidlow, 170 N.J. at 621). The Court concluded the Legislature "never intended such
conduct to constitute a part of everyday industrial life" nor would the
Legislature expect this conduct to fall within the workers' compensation bar.
Most recently, the Court addressed the intentional wrong exception in
Van Dunk. In that case, the Court concluded that neither the conduct nor
context prongs were satisfied. 210 N.J. at 454. Van Dunk had volunteered to
go into a deep trench to fix fabric that was being laid. Ibid. The supervisor
instructed him not to do so because of the risk the trench would collapse. Ibid.
Nonetheless, as problems persisted, the supervisor in a moment of frustration
told Van Dunk to enter the trench and fix the fabric. Ibid. The trench
collapsed, causing injury. Id. at 454–55.
During the OSHA investigation, the supervisor acknowledged he was
aware of the OSHA requirements and did not follow those standards. Id. at
455. That admission led OSHA to cite the company for a "willful" violation of
the safety standards. Ibid. The classification of the OSHA violation as willful
does not necessarily mean, however, that the conduct is intentional wrong for
purposes of the WCA. In determining that the conduct prong had not been
satisfied, the Court compared the nature of the wrong with the "more egregious
circumstances" of prior cases. Id. at 471. The Court explained:
What distinguishes Millison, Laidlow, Crippen, and
Mull from the present matter is that those cases all
involved the employer's affirmative action to remove a
safety device from a machine, prior OSHA citations,
deliberate deceit regarding the condition of the
workplace, machine, or, in the case of Millison, the
employee's medical condition, knowledge of prior
injury or accidents, and previous complaints from
The Court noted that the plaintiff's failure to satisfy the conduct prong
was sufficient to bar the lawsuit. The Court nonetheless proceeded to examine
the context prong, concluding that it also had not been established. The Court
The separate consideration required by the context
prong acts as an additional check against overcoming
the statutory bar to a common-law tort action. It was
added to the analysis to reinforce the strong legislative
preference for the workers' compensation remedy.
That preference is overcome only when it separately
can be shown to the court, as the gatekeeper policing
the Act's exclusivity requirement, that as a matter of
law an employee's injury and the circumstances in
which the injury is inflicted are "plainly beyond
anything the legislature could have contemplated as
entitling the employee to recover only under the
Compensation Act." In Millison, that threshold was
only met by virtue of the physicians' intentional
deception about the true status of employees' medical
conditions when returning the employees to the
hazardous worksite, not by the dangers present in the
workplace itself due to the known presence of
[Id. at 473–74 (emphasis omitted) (citations omitted).]
The Court then applied those principles to the facts presented in the case
before it, noting:
One cannot reasonably conclude that the type of
mistaken judgment by the employer and ensuing
employee accident that occurred on this construction
site was so far outside the bounds of industrial life as
never to be contemplated for inclusion in the Act's
exclusivity bar. While a single egregiously wrong act
by an employer might, in the proper circumstances,
satisfy the intentional-wrong standard, not every
intentional, or indeed willful violation of OSHA safety
requirements constitutes a wrong that is "plainly
beyond anything the legislature could have
contemplated as entitling the employee to recover only
under the Compensation Act."
[Id. at 474 (emphasis omitted) (quoting Millison, 101
N.J. at 179).]
We next apply the lessons from these Supreme Court cases to the facts
presented in the matter before us. Hocutt contends he satisfied the conduct
prong because he was injured "as a result of a repeated practice, known to the
defendant to be 'clearly a safety violation' and which constituted a 'serious'
OSHA violation." We disagree. We believe the present circumstances are
closer to the facts presented in Van Dunk than to Millison, Laidlow, Mull, and
Crippen because in the case before us there was no deception, no prior
accidents, and no prior complaints.
As the Court made clear in Laidlow, an OSHA violation standing alone
is not enough to establish intentional wrong. 170 N.J. at 622–23. Indeed, the
Court in Van Dunk concluded that the plaintiff failed to show intentional
wrong notwithstanding that the employer was cited for a violation that OSHA
classified as "willful." 210 N.J. at 455. 2
We turn then to Hocutt's contention that Minda's violative conduct rises
to the level of intentional wrong because it occurred repeatedly. We start by
acknowledging that Millison, Laidlow, Mull, and Crippen all involved
repetitive wrongful acts. Van Dunk, in contrast, involved an isolated and
spontaneous act of mistaken judgment by a supervisor. At first glance, that
distinction might help to explain why intentional wrong was found in Millison,
Laidlow, Mull, and Crippen but not in Van Dunk. On closer examination,
however, we believe that the Court did not focus on the number of times the
wrong act was repeated; rather, it focused on the aggravating circumstances in
which that repetition occurred.
In this case, Minda was cited by OSHA for a "serious" violation, not a
"willful" one as in Van Dunk.
The Court in Van Dunk cautioned that "a single egregiously wrong act
by an employer might, in the proper circumstances, satisfy the intentional -
wrong standard." 210 N.J. at 474. We do not interpret that observation to
mean that less egregious acts satisfy the standard if they are committed
repeatedly. Rather, we believe the Court was emphasizing that the
egregiousness of the wrong act is more important than the number of times it is
That is not to suggest that repetition is irrelevant in determining the level
of egregiousness. We must, however, examine the context in which those
repeated acts occurred. The Millison line of cases make clear that a wrong act
is more egregious when it is repeated in the face of efforts by government
regulators or others to put a stop to the practice. The wrong act is especially
egregious when deception is used to conceal the repetition.
Notably, in Millison, the repeated conduct was the deception committed
by company doctors who misled multiple employees about their medical
conditions. See Van Dunk, 210 N.J. at 474 (noting the intentional wrong
threshold in Millison "was only met by virtue of the physicians' intentional
deception about the true status of employees' medical conditions" (citing 101 N.J. at 181–83)).
In Laidlow, Mull, and Crippen, the employers refused to modify
wrongful behavior that was specifically identified and brought to their
attention. It was the employers' refusal to discontinue their wrongful practices
in the face of such notice, not the wrongful practices themselves, that elevated
their culpability to the level of intentional wrong.
We also need to consider how repetition of a wrong act should be
accounted for when determining whether death or injury is substantially
certain to result. The Court in Millison replaced the "deliberate intention"
standard with a "substantial certainty" test. 101 N.J. at 178. As we have
noted, this shift was meant to restrict, not expand, the circumstances when the
intentional wrong exception applies. We do not believe, therefore, that the
Court intended that a longstanding negligent or reckless practice should be
deemed an intentional wrong under the WCA simply because the risk posed by
the ongoing wrongful practice will eventually come to fruition under the law
Viewing the evidence in the light most favorable to Hocutt, we accept
that there was a recurring practice at Minda's warehouse to allow workers to
stand on moving forklifts. So far as the record before us shows, howev er, no
accidents or injuries had resulted from the unsafe practice until Will backed
into an I-beam with Hocutt aboard. The absence of proof of prior forklift
accidents at Minda's warehouse suggests the unfortunate accident in this case
was not a virtual certainty as demanded in Millison. 101 N.J. at 178.
The intentional wrong exception would significantly erode the
legislative preference for the workers' compensation remedy if all a plaintiff
has to show to invoke the exception is that the negligent or reckless conduct
was a de facto company practice. As the Court cautioned in Millison, the line
between negligent or reckless conduct and intentional wrong must be drawn
with caution. Otherwise, the workers' compensation remedy would be
"circumvented simply because a known risk later blossoms into reality." 101 N.J. at 178. Accordingly, we conclude that Hocutt failed to establish that
Minda knew that its actions were substantially certain to result in Hocutt's
injury or death.
It bears noting, moreover, that Hocutt alleged only negligence in his
complaint. He never filed a pleading alleging that Minda engaged in any
intentional act. We do not mean to suggest that the failure to allege intentional
conduct precludes a finding of intentional wrong for the purposes of the WCA
exemption. Nor would such a pleading automatically satisfy the Millison test.
The point, rather, is that the nature of the complaint is telling with respect to
the level of Minda's culpability.
In sum, we interpret the precedents to mean that an employer's
longstanding practice of violating an OSHA regulation does not automatically
rise to the level of intentional wrong. Rather the escalation to intentional
wrong generally occurs when the repeated conduct is committed in disregard
of prior OSHA citations or other warnings. In this case, there were no proofs
submitted showing that there were prior forklift-related accidents or injuries,
prior OSHA violations pertaining to forklift operations, a failure to abate such
OSHA violations, or prior complaints from workers about forklift
practices. Nor was any evidence presented that Minda took steps to conceal its
violative practice or otherwise deceive safety investigators.
Given the absence of evidence of prior accidents or OSHA citations, and
the absence of any evidence of concealment, fraud, or deception, we believe
that Minda's conduct was less egregious than the conduct in Millison, Laidlow,
Mull, and Crippen, and more comparable to the wrongful conduct in Van
Dunk. We therefore conclude that Hocutt has failed to establish the first prong
of the Millison test.
Our conclusion that Hocutt has failed to satisfy the conduct prong of the
Millison test means that he is barred from suing Minda. We nonetheless
follow the example the Supreme Court set in Van Dunk and proceed to address
the context prong. See 210 N.J. at 473 ("We have concluded that the conduct
prong is not satisfied in this matter. Although that renders the context prong
analysis unnecessary, we choose to address it."). In doing so, we recognize
that the same facts and circumstances that led us to conclude that the first
prong was not satisfied also militate against Hocutt's arguments with respect to
the second prong. See Laidlow, 170 N.J. at 606–07 (noting that the
deceptively timed engaging and disengaging of safety equipment to mislead
inspectors satisfied both the conduct and context prongs).
We conclude that Hocutt has failed to show that his injury and the
circumstances of its infliction were "more than a fact of life of industrial
employment." Id. at 617. Hocutt does not dispute that forklift accidents occur
in warehouses. As we have noted, the record in this case supports the
inference that Minda allowed workers to stand on forklifts to hasten the pace
with which pallets were loaded and unloaded and thus to enhance productivity
and profit. This unsafe practice thus appears to reflect a deliberate decision by
warehouse supervisors to expedite the movement of goods within the
warehouse. That circumstance, however, does not by itself transform the
company's negligence or recklessness into intentional wrong within the
meaning of the WCA. As we have noted, we believe the Court in Millison
abandoned the "deliberate intention" standard in recognition that many unsafe
workplace practices are deliberate in the sense that the employers made a
business decision to maximize speed and efficiency at the expense of worker
safety. We believe such decisions are a type of mistaken judgment that is a
fact of life in industrial workplaces.
We do not mean to condone such practices. It is, in our view, the
employer's response to an accident, regulatory citation, employee complaint, or
other explicit warning that provides an especially useful benchmark of its
culpability under both prongs of the Millison analytical framework. In this
instance, given the absence of prior accidents or employee complaints, and
especially given the absence of fraud, concealment, or deception, we do not
believe Minda's misconduct was plainly beyond anything the Legislature
intended the WCA to immunize. Laidlow, 170 N.J. at 617. In the final
analysis, Minda's mistaken judgment was, to borrow the Court's aphorism in
Van Dunk, "an exceptional wrong, not an intentional wrong." 210 N.J. at 472.