# Crippen v. Central Jersey Concrete Pipe Co./Concurrence Verniero

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VERNIERO, J., concurring.
This is a close case. I join the Court's opinion largely based on plaintiff's allegation that the defendant employer attempted to deceive federal regulators into believing that it had abated certain safety violations prior to the date of Harold Crippen's work-related death. I write separately to express my view that absent that allegation, plaintiff would not be entitled to proceed in the Law Division.
The New Jersey Workers' Compensation Act, N.J.S.A. 34:15-1 to -128 (the Act), seeks to protect injured workers from becoming mired in costly and protracted litigation that could delay payment of their claims. It achieves that aim by providing within its purview “the exclusive remedy for claims against an employer when a worker is injured on the job, except for those injuries that have resulted from the employer's ‘intentional wrong.’ ” Mull v. Zeta Consumer Prods., 176 N.J. 385, 387, 823 A.2d 782, 783 (2003) (quoting N.J.S.A. 34:15-8). In so doing, the Act embodies “an historic ‘trade-off’ whereby employees relinquish their right to pursue common-law remedies in exchange for prompt and automatic [p412] entitlement to benefits for work-related injuries.” Laidlow v. Hariton Machinery Co., 170 N.J. 602, 605, 790 A.2d 884 (2002).
To vault the exclusivity bar, an injured worker must satisfy two conditions first articulated in Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 161, 501 A.2d 505 (1985). First, he or she must allege sufficient facts demonstrating that an employer knew that its actions were “substantially certain to result in injury or death to the employee[.]” Laidlow, supra, 170 N.J. at 617, 790 A.2d 884. Second, the worker must show that the circumstances surrounding the injury constituted “more than a fact of life of industrial employment” and that they were “plainly beyond anything the Legislature intended the Workers' Compensation Act to immunize.” Ibid.
When evaluating whether a claimant has satisfied those two conditions, we consider “the totality of the facts contained in the record[.]” Id. at 623, 790 A.2d 884. We have emphasized that an employer's mere knowledge that the workplace is dangerous does not qualify as an intentional wrong. “[T]he 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.” Millison, supra, 101 N.J. at 178, 501 A.2d 505.
Here, the Occupational Safety and Health Administration (OSHA) previously cited defendant for certain safety violations described by the majority. Those violations required the employer to design and implement a compliance-abatement plan. According to the Appellate Division's initial opinion, defendant's safety manager submitted that plan to OSHA, “stat-ing it would be implemented on March 13, 1997[,]” well over a year before Crippen's death. Crippen v. Cent. Jersey Concrete Pipe Co., 342 N.J.Super. 65, 71, 775 A.2d 716 (2001). The court described defendant's subsequent failure to implement the plan as an “attempt[ ][p413] to mislead OSHA into believing that the violations had been abated[.]” Id. at 74, 775 A.2d 716.
Accepting that description, I conclude that plaintiff's allegations create at least a question of material fact to be resolved by a jury. If deception is proved, a jury could decide based on the totality of circumstances “that [defendant] evidenced an awareness of the ‘virtual’ certainty of injury [that could arise] from the [unabated violations].” Laidlow, supra, 170 N.J. at 621, 790 A.2d 884. In other words, plaintiff's allegations of deception, coupled with the other factors discussed by the majority, minimally are sufficient to entitle plaintiff to proceed in the Law Division.
Absent deception, however, this case would fall short of clearing the Act's exclusivity bar. Without that element, the circumstances here would be less com-pelling than those found in Mull, supra, in which we concluded that a lack of deception was not fatal to the worker's Law Division claim because of other factors unique to that case. 176 N.J. at 391, 823 A.2d at 786. I urge judges to keep faith with the Act by continuing to apply with rigor both prongs of the Millison analysis. Doing so in this appeal, I join in Justice Coleman's persuasive opinion.
Justice LaVECCHIA joins in this opinion.