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

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ZAZZALI, J., concurring.
I concur in the judgment of the Court. I write separately from Justice Coleman's well-reasoned opinion to emphasize that an employer may be liable in intentional tort for a failure to act and to recommend abandonment of the “context prong” enunciated in Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 161, 179, 501 A.2d 505 (1985).
The exclusive remedy provision of the Workers' Compensation Act preserves the right of employees subject to the Act to hold an employer liable at common law for its intentional wrongs. N.J.S.A. 34:15-8. Over time, our courts have redefined the contours of that exception, expanding it to include not only those [p414] cases in which an employer manifests a “deliberate intention” to injure, Bryan v. Jeffers, 103 N.J.Super. 522, 524, 248 A.2d 129 (App.Div.1968), certif. denied, 53 N.J. 581, 252 A.2d 157 (1969), but also those in which irrespective of the presence or absence of a subjective intent to injure, an employer knows that harm to an employee is “substantially certain” to result from its conduct. Laidlow v. Hariton Mach. Co., Inc., 170 N.J. 602, 614, 790 A.2d 884 (2002); Millison, supra, 101 N.J. at 174, 501 A.2d 505. As we noted in Laidlow, supra, the Restatement (Second) of Torts provides, “[i]f the actor knows that the consequences are certain, or substantially certain, to result from his act, and still goes ahead he is treated by the law as if he had in fact desired to pro-duce the result.” 170 N.J. at 613, 790 A.2d 884 (citing Restatement (Second) of Torts § 8A (1965)).
The adoption of a substantial certainty standard led this Court in Laidlow to require proof to a jury that an employer “acted with knowledge that it was substantially certain that a worker would suffer injury” as a prerequisite to employer liability in intentional tort. Id. at 623, 790 A.2d 884. Naturally, evidence that the employer's act actually caused injury also must be present. See Prosser and Keeton on Torts § 41 (5th ed. 1984)(“An essential element of the plaintiff's cause of action for negligence, or for that matter any other tort, is that there be some reasonable connection between the act or omission of the defendant and the damage which the plaintiff has suffered.”). Proof of an employer's intentional tort therefore requires evidence that an employer (1) acted, (2) with knowledge that a substantial certainty of harm to an employee would result, and (3) caused the anticipated injury. In the absence of competent evidence supporting each of those three elements, an employer's motion for summary judgment will succeed. See Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540, 666 A.2d 146 (1995).
Defendant argues that “mere toleration of a danger-ous condition” falls short of an “intentional wrong.” Ante at 406,823 A.2d at 794. I write to emphasize that consistent with the majority's [p415] decision to predicate liability in part on defendant's “deliberate failure” to remedy OSHA violations, the requirement that an employer “act” to be liable in intentional tort may be satisfied by an omission. Ante at 409, 823 A.2d at 797. See Travis v. Dreis & Krump Mfg. Co., 453 Mich. 149, 551 N.W.2d 132, 141 (1996)(interpreting phrase “deliberate act of the em-ployer” in M.C.L. § 418.131(1); M.S.A. § 17.237(131)(1) “to encompass both commissions and omissions” because “it is more common to have a situation in which an omission leads to injury at the workplace, such as a failure to remedy a dangerous condition”); Prosser and Keeton, supra, § 8 (“One prerequisite of liability is that the defendant act (or fail to act when there is a legal duty to act).”).
In Laidlow, we restated this Court's conclusion in Millison that “mere toleration of workplace hazards ‘will come up short’ of substantial certainty.” Laidlow, supra, 170 N.J. at 616, 790 A.2d 884 (quoting Millison, 101 N.J. at 179, 501 A.2d 505) (emphasis added). Whether a known substantial certainty of harm exists, however, depends only on the degree of risk of which the employer is aware, and not on whether that employer has taken affirmative steps to expose an employee to that risk. See Millison, supra, 101 N.J. at 177, 501 A.2d 505 (“The essential question therefore becomes what level of risk-exposure is so egregious as to constitute an ‘intentional wrong.’ ”). Liability for failure to remedy a workplace condition that an employer knows is substantially certain to cause harm can meet the “act” requirement of intentional tort, regardless of whether that conduct may be characterized as “mere toleration.”
Although I agree with the majority that the context prong does not provide an appropriate basis for summary judgment in this appeal, I write also to recommend that the Court abandon use of the context prong in all cases in which an employer seeks summary judgment under N.J.S.A. 34:15-8. Pursuant to the context prong, a trial court may disregard evi-dence that an employer knowingly exposed an em-ployee to a substantial certainty of harm simply be-cause the trial court considers such exposure a “fact of [p416] life of industrial employment.” Millison, supra, 101 N.J. at 179, 501 A.2d 505. Knowing expo-sure of an employee to almost certain harm should never be dismissed as a “fact of life.” Such actions by an employer invariably constitute a gross violation of the workers' compensation bargain. See id. at 174, 501 A.2d 505 (describing Workers' Compensation Act as “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 an in the course of employment”) (emphasis added). Although tragic accidental deaths and injuries are a fact of life in the workplace, knowledge that death and serious injury are substantially certain to occur should never be a commonplace.
The context prong also mandates that a trial court consider whether exposure of an employee to a known substantial certainty of harm is “plainly beyond anything that the legislature could have contemplated as entitling the employee to recover only under the Compensation Act.” Id. at 179, 501 A.2d 505. I note, however, that N.J.S.A. 34:15-8 does not distinguish among intentional wrongs. It simply states that “[i]f 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.” N.J.S.A. 34:15-8 (emphasis added). The plain language of that statute neither invites nor permits a trial court to consider whether a particular intentional wrong is to be immunized. Instead, it categorically exempts all intentional wrongs from its restriction of remedy language.
I recognize that, as one pair of commentators has noted, the context prong “provides a check on runa-way liability.” William A. Dreier and Lawrence N. Lavigne, Untying the Laidlow Knot: Shifting Liability from Machine Manufacturers to Employers that Continue to Use Machines That Have Known Design Defects, 170 N.J.L.J. 810, 813 (Dec. 9, 2002). I believe, however, that that [p417] gatekeeping function is adequately discharged when the trial court inquires on an employer's motion for summary judgment whether a jury reasonably might conclude that an employer acted to injure an employee with knowledge that harm was substantially certain to occur. As the majority notes, “the same facts and circumstances generally will be relevant” to both the conduct and context prongs of Millison. Ante at 408,823 A.2d at 796. Accordingly, asking whether employer conduct is a “fact of life” that the Legislature intended to immunize is superfluous to the only inquiry that N.J.S.A. 34:15-8 requires, namely whether an intentional wrong has occurred. This Court should not permit a trial court to bar an otherwise actionable intentional tort under the pretext that N.J.S.A. 34:15-8 compels that result. For the above reasons, I would abandon the context prong.