New Jersey, like most states, requires that in order to prevail in a personal injury action the accused must be found at fault for causing the injury alleged. That is, unless you are an employee attempting to sue your employer. Say hello to the New Jersey Workers’ Compensation Act, legislation through which a “tit-for-tat” relationship is established between the employer and employee. The Act dictates employers must “insure” workers, regardless of fault, by providing eligible employees with authorized medical treatment, temporary disability payments, and permanent partial disability payments for job-related injuries or illnesses. N.J.S.A. 34:15-36. In consideration for this obligatory generosity, employees are barred from suing the employer in court for damages caused by work-related injuries. Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 161 (1985). As the N.J. Legislature so eloquently stated, the Act mandates “a surrender by the parties thereto of their rights to any other method, form or amount of compensation or determination thereof than as provided by this article.” N.J.S.A. 34:15-8. This is commonly known as the “exclusivity rule.”

What about bad actors?

As is often the case, there is an exception to the “exclusivity rule.” If an employer intentionally causes an employee’s injury, the employee may be able to sue the employer for all common law personal injury damages. See N.J.S.A.34:15-8. Under this provision, an employee may sue an employer for any behavior, act, or omission qualified as an “intentional wrong.” What is the definition of “intentional wrong,” you ask? Fortunately, the Supreme Court answered this inquiry in its typical veiled fashion: via provision of a two-prong test by which employer liability is examined using the lens of employer intent. First, did the employer possess substantial certainty that injury would occur; and second, did the circumstances resulting in the injury stray or greatly deviate from standard industry practice? Laidlow v. Hariton Machinery Co. Inc., 170 N.J. 602, 617 (2002). If so, the injured employee may assert what is commonly referred to as a “Laidlow claim.”

Hold your excitement and proceed with caution as this is not an easy bar to overcome. The employee must prove that the circumstances surrounding the injury were beyond the day-to-day risks and that performing the job as dictated by the employer would likely result in injury. In Crippen v. Cent. Jersey Concrete Pipe Co., 176 N.J. 397 (2003), the Court upheld summary judgment in the employer’s favor, finding the record did not establish an intentional wrong by either an intent to injure or knowingly exposing the employee to risk that was substantially or virtually certain to result in harm. Likewise, in Tomeo v.Thomas Whitesell Construction Co., Inc., 176 N.J. 366 (2003), the Court reversed a jury award to an injured employee, finding that although the employer removed a safety item, thereby committing an intentional wrong, there was insufficient proof as to the “virtual certainty” of harm to the employee by the removal of the safety device. More recently, in Van Dunk v. Reckson Assocs. Realty Corp., 210 N.J. 449 (2012) and Madkiff v. Frazier-Simplex, Inc., No. A-1328-15T1, 2017 N.J. Super. Unpub. LEXIS 419, at *1 (App. Div., decided Feb. 23, 2017) the courts ruled that despite knowingly allowing employees to place themselves in a potentially harmful situation, the respective plaintiffs could not pierce the workers’ compensation bar because plaintiff did not prove injury was virtually certain to occur under the circumstances presented. Put simply: without proof that the employer’s conduct was egregious, placing the employee in a position of virtually certain injury, employers are safe from suit.

Does this mean plaintiffs will be precluded from seeking recovery for the injuries sustained? Absolutely not! The Legislature appreciates the inclinations of the litigious. Simply because an employer is immune from liability, apart from those instances when the coveted Laidlow claim applies, does not mean the employee is precluded from pursuing liability against a negligent third party. “Where a third person is liable to the employee or his dependents for an injury or death, the existence of a right of compensation from the employer or insurance carrier under this statute shall not operate as a bar to the action of the employee or his dependents…” N.J.S.A. 34:15-40. Full speed ahead to litigation!

But, what about the employer-third party relationship?

Sorry, Charlie. Would it be ideal for those unfortunate third parties to circumvent the workers’ compensation bar via utilization of the joint tortfeasor liability arguments? Well, it depends on who you ask. If you ask the New Jersey’s Supreme Court or Legislature, the answer is “no.” “Because the employer cannot be a joint tortfeasor, it is not subject to the provisions of the Joint Tortfeasors Contribution Law, and a third-party tortfeasor may not obtain contribution from an employer, no matter what may be the comparative negligence of the third party and the employer.” Ramos v. Browning Ferris Indus., Inc., 103 N.J. 177, 184-85 (1986) (internal citations omitted).

Is all hope lost? Of course not. Remember class, there is always an exception. Indemnity! “As a general rule, a third party may recover on a theory of implied indemnity from an employer only when a special legal relationship exists between the employer and the third party, and the liability of the third party is vicarious.” Ramos, supra, 103 N.J. at 188. Indemnity will not be permitted carte-blanche, however. The Court reminds us that the Legislature expressly granted the employer the right to seek indemnification from third-parties for compensation to the injured employee and, therefore, it is “inconsistent with the employer’s statutory right of indemnification to require the employer, in the absence of an independent duty, to indemnify the third party, when the joint acts of both have caused the employee’s injuries.” Id. at 190. Yes, this means the indemnity sought must be expressly and unambiguously provided for within a contract. “…[A]n express contract does not disturb the delicate balance struck by the Legislature in the Workers’ Compensation Act. Nothing in the Act precludes an employer from assuming a contractual duty to indemnity a third party through an express agreement.” Id. at 191. In these circumstances, the willfully-contractually obligated employer will be party to the third-party litigation, up and through the time of trial, wherein the jury will be presented with issues of negligence and contractual indemnification simultaneously. With this, the preservation of bright line rules, such as the aforementioned, the Court mandates routine, consistent, and efficient litigation within the realm of employer-employee liability. With the occasional exception, of course…