Employer's Intent to Injure Claim In New Jersey
In Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 161, 501 A.2d 505 (1985).the plaintiffs alleged two claims of intentional wrongs against their former employer:
(1) knowingly exposing employees to asbestos and not informing them of or protecting them from the risks of asbestos;
(2) fraudulently concealing from plaintiffs the results of company medical examinations revealing that they suffered from asbestos related diseases and sending them back to work and further asbestos exposure. Id. at 168-169, 501 A.2d 505.
The issue presented was "what level of risk exposure is so egregious as to constitute an 'intentional wrong.'" Id. at 177, 501 A.2d 505.
The Court held that the intentional wrong analysis requires examination of the employer's conduct and its context. Id. at 178-179, 501 A.2d 505.
An intentional wrong generally requires a deliberate intent to injure:
Even if the alleged conduct goes beyond aggravated negligence, and includes such elements as knowingly permitting a hazardous work condition to exist, knowingly ordering claimant to perform an extremely dangerous job, willfully failing to furnish a safe place to work, or even willfully and unlawfully violating a safety statute, this still falls short of the kind of actual intention to injure that robs the injury of accidental character.
Id. at 171, 501 A.2d 505 (quoting 2A A. Larson, the Law of Workmen's Compensation, 68.13 at 13-22 to 13-27 (1983) (footnotes omitted)); see also Bryan v. Jeffers, 103 N.J. Super. 522, 523- 524, 248 A.2d 129 (App.Div.1968), certif. denied, 53 N.J. 581, 252 A.2d 505 (1969).
While the Legislature did not intend the exception to be limited to acts of deliberate assault and battery, it is nonetheless narrowly construed. Id. at 177, 501 A.2d 505.
The Court ultimately concluded that:
The mere knowledge and appreciation of a risk--something short of substantial certainty--is not intent. the defendant who acts in the belief or consciousness that the act is causing an appreciable risk of harm to another may be negligent, and if the risk is great the conduct may be characterized as reckless or wanton, but it is not an intentional wrong. Id. at 177, 501 A.2d 505 (quoting W. Prosser and W. Keeton, the Law of Torts, 8 at 36 (5th ed.1984)).
Thus, an employer's deliberate intent to injure may be demonstrated by an actual intent to injure or by knowingly exposing the employee to a risk that is substantially or virtually certain to result in injury or harm. Id. at 178, 501 A.2d 505; Laidlow v. Hariton Machinery Co., 335 N.J. Super. 330, 338-339, 762 A.2d 311 (App.Div.2000) ; McGovern v. Resorts Intern. Hotel, 306 N.J. Super. 174, 179, 703 A.2d 364 (App.Div.1997) (quoting N.J. Mfrs. Ins. v. Joseph Oat Corp., 287 N.J. Super. 190, 196-197, 670 A.2d 1071 (1995)).
Applying this standard, the Millison Court dismissed count one of the complaint, noting that the employer's knowledge of the risks of disease and injury associated with asbestos exposure did not amount to the substantial certainty necessary to constitute an intentional wrong.
However, Millison held that plaintiffs had pled a valid cause of action for the aggravation of their existing asbestos related diseases due to the defendants' concealment of the conditions. Id. at 181-182, 501 A.2d 505.