In Van Dunk v. Reckson Assoc. Realty Corp., 2012 N.J. LEXIS 678 (N.J. June 26, 2012), the New Jersey Supreme Court considered whether an employee’s personal injury suit against his employer following a trench collapse, for which the employer was fined by OSHA for a willful violation, could be maintained despite the exclusivity provisions of the New Jersey Workers’ Compensation Act. An OSHA investigation revealed that the employer violated safety requirements, and the project superintendent acknowledged that he was aware of the trench requirements and failed to follow them. While the New Jersey Supreme Court acknowledged that the employer’s conduct could be considered gross negligence by a reasonable fact finder, absent further proof, that was not enough to demonstrate that an “intentional wrong” was committed. Accordingly, the New Jersey Supreme Court held that the plaintiff’s claims against his employer were barred by the exclusivity provision of the New Jersey Workers’ Compensation Act.


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