Appreciation of risk of injury is insufficient to allow direct cause of action against employer.

The plaintiff’s employer was contracted to demolish a glass furnace, which required the use of jackhammers to break up a layer of material that lined the inside of the furnace and then putting the “boulders” into bins or onto metal rollers. The plaintiff and his co-workers complained to their foreman that the boulders were too heavy and that someone was going to get hurting lifting them, although the foreman ignored the warning. Thereafter, the plaintiff injured his shoulder lifting a heavy boulder and brought a direct action against his employer, alleging the employer’s conduct was sufficient to take the claim outside of the Workers’ Compensation Act. In dismissing the claim, the Appellate Division concluded that the evidence failed to support a subjective intent to injure or substantial certainty of harm. The mere appreciation of a risk of injury is insufficient as a matter of law.

_{Case Law Alerts, 3rd Quarter, July 2017}

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