Thought Leadership

Key Points:

• New Jersey Appellate Division, once again, turns away intentional injury claim in an attempt to overcome the workers’ compensation bar.
• To prove an intentional wrong under the Workers’ Compensation Act, a plaintiff must show that: (1) the employer knows its actions are substantially certain to result in injury or death to the employee; and that (2) the resulting injury and the circumstances of its infliction on the worker must be (a) more than a fact of life of industrial employment and (b) plainly beyond anything the Legislature intended the Workers’ Compensation Act to immunize.

The New Jersey Appellate Division has once again turned away an intentional injury claim in an attempt to overcome the workers’ compensation bar in Estate of Michael Alexander et al., v. Northeast Sweepers, et al., and Crisdel Construction, et al., 2025 WL 1711136 (N.J. App. Div. Jun 19, 2025). The case itself has an extensive record and a long procedural history, including two prior appeals, from a workplace injury going back to 2014. For purposes of this article, we have cited only the most relevant facts from the court’s analysis of the intentional injury issue.

On July 11, 2014, Mike Alexander, an employee of Crisdel Construction, was struck by a sweeper truck owned by Northeast Sweepers and operated by a co-employee of Crisdell, Christopher Hackett. Alexander was taken to a hospital and passed away approximately one month later. Crisdel was the general contractor and was responsible for milling and paving operations. Alexander had served as a milling foreman on the resurfacing project.

At the time of the accident, Alexander was wearing a reflective safety vest, hard hat, and a flashlight that had been turned on. The resurfacing work area consisted of two lanes of the New Jersey turnpike and the right shoulder. Crisdel had 12 pieces of machinery, including milling and paving equipment, two sweepers, and at least five dump trucks. 

The work area was illuminated by the lights from various vehicles and the moon, but there were no light towers. The sweeper trucks and milling machines had lights, which pointed several feet directly behind each vehicle. The sweeper trucks and milling machines also had backup alarms, but the milling and paving work generated a great deal of noise in the work area.

Workers at the scene had not reviewed a written traffic control plan before the accident. The workers had gathered at the outset of the night to discuss where they would be operating and what they would be doing that night. There were no flag persons or spotters.

Hackett had over 15,000 hours of experience in operating the sweeper, and Northeast considered him to be a “senior operator.” Before the accident, some workers, including Alexander, had discussed that Hackett was a “dangerous operator.” Approximately one week beforehand, Alexander had allegedly brought his concerns to the attention of the project manager. There were, however, no formal complaints regarding Hackett or his job performance.

It was Crisdel’s practice to assign a dump truck to each sweeper truck for efficiency and safety reasons. At the time of the accident, however, no dump truck was near Hackett’s sweeper. The accident occurred when Hackett drove his sweeper around a milling machine and struck Alexander. At his deposition, Hackett testified: “I think it was my error. I missed [Alexander] in my line of sight. And I’m responsible for a human life.”

OSHA conducted an investigation and determined that Crisdel had failed to “furnish employment and a place of employment which were free from recognized hazards that were causing or likely to cause death or serious physical harm to employees,” and failed to “establish a pre-planned traffic pattern for pedestrian and construction traffic . . . to ensure the safety of the employees working and walking within the construction work zone.” The “type of violation” was noted as “serious,” but not “willful” or “repeated.” 

In an amended complaint brought in their civil action related to Alexander’s death, plaintiffs, Estate of Mike Alexander, deceased, by Lorraine Alexander as Executrix of the Estate, and Lorraine Alexander, individually, alleged that Crisdel had engaged in conduct that constituted intentional wrongs that resulted in Alexander’s death. Alexander and his estate had received workers’ compensation benefits related to the accident. In Crisdel’s answer, it asserted the affirmative defense that the plaintiffs’ claims were barred by the New Jersey Workers’ Compensation Act. Crisdel then moved for summary judgment to dismiss the plaintiffs’ claims against it. 

The trial court granted summary judgment in favor of Crisdel and found that the plaintiffs had failed to produce evidence that would allow a reasonable trier of fact to conclude that Crisdel had committed an intentional wrong. The trial court also reasoned that the accident which caused Alexander’s death was in the nature of the type of accidents that occur in construction areas. The plaintiffs then appealed the order granting summary judgment to Crisdel. 

The Appellate Court first noted that the Workers’ Compensation Act reflects a historic trade-off whereby employees relinquish their right to pursue common-law remedies in exchange for automatic entitlement to certain, but reduced, benefits whenever they suffer injuries by accidents arising out of and in the course of employment. Rodriguez v. Shelbourne Spring, LLC, 327 A.3d 134, 140 (N.J. 2024) (quoting Millison v. E.I. Du Pont de Nemours & Co., 501 A.2d 505, 512 (N.J. 1985)). The only exception to the workers’ compensation bar is for injuries caused by intentional wrongs. Richter v. Oakland Bd. of Educ., 252 A.3d 161, 178-179 (N.J. 2021) (quoting Laidlow v. Hariton Mach. Co., 790 A.2d 884, 894 (N.J. 2002)).

To prove an intentional wrong under the Workers’ Compensation Act, a plaintiff must show that: (1) the employer must know its actions are substantially certain to result in injury or death to the employee; and that (2) the resulting injury and the circumstances of its infliction on the worker must be (a) more than a fact of life of industrial employment and (b) plainly beyond anything the Legislature intended the Workers’ Compensation Act to immunize. Id. The court noted that the New Jersey Supreme Court has explained that “the ‘substantial certainty' test is still a high standard to meet: to avoid allowing employees to circumvent the Act, courts must demand a virtual certainty before employees can proceed under the intentional wrong exception to sue their employer in tort." Van Dunk v. Reckson Assocs. Realty Corp., 45 A.3d 965, 978 (N.J. 2012) (quoting Millison, 501 A.2d at 514).

In this appeal, the plaintiffs identified six specific areas of safety protocols or devices that were allegedly known to and ignored by Crisdel on the night of the accident: (1) work lighting, (2) audible backup alarms, (3) properly functioning mirrors, (4) dedicated dump trucks, (5) the use of spotters, and (6) a written traffic control plan. The plaintiffs also argued that Crisdel ignored the complaints concerning Hackett’s dangerous operation of the sweeper and failed to learn from prior incidents. 

In their detailed analysis of each allegation, the court noted that none of the evidence pointed to by the plaintiffs constituted evidence of an intentional wrong within the meaning of the Act. The court also noted there were no formal complaints regarding Hackett’s job performance and that he was not previously involved in any accidents while operating a sweeper. Concerning the OSHA violations, the court noted that there were no prior OSHA citations at the New Jersey Turnpike job site and that the subsequent OSHA violation cited Crisdel for “serious” issues but not “willful” violations. Moreover, the New Jersey Supreme Court has explained that OSHA safety violations do not, on their own, establish the virtual certainty required to prove an intentional wrong. Van Dunk, 45 A.3d at 978. See also Laidlow, 790 A.2d at 898.

This case illustrates the constant barrage of intentional injury claims being asserted against the workers’ compensation bar. In a construction scenario such as this, the two most common means of attack, lately, are whether the employer had safety training, programs, and/or protocols prior to a workplace accident, and whether there was a significant violation in any subsequent OSHA investigation. All employers are urged to routinely update their safety programs to make sure that they, at a minimum, meet the OSHA standards and, preferably, go beyond those standards. Further, employers should designate employee health and safety compliance as a top priority, not just for the personnel directly involved in the department, but for every employee in the organization, to prevent a workers’ compensation liability. 

Bob is a member of the Workers’ Compensation Department. He can be reached at (856) 414-6009 or RJFitzgerald@mdwcg.com. 

_{Defense Digest, Vol. 31, No. 3, September 2025, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2025 Marshall Dennehey. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}