The New Jersey Supreme Court has agreed to hear a case that may lead to an expansion, or contraction, of the “intentional wrong” exception to workers’ compensation immunity.

In Kenneth Van Dunk v. Reckson Associates Realty Corp., the plaintiff’s employer directed him to enter a trench that was not properly reinforced pursuant to OSHA regulations. The plaintiff volunteered to enter the trench to conduct work for the construction project, but his supervisor declined due to the lack of safety measures. The plaintiff’s supervisor later directed him to enter the trench, which collapsed, burying the plaintiff to his chest and causing multiple injuries. OSHA cited the employer with a “willful violation” as a result of the incident.

The trial court granted summary judgment to the employer pursuant to the Workers’ Compensation Act, and the plaintiff appealed. The Appellate Division reversed, determining that fact issues existed with respect to the intentional wrong exception to the Act. The Supreme Court granted certification to the employer.

In Van Dunk, the Appellate Division recognized that the standard for the intentional wrong exception to the workers’ compensation bar was first established in Millison v. E.I. du Pont de Nemours & Co. First, the employer must know that his actions are substantially certain to result in injury or death to the employee. Second, the resulting injury and the circumstances of its infliction on the worker must be more than a fact of life of industrial employment and plainly beyond anything the legislature intended the Workers’ Compensation Act to immunize.

The first element of the standard, involving the substantial certainty test, is known as the “conduct” prong and may represent a question of fact for the jury. The second, known as the “context” prong, is a threshold question of law for the court.

Van Dunk is significant because the case involves none of the extensive prior accident or OSHA deception allegations present in cases previously rejecting workers’ compensation immunity. While the facts of Van Dunk were certainly unfavorable to the employer, they were not as egregious or outrageous as prior cases interpreting the intentional wrong exception.

While the court in Van Dunk acknowledged that it was a close call, it determined that under the “totality of the circumstances,” a jury could find that the employer knew its actions were substantially certain to result in an injury or death to the plaintiff. The court took the willful violation citation by OSHA into account, but noted that it was not dispositive. The court pointed out that the employer’s own reluctance to enter the trench demonstrated that the employer knew the trench was dangerous and likely to cause serious harm. Further, in what could prove to be the most far-reaching aspect of its opinion, the court cited evidence that the employer’s conduct was motivated by profits over safety.

In its decision in Van Dunk, the New Jersey Supreme Court is likely to follow one of three paths. The court may find that the intentional wrong exception has been met by analogizing Van Dunk to cases with less egregious facts. The court may use Van Dunk as a vehicle to expand the Millison doctrine to all cases in which the employer is alleged to have sacrificed safety to maximize profits. Or, the court could halt the current trend of Millison cases as an unnecessary erosion of the workers’ compensation immunity.

The Supreme Court heard oral argument in Van Dunk on October 12, 2011.