Does a failure to train or supervise constitute a 'foreseeable certainty'?

A new case (Cong Su v. David’s Cookies, 2009 N.J. Super Lexis 2145 (Aug. 10, 2009), serves as illustration of the original purposes of the workers’ compensation system.
The concept of ‘workers’ compensation’ embodies a historic tradeoff: a compromise between the rights of employees to sue for negligent harm suffered at the hands of a co-worker or employer balanced against the need to deliver medical and wage continuation benefits to injured workers in a timely manner and regardless of fault. The workers’ compensation system is a compromise: employees can’t sue their employers for injuries they sustain at work, and in return, employee are guaranteed medical and wage-continuation benefits regardless of fault. There is an exception to this ‘compromise’ system: an employee can sue their employer for injuries sustained in the workplace if the employee can show that the injuries were ‘intentional.’ In other words, if the employee can show that the employer’s actions were ‘substantially certain’ to place the employee in harms way where injury could result, and the injury was plainly beyond anything the Legislature intended the Workers’ Compensation Act to immunize’ the employee can sue the employer in civil court (where, presumably, a trial by jury could yield an award for pain, personal injury, and economic damages far in excess of the ‘scheduled’ loss the claimant could recover in workers’ compensation court.
It is because of this delicate compromise of rights that cases where the employee claims to have been ‘intentionally injured’ are scrutinized so carefully. Cong Su is such a case.
The claimant in Cong Su operated a biscotti machine for her employer. While operating the machine, her hand came into contact with a sharp blade causing severe injuries.
To prevent a hand from entering the area where the blade was housed, a metal guard was on the machine. The metal guard was designed to keep the workers’ hands nine inches from the metal blade.
The claimant filed a civil suit against the maker of the machine and her employer. The employer (David’s Cookies) moved to dismiss her claims, arguing that the claimant’s remedy was through the New Jersey Workers’ Compensation Act.
In the civil suit, the claimant produced an expert who opined about the safety devices on the biscotti machine. According to the claimant’s expert, the metal guard protecting the operator’s hands was insufficient: a worker could easily slip their hand under the metal guard, through a one-and-one-half inch gap and into the cutting blade. Further, petitioner’s expert testified that the claimant was illiterate, and was unable to read any warning signs or messages (also, the claimant spoke no English). Finally, it was argued that the claimant injured her hand on the first day on the job, and was inadequately trained to operate the biscotti machine.
As to ‘foreseeability,’ claimant’s expert testified that “it was not only reasonably foreseeable but substantially certain that somebody would have been seriously injured by this machine.”
Despite this opinion, the Trial court dismissed the claimant’s action against her employer, finding that her sole remedy against her employer was through workers’ compensation proceedings.
The claimant appealed this decision.
The appellate court reviewed the trial testimony, including testimony that no other worker had ever been injured by the biscotti machine.
The Appellate Court ultimately ruled to affirm the Trial court. In its decision the appellate court found:

  • The employer could assume that a rational person would not stick their hand into a running electrical machine without first turning off the power;
    The failure to “train” the employee did not arise to a level of being ‘certain’ to bring about a specific harm;
    The failure to supervise the claimant also did not amount to a ‘certainty’ that physical harm would occur;
    The failure to warn an employee about the potential danger (despite the fact that the employee was illiterate and did not speak English) was not ‘substantially certain’ to cause the employee harm; and
    No OSHA citations had ever been received in regards to the machine, which militated in favor of the employer’s uncertainty of the machine’s safety (i.e., no citations means the employer could presume the machine safe).

The workers’ compensation claim was the sole remedy for this petitioner.

Greg Lois is the managing partner of LOIS LLC, a 19-attorney law firm dedicated to defending employers and carriers in New York and New Jersey workers' compensation claims. Greg is the author of a popular series of "Handbooks" on workers' compensation, and is the co-author of the 2016 Lexis-Nexis New Jersey Workers' Compensation Practice Guide. Greg can be reached at 201-880-7213 or glois@lois-llc.com