New Jersey Court: Construction Worker Can Sue Employer

By | August 31, 2010

New Jersey workers’ compensation laws do not prevent a construction worker injured in a trench collapse from suing his employer, a state Appeals Court has ruled.

The lawsuit — which was originally dismissed by a lower, Superior Court — stems from a 2004 incident in Chatham and Madison that left Kenneth Van Dunk, an employee of excavation contractor James Construction Co., with serious injuries.

OSHA investigators found that the accident, in which a 20-foot-deep trench collapsed, was the result of a “willful violation” of federal safety regulations. Although work-related injuries are normally compensable through workers’ compensation insurance, Van Dunk and his wife sued James — as well as the project’s developer, Reckson Associates — on the legal theory that the accident constituted an “intentional wrong” and was therefore not precluded by workers’ compensation laws.

James Construction had been contracted to install a retention pond on the property — an endeavor that had been slowed by torrential downfalls during the excavation. Van Dunk, a laborer with James, was one of six individuals tasked with installing fabric along the bottom of the trench. During the process, a supervisor ordered Dunk to enter the trench — a significant violation of safety regulations in this particular case — which soon caved in, burying Van Dunk to his chest.

Investigators faulted James and the supervisor for failing to use safety devices and procedures that could have avoided injuries from the collapsing trench.

A Superior Court originally dismissed Van Dunk’s legal arguments — essentially, that he could sue his employer — but the latest ruling by the Appeals Court overturns that dismissal.

“Although the motion judge is accurate in stating that construction sites have a dangerous nature, that does not excuse the failure to use safety devices to alleviate the dangers and risks which were clearly known in this case,” wrote Appellate Judge Edwin H. Stern in his ruling.

The case has been remanded to the lower court.

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