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A NEW LOOK AT THE WORKER

By: William A. Dreier and M. Karen Thompson
March 2002

As we predicted in our recent New Jersey Law Journal article, “Lowering The Bar,” 164 N.J.L.J. 840 (2002), the New Jersey Supreme Court in Laidlow v. Hariton Machinery Co., Inc., ___ N.J. ___ (2002) has radically changed the playing field in many products liability cases. Until Laidlow, there was a serious question whether a worker’s employer who removed a safety guard, clearly exposing the operator to a substantial certainty of injury, was protected by the worker’s compensation defense. Pre-Laidlow law apparently placed the sole potential responsibility on the manufacturers or distributors of the machinery or equipment for not providing interlocks, better warnings, or other more effective protections. Not only did the employer have a shield against liability, it (or its insurer) even received reimbursement for the amount of worker’s compensation it had paid.

Laidlow changed the ground rules, but did not declare open season on employers. The worker’s compensation defense remains viable where the employer did not subject the worker to a substantial certainty of serious injury. The removal of a safety guard, however, is now subject to judicial scrutiny on a summary judgment motion in which the totality of facts will be reviewed. If reasonable minds could differ on the issue, it will go to the jury.

The fact that the machine had been operated without injury for many years without the guard was not disqualifying. The Court noted several “near miss” occurrences, and the certainty that if an employee’s hand was drawn into the in-running nip-point, there would most probably be a serious injury, as there was with Mr. Laidlow.

Employers may still remove guards where necessary to clean the machine, or where the work cannot be performed with the guard in place, or in other circumstances, provided that production scheduling or greed do not take precedence over employees’ safety. The Court noted that if the risk was a “simple fact of industrial life,” there could be no recovery. In Laidlow, the pinch-point guard was removed and only replaced for OSHA inspections. Under these circumstances, a jury question was presented. See also, Mabee v. Borden, Inc., 316 N.J. Super. 218 (App.Div. 1998), and Calderon v. Bollegraaf, 285 N.J. Super. 623, 637 (App.Div. 1995).

The Court did not address the issue of a co-defendant’s right to claim that the employer should also be liable by way of a cross-claim or third-party complaint under the Joint Tortfeasor Contribution Law, N.J.S.A. 2A:53A-1 et seq. Nor did the Court indicate whether a failure to install a retrofit safety device supplied by the manufacturer would be subject to the same rule. See Stephenson v. R.A. Jones & Co., Inc., 103 N.J. 194 (1986). Another issue which remains to be explored is the right of an employer’s compensation carrier to be reimbursed by its liability carrier.

One thing is now sure, however. A new party has been added to safety guard removal cases where there is a justifiable basis to claim that the removal by the employer created a substantial certainty that the operator would sustain serious injury.