Why can’t I sue my employer if I am injured at work by a co-employee?

Johns v. Wengerter. New Jersey Appellate Division decided April 1, 2019

Submitted by New Jersey Workers’ Compensation Lawyer, Jeffrey Hark.

In this unreported decision as a volunteer fireman was injured during a prank on duty when I co-employee placed a small firecracker in the firehouse toilet.

He thereafter sued his employer  in Superior Court and the city as a result. He did not file a Worker’s Compensation claim. The city argued that his claim was barred by the New Jersey Worker’s Compensation act and specifically N.J.S.A. 34:15 -1 through  146.

The court granted summary judgment dismissing the claim because it found that the coworkers prank was considered horse play under the Worker’s Compensation act. The court also found any lawsuit against the employer/city was barred pursuant to the Worker’s Compensation statute. The only exception to this rule is if the employers conduct vis-à-vis from another employee is intentionally committed pursuant to NJSA 34:15 – 8.

The key in this case is that the employee/coat fire men volunteer was not acting intentionally wrong but rather, based on the facts of the case and testimony specifically believed the conduct was a “prank”. There was no intent to purposefully harm the co-employee. There may have been in tent to perform the prank but the resulting harm was not intended. There’s a power court found that the judge at the trial level based his summary judgment decision upon competent credible evidential materials and the rationale was based upon those facts. The trial court found pursuant to New Jersey’s long-standing summary judgment standard of proof that there was no “genuine issue as to any material fact” as opposed to the inconsequential or in substantial fax at issue.

In addition the trial judge found that the absence of intentional harm requires the employee to bring his claim against the employer in the Worker’s Compensation Court setting. The Worker’s Compensation act entitled to an employee to recovery however the exclusive remedy for that employee who sustained injury in an accident arising out of and in the course of employment is the Worker’s Compensation statute

Jeffrey S. Hark, Esq.
609-471-1959. Cell
856-354-0050 Office