N.J. Supreme Court Waters Down Intoxication Defense

Saturday, April 21, 2007 | 0

Unlike civil actions for negligence, which are derived from the development of the common law for torts, the administration of workers' compensation benefits in New Jersey, like the vast majority of states, is established by statute (the Workers' Compensation Act).

Under the Act, the employer has several defenses to the payment of workers' compensation benefits, such as if the worker's injury was self-inflicted, or if the injury occurred because the worker willfully failed to use protective equipment required by the employer.

The Act also provides a defense to employers if the worker's injury occurred as the result of intoxication:

When employer and employee shall by agreement, either express or implied, as hereinafter provided, accept the provisions of this article compensation for personal injuries to, or for the death of, such employee by accident arising out of and in the course of employment shall be made by the employer without regard to the negligence of the employer, ... in all cases except when the injury or death is intentionally self-inflicted, or when intoxication or the unlawful use of controlled dangerous substances as defined in the "New Jersey Controlled Dangerous Substances Act," ... is the natural and proximate cause of injury or death ...

In the recent case of Tlumac v. High Bridge Stone, 187 N.J. 567 (March 20, 2006), the New Jersey Supreme Court had an opportunity re-examine the intoxication defense. The facts in Tlumac are particularly egregious.

In February 2004, the petitioner, an experienced tractor-trailer driver, logged 230 hours after working 12 days in a row. During this time, the petitioner's wife sustained an injury, causing him to lose further sleep due to his added family responsibilities.

On Feb. 29, 2004, the petitioner consumed an unknown quantity of beer while working for a second straight day on his roof. His wife later testified he normally consumed 10 beers on a weekend day. After completing the work on the roof and consuming another beer, the petitioner went to bed around 8 p.m. without eating dinner.

The petitioner arrived at work several hours later at 3:15 a.m. where he was scheduled to deliver approximately 77,000 pounds of Belgian block to Virginia. The petitioner departed around 3:30 a.m. and traveled approximately 30 miles south on Route 31. The last thing the petitioner remembered prior to the accident was driving through a green light and approaching a turn to pass over a bridge.

The police report noted that the tractor-trailer traveled 180 feet off the road, contacted the curb for 80 feet, jumped the curb and traveled 66 feet on the dirt shoulder, hit and rubbed against the guardrail for another 247 feet, struck the front bumper of a parked truck, and hit a utility pole before resting against a tree. The responding police officer detected an odor of alcohol, and the petitioner admitted he had been drinking the night before. The petitioner was taken to the hospital for multiple injuries at which time blood samples were taken.

In a subsequent motion for medical and temporary benefits, the respondent presented unrefuted expert testimony that, based on blood samples, the petitioner's blood alcohol level at the time of the accident was between .10 and .18 and that intoxication was the primary cause of the accident.

However, the judge granted benefits stating, "I find no way to refute petitioner's statement that he fell asleep at the wheel. While this may have been caused by the amount of alcohol in his body, there is no way to prove this."

The judge also stated that, given all of the other factors in the petitioner's life, such as the lack of sleep, the roof work and the stress of the petitioner's home life, even someone who was not intoxicated could have fallen asleep or even just "drifted off" long enough to lose control.

The Appellate Division affirmed, and the respondent appealed to the Supreme Court.

The Supreme Court started its analysis by examining several prior cases interpreting the intoxication defense. The court noted that the case law has repeatedly interpreted the intoxication defense to mean that the worker's intoxication must be the "sole cause" of the injury:

" ... that in order to defeat recovery the employer must show by the greater weight of the evidence that the employee's injury was produced solely by his intoxication ... If the Legislature intended intoxication as a concurrent or contributory cause of an injury to effect a deprivation of the benefits of the statute it would have been a simple matter to have said so."

Kulinka v. Flockhart Foundry Co., 9 N.J. Super. 495, 505 (Law Div. 1950).

In affirming the award of compensation benefits, the court also noted that this interpretation is in keeping with the remedial purpose of the Act -- to make benefits readily and broadly available to injured workers through a noncomplicated process.

The court went further:

"We recognize, however, that the intent of the Legislature when it enacted the Workers' Compensation Act in 1911 -- a time before the mass ownership of automobiles -- may no longer comport with current policies aimed at deterring the dangers of drinking and driving. Nevertheless, any change in that interpretation must come from the Legislature."

The court's decision is troubling on several levels.

First, the requirement that the employer prove that intoxication was the sole cause of any work injury renders the defense almost a legal nullity. Indeed, this author could locate only one reported case where the intoxication defense was sustained, Anslinger v. Carter Wallace, 124 N.J. Super. 184 (App. Div. 1973) (dismissal of dependency claim petition affirmed where the worker was killed after driving his vehicle into and under the rear of a tractor-trailer truck and where the decedent's blood alcohol level was measured at .312%).

Second, the court awarded benefits based on the petitioner's admittedly clouded factual recollection of the accident, even though the respondent's expert evidence, proving that the petitioner's intoxication caused the accident, appeared to be undisputed. The often-recited principal that the Act should be liberally construed so as to provide benefits to as many workers as possible should not negate undisputed expert evidence proving a specific, statutory defense provided for under the very same Act.

Third, the simple purpose of the intoxication defense is not to reward bad behavior -- in this case extremely reckless behavior -- on the part of the worker. Given the extremely violent nature of the crash, the petitioner is lucky he did not kill himself and everyone else on the road with him at the time of the accident.

Rather than deterring this type of behavior, as has been attempted by decades of tougher drunk-driving legislation, the court felt compelled to award compensation benefits. Arguably, public policy demands a different result.

Hopefully, now that the New Jersey Supreme Court has issued its decision, the Legislature will decide to update and reformulate a defense that was first promulgated some 95 years ago and, with the dramatic increases in population and automobiles, has more significance now than ever.

Robert J. Fitzgerald is an associate in the Cherry Hill, N.J., office of Marshall, Dennehey, Warner, Coleman & Goggin. This column first appeared in the law firm's Defense Digest. The law firm's Web site is http://www.marshalldennehey.com.

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