Several months after the accident, Alex's mother, Vicky Smith, filed a claim for workers' compensation death benefits. A judge determined after a hearing that Alex was a minor illegally employed by PFF at the time of his death and awarded his mother and father $25,000 each in death benefits.

Both Ms. Smith and PFF sought review by the workers' compensation board.

A three-judge panel of the board found that PFF was insured at the time of Alex's death and that the judge had properly awarded death benefits to his parents. Because Alex had been illegally employed, the board invoked the double indemnity provisions of New York State Workers' Compensation Law § 14-a(1) and increased the award to each parent to $50,000.

An appellate court upheld the board's determination.

Ms. Smith, individually and as administrator of her son's estate, sued Luke Park, Michael Park, Luke Park 2014 Special Business Trust, Michael Park and Luke Park d/b/a PFF, and Luke Park and Luke Park 214 Special Business Trust, d/b/a PFF. Her complaint asserted eight causes of action, five of which alleged negligence or gross negligence; one cause of action alleged malicious, wonton, and reckless behavior “beyond mere negligence;” one alleged wrongful death; and one asserted civil liability for criminal conduct.

Thereafter, Luke Park pleaded guilty to three misdemeanor criminal charges arising out of his son's death: endangering the welfare of a child (New York State Penal Law § 260.10(1)); prohibited employment of a minor (New York State Labor Law § 145); and allowing a minor to operate a large driven hoisting apparatus (New York State Labor Law §133(2)(p)).

Ms. Smith moved for summary judgment against Luke Park, individually, on her eighth cause of action, based on his criminal conduct. The defendants cross-moved for summary judgment, seeking dismissal of all causes of action in Ms. Smith's complaint on the ground that the workers' compensation death benefit was the exclusive remedy available to Ms. Smith.

The Court's Decision

The court denied Ms. Smith's motion for summary judgment against Luke Park and granted the defendants' motion for summary judgment, dismissing Ms. Smith's complaint in its entirety.

In its decision, the court explained that Ms. Smith could only maintain an independent cause of action outside of the workers' compensation system if one of two exceptions in Workers' Compensation Law §11 applied.

The court pointed out that the first of these exceptions was a failure by the employer to obtain workers' compensation insurance. That exception did not apply in this case, the court noted, because coverage had been determined to be applicable and, in fact, workers' compensation death benefits had been ordered.

The court then noted that the second exception to the exclusivity of the workers' compensation system was triggered when the employer committed an intentional tort against the employee. This exception, the court added, was applicable only if the employer's actions were directed toward a specific employee, with the intention of causing harm to that particular employee. “Negligence on the part of the employer, even gross negligence, or recklessness,” was insufficient to meet the standard for this intentional act exception, according to the court.

The court rejected Ms. Smith's argument that the misdemeanor convictions of Luke Park, by his plea, satisfied the intentional act exception. The court reasoned that the misdemeanors to which Luke Park had pleaded guilty did “not involve his direct action toward [Alex], with intention to harm [Alex].” At most, the court said, the misdemeanors established “gross negligence or recklessness on the part of Luke Park,” which was insufficient for the intentional tort exception to apply.

The court acknowledged that Luke Park had intentionally hired a then-14-year old to work at PFF, but said that “nothing in the elements of the misdemeanors, or the allocution of the pleas,” suggested an “affirmative action” by him to intentionally cause direct harm to Alex.

The court concluded that Ms. Smith's failure to show that Luke Park's actions fell within either exception to the workers' compensation law's exclusive remedy rule required it to deny Ms. Smith's motion for summary judgment on liability against Luke Park and grant the defendants' cross-motion.

The case is Smith v. Park, No. EF17-327 (N.Y. Sup. Ct. Cortland Co. June 4, 2019). Attorneys involved include: For Defendants: Stephen T. Helmer, Esq., Maureen E. Maney, Esq., Mackenzie Hughes LLP, Syracuse, New York. For Plaintiff: Aaron Zimmerman, Esq., Syracuse, New York.