delivered the opinion of the Court.
New Jersey’s Workers’ Compensation Act (the Act), N.J.S.A. 34:15-1 to -128.5, provides a prompt and efficient remedy for an employee’s claim against an employer for a workplace injury. The Legislature made the statutory workers’ compensation remedy its preferred mechanism for providing compensation to injured workers. The Act’s remedy is exclusive, except for injuries that result from an employer’s “intentional wrong”; for those, an injured employee is permitted to maintain a common-law tort action against the employer. N.J.S.A. 34:15-8. A series of eases from this Court have addressed what constitutes an intentional wrong that permits relief from the statutory bar against a common-law action for a workplace injury. As the ease law demonstrates, an employer’s deliberate intent to injure is not the sine qua non; instead a substantial certainty that injury or death will result must be demonstrated. This appeal tests the limits of that formidable standard.
Plaintiff Kenneth Van Dunk and his wife filed this suit in the Law Division after he suffered serious injuries in a trench collapse
at a construction site workplace.
1
Following discovery, the trial court granted summary judgment to the employer defendants. Based on its assessment of the totality of circumstances, the court concluded that plaintiff did not demonstrate an intentional wrong within the meaning of the Act, notwithstanding that the employer was issued a federal Occupational Safety and Health Administration (OSHA) “willful violation” citation as a result of the incident. The Appellate Division reversed the trial court’s grant of summary judgment to the employer, and returned the matter to the trial court.
Van Dunk v. Reckson Assocs. Realty Corp.,
415
N.J.Super.
490, 505,
No doubt, the circumstances in this matter are tragic. Although the proofs plaintiff advances could support a finding of gross negligence, that finding is insufficient to circumvent the statutory bar and maintain an action against plaintiffs employer. Based on the strong legislative preference for the workers’ compensation remedy and an intentional-wrong standard that even an employer’s recklessness and gross negligence fails to satisfy, we hold that this matter falls short of demonstrating that an intentional wrong creating substantial certainty of bodily injury or death occurred. The judgment of the Appellate Division is reversed. The workers’ compensation statutory bar against a common-law tort action prevails and precludes this action.
I.
In August 2004, when his workplace injuries occurred, Van Dunk was working for defendant James Construction Company, Inc. (James) as a union-provided “as-needed” laborer on a construction project at Giralda Farms in the Township of Chatham and Borough of Madison. Defendants Reckson Associates Com pany, Inc. and Reekson Construction, LLC (together Reekson) had contracted with James for James to perform site-preparation work. James, in turn, appointed Glenn Key as the project superintendent. Key also served as the OSHA-required on-site “competent person” for the project as of August 1, 2004. 2 Prior to this workplace incident, Key had been an employee of James for thirty-two years and had experience as a previous project superintendent. For the Giralda Farms project, he reported directly to James’s president, J.D. Potash, and was responsible for planning and executing the construction work and for meeting budgets and deadlines.
On August 10, 2004, at the Giralda Farms construction site, James was excavating a trench to relocate a dewatering sump in a retention pond. Prior to that date, the project had been plagued by thunderstorms and heavy rain that had required work to be redone, without additional compensation to James. Rain was expected again later that day; as a result, Potash and Key sought to complete the sump relocation before the rain arrived. The sump relocation involved the following steps: digging a sloped trench; laying down first a filter fabric and then a layer of stone; placing a pipe on the stone; placing more stone on the sides and top of the pipe; and then wrapping additional filter fabric around the stone. As the trench excavation continued and its slope reached a depth of greater than five feet, Van Dunk and other workers began laying down the filter fabric from locations outside the trench. Eventually, the deepest part of the trench reached a depth of eighteen to twenty feet.
OSHA safety regulations mandate that workers cannot enter a trench that is deeper than five feet if protective systems are not in place. 29
C.F.R.
§ 1926.652(a). A protective system is defined as “a method of protecting employees from cave-ins, from material that could fall or roll from an excavation face or into an excavation, or
Key and his workers experienced difficulty when laying down the filter fabric from their locations outside the trench. Despite their efforts, the fabric would not lay flat. It became tangled and a crease developed. Van Dunk volunteered to go into the trench to straighten the filter fabric, but Key told him not to do so because of the possible risks attributable to the ground conditions. 3 However, as problems persisted with laying the filter fabric, in what Key later described as a moment of “frustration” he told 4 Van Dunk to go in and straighten the fabric. Van Dunk went into the trench, walked to the deeper end, and began adjusting the fabric. He was in the trench for less than five minutes when a loud noise was heard and a trench wall caved in, burying Van Dunk to his chest. He sustained multiple serious injuries. He was rescued by coworkers who immediately responded to help him, some of whom jumped in to dig him out, and by police and emergency personnel.
OSHA investigators also arrived on the scene that day to investigate the incident and to interview Key. Their report states that the trench was approximately twenty feet in depth at its deepest point. Per OSHA standards, a registered professional engineer must design sloping or benching for a trench that is more than twenty feet deep. 29 C.F.R. § 1926 subpt. P, app. B, tbl.B-1. Key recognized that the trench’s depth placed it “at the cusp” of requiring such special safety design treatment.
Importantly for purposes of this matter, Key readily acknowledged to OSHA that, as the competent person on-site, he knew the OSHA requirements and did not follow the standard for using a protective box for the trench’s depth and category of soil type, notwithstanding that such a box was on-site. Also, there was no dispute that the sloping that was performed did not satisfy OSHA requirements; in his deposition Key explained that he lacked room to cut back the slopes more than had been accomplished. Those admissions led OSHA to find, in an investigative report, that the “non-compliance [with OSHA standards] was not an accident or negligence.” As a result, the OSHA report concluded that James committed a willful violation and assessed a fine of $49,000. James did not contest the violation, but rather entered into negotiations with OSHA over the amount of the fine, ultimately agreeing to pay $24,500.
On August 8, 2006, Van Dunk and his wife filed the instant action against Reckson and James, among others, for damages arising out of his injuries from the trench
The plaintiff was out there. There would appear to be some frustration. Plaintiff jumps into the trench. The trench collapses five minutes later. In light of the totality of the circumstances, notwithstanding what occurred with the OSHA findings, this Court is satisfied that the plaintiff has not met [his] burden.
On appeal, the Appellate Division reversed, holding that plaintiff had produced sufficient evidence to show that defendants committed an intentional wrong, rendering plaintiffs suit free of the Act’s exclusivity bar.
See Van Dunk, supra,
415
N.J.Super.
at 505,
defendant had knowledge that allowing its employees to enter the trench without any safety device could lead to injury or death. Moreover, Key’s acknowledgment • that there was an accumulation of water in the bottom of the trench, indicating that moisture was weeping from the soil, that there was cracking on the bank of the trench, coupled with his knowledge that Type C soil, the kind of soil he was working with, was the least stable, all show, in the totality of the circumstances, that he knew the trench was unstable and that it could fail.
[Id. at 502-03,2 A.3d 456 .]
Although not finding the OSHA violation conclusive, the panel stated that the motion court “did not give significant credit to the OSHA citation or the fact that defendant could have made the trench more stable if it had used protective devices.”
Id.
at 504,
James’s petition for certification was granted on January 27, 2011. 205
N.J.
81,
II.
Plaintiff maintains that he can overcome the Act’s bar against independent tort recovery. Although he concedes that the issuance of an OSHA willful violation citation does not automatically establish an intentional wrong under the Act, he argues that many of the elements underlying a willful violation also support the finding of an intentional wrong. Plaintiff places great emphasis on Key’s role as the on-site competent person, which placed Key in a unique position to assess the danger posed to plaintiff when he entered the trench. Based on a litany of risk factors, plaintiff asserts that Key knew that a trench collapse could happen, even if he did not know precisely when it would happen. Plaintiff further argues that Key and defendants were inappropriately motivated by their desire to keep costs down and finish the work quickly at the expense of employee safety.
According to plaintiff, Key’s decision not to employ protective systems was a deliberate disregard of OSHA regulations that placed employees in a dangerous position. Thus, plaintiff asserts that his injury was more than an incidental risk of the job, pointing out that the Act is “not intended by the Legislature to protect and encourage the knowing and purposeful disobedience of the law.” He analogizes Key’s decision not to utilize protective devices to circumstances in which the Court has found an intentional wrong where employers deliberately remove safety devices from equipment. Lastly, plaintiff contends that he does not need to demonstrate a pattern of past victims or close calls to establish an intentional wrong—a single event is sufficient.
Defendant James, on the other hand, argues that this Court’s past decisions finding an intentional wrong in combination with an OSHA violation involved situations in which employers intentionally defrauded OSHA, which did not occur here. James further expresses concern that the Appellate Division’s decision expands too far the ability to overcome the Act’s exclusive remedy. According to defendant, the Appellate Division’s decision will allow for injured parties to pursue independent tort actions based on the possibility of injury, rather than a near certainty. It also points out that a willful violation under OSHA should not serve as the basis for finding an intentional wrong—a willful violation can be predicated on an intentional disregard of OSHA regulations or plain indifference, and there is no way to know which of those standards relates to a particular willful violation.
III.
Originally enacted in 1911 in response to perceived inequities in the administration of common-law remedies for employees’ workplace injuries, the New Jersey Workers’ Compensation Act accomplished a “historic trade-off whereby employees relinquished their right to pursue common-law remedies in exchange for automatic entitlement to certain, but reduced, benefits whenever they
suffered injuries by accident arising out of and in the course of employment.”
Millison v. E.I. du Pont de Nemours & Co.,
101
N.J.
The Act’s exclusivity can be overcome if the case satisfies the statutory exception for an intentional wrong. N.J.S.A. 34:15-8 provides that
[i]f an injury or death is compensable under this article, a person shall not be liable to anyone at common law or otherwise on account of such injury or death for any act or omission occurring while such person was in the same employ as the person injured or killed, except for intentional wrong.
[(Emphasis added).]
In a series of cases beginning with Millison, this Court elucidated the modern understanding of the intentional-wrong exception to the Act’s exclusive-remedy provision.
Millison
presented the Court with the question of whether employees who suffered asbestos-related diseases as a result of their industrial jobs were limited to recovery only under the Act or whether such employees came within the intentional-wrong exception, entitling them to pursue a separate tort action against their employer.
Millison, supra,
101
N.J.
at 165,
Prior to
Millison,
New Jersey case law had set a high bar for satisfying the intentional-wrong exception, requiring proof of “a deliberate intention to injure.”
Id.
at 170,
That said, the Court found the “deliberate intention to injure” standard to be too onerous and concluded that a more appropriate balance was struck through adoption of a “substantial certainty” standard.
Id.
at 178,
[T]he mere knowledge and appreciation of a risk—something short of substantial certainty—is not intent. The defendant who acts in the belief or consciousness that the act is causing an appreciable risk of harm to another may be negligent, and if the risk is great the conduct may be characterized as reckless or wanton, but it is not an intentional wrong.
[Id. at 177,501 A.2d 505 (quoting Prosser and Keeton on Torts § 8 at 36 (5th ed.1984)).]
The Court elaborated further on the newly established substantial-certainty standard, stating that it is not enough that “a known risk
later blossoms into reality.”
Id.
at 178,
Going forward,
Millison
instructed courts, when assessing claims of intentional wrong, to engage in a two-step analysis. First, a court considers the “conduct prong,” examining the employer’s conduct in the setting of the particular ease.
Id.
at 178-79,
Applying that test to the facts in
Millison,
the Court held that the plaintiffs’ claim of intentional exposure to asbestos in the workplace failed to meet the substantial-certainty threshold because such hazards were considered within the risks the Legislature contemplated in passing the Act.
Ibid.
However, the Court recognized the existence of a valid cause of action in respect of the plaintiffs’ second claim, that their medical conditions were aggravated by the defendants’ concealment of their illnesses.
Id.
at 181,
Millison remains the landmark case on the meaning of intentional wrong. In a series of more recent cases, we have considered factual applications to determine whether particular employer wrongdoing satisfied the substantial-certainty test established in Millison.
In
Laidlow v. Hariton Machinery Co.,
170
N.J.
602,
The defendant manufacturer in
Laidlow
required employees to use a rolling mill into which employees would insert metal bars by hand.
Id.
at 607,
When considering whether the defendant’s conduct amounted to an intentional wrong, we reiterated the essential holding of Milli-son. We explained that,
under Millison, in order for an employer’s act to lose the cloak of immunity of N.J.S.A. 34:15-8, two conditions must be satisfied: (1) the employer must know that his actions are substantially certain to result in injury or death to the employee, and (2) the resulting injury and the circumstances of its infliction on the worker must be (a) more than a fact of life of industrial employment and (b) plainly beyond anything the Legislature intended the Workers’ Compensation Act to immunize.
[Id. at 617,790 A.2d 884 .]
In determining that the conduct prong was met, we cited “the prior close-calls, the seriousness of any potential injury that could occur, Laidlow’s complaints about the absent guard, and the guilty knowledge of [defendant] as revealed by its deliberate and system
atic deception of OSHA.”
Id.
at 622,
if an employee is injured when an employer deliberately removes a safety device from a dangerous machine to enhance profit or production, with substantial certainty that it will result in death or injury to a worker, and also deliberately and systematically deceives OSHA into believing that the machine is guarded, we are convinced that the Legislature would never consider such actions or injury to constitute simple facts of industrial life.
[Ibid.]
A year later, in
ToMeo v. Thomas Whitesell Construction Co.,
176
N.J.
366,
In support of a common-law tort action against his employer, the plaintiff asserted that the safety lever was disengaged to allow the company to remove snow at a faster pace and that such behavior constituted an intentional wrong.
Id.
at 369,
Nor can the context prong, which is a legal determination, be satisfied because plaintiff knew or should have known that the propellers were operating when he inserted his hand into the chute; the labels on the machine clearly warned him of the dangers in this consumer product; and the danger inherent in the snow blower was obvious. Those facts coupled with the presumption that a proper warning of danger will be heeded are dispositive on the context prong.
[Id. at 377,823 A.2d 769 (internal citation omitted).]
In two companion cases issued the same day as
Torneo,
we concluded differently on the substantial-certainty test. Their fact patterns bore a closer resemblance to
Laidlow
in that each involved an OSHA violation among the factors to be considered. We concluded in each that the plaintiffs were entitled to proceed with common-law tort claims against their respective employers.
Mull v. Zeta Consumer Products,
176
N.J.
385,
We granted certification,
ibid.,
and held that the plaintiff presented sufficient facts to proceed to a jury,
id.
at 392,
The facts giving rise to the final case in the
Torneo
trilogy arose from the death of the plaintiff Harold Crippen in an accident at the defendant’s plant.
Crippen v. Cent. Jersey Concrete Pipe Co.,
176
N.J.
397, 399,
Eighteen months prior to Crippen’s death, OSHA had cited the defendant for multiple violations, which had not yet been remedied at the time of Crippen’s accident.
Id.
at 401-03, 410,
Based on those factors, we held that “a jury reasonably could conclude that defendant had knowledge that its deliberate failure to cure the OSHA violations would result in a substantial certainty of injury or death to one of its employees.”
Id.
at 409,
These leading cases on the proof essential to a finding of an intentional wrong provide important context to our analysis of plaintiffs claims. Equally important is an understanding of the federal statutory scheme governing workplace safety on construction sites, to which we now turn.
IV.
With the passage of the Occupational Safety and Health Act of 1970, 29 U.S.C.A §§ 651 to -78, the United States Congress sought “to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources,” 29 U.S.C.A. § 651(b). To that end, Congress authorized the Secretary of Labor—through OSHA—to establish administrative regulations setting forth employment-safety standards. 29 U.S.C.A § 655(a). The regulations are binding on employers whose businesses affect interstate commerce. 29 U.S.C.A. §§ 652(3), -(5), 654.
Through OSHA, the Secretary of Labor is authorized to make inspections to assess employer compliance with applicable safety regulations. 29 U.S.C.A. § 657(a). If there is a deficiency, OSHA is required to issue an official citation and order the employer to abate the problem. 29 U.S.CA § 658. Employers who contest the violation may bring their dispute before the Occupational Safety and Health Review Commission, a body specifically created to handle such challenges. 29 U.S.C.A. §§ 659(c), 661(a). If an employer does not contest the violation, it becomes final and is not subject to review by any agency or court. 29 U.S.C.A. § 659(a).
(a) Protection of employees in excavations.
(1) Each employee in an excavation shall be protected from cave-ins by an adequate protective system designed in accordance with paragraph (b) or (c) of this section except when:
(i) Excavations are made entirely in stable rock; or
(ii) Excavations are less than 5 feet (1.52m) in depth and examination of the ground by a competent person provides no indication of a potential cave-in.
(b) Design of sloping and benching systems. The slopes and configurations of sloping and benching systems shall be selected and constructed by the employer or his designee and shall be in accordance with the requirements of [this subsection.]
(c) Design of support systems, shield systems, and other protective systems. Designs of support systems shield systems, and other protective systems shall be selected and constructed by the employer or his designee and shall be in accordance with the requirements of [this subsection.]
[29 C.F.R. § 1926.652.]
Specifically stating that “[t]he employer had not complied with the provisions of 29 [C.F.R.] 1926.652(b)(l)(i) in that the excavation was sloped at an angle steeper tha[n] one and one half horizontal to one vertical (34 degrees measured from the horizontal),” the OSHA report found that the employer failed to protect its employees from cave-ins in accordance with subsection c. The violation was categorized as “willful.” 29 U.S.C.A § 666(a) provides that “[a]ny employer who willfully or repeatedly violates the requirements ... of this title, any standard, rule, or order promulgated pursuant ... to this title, or regulations prescribed pursuant to this chapter may be assessed a civil penalty of not more than $70,000 for each violation, but not less than $5,000 for each willful violation.” The term “willful” is not further defined by statute or in the regulations as far as our research revealed or as the parties were able to illuminate; 6 however, the designation plainly controls the range of penalty that may be imposed. See 29 U.S.C.A. § 666(j) (setting forth guidelines for Commission to consider when assessing civil penalties, and requiring “due consideration to ... the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations”); see also 29 C.F.B. § 1903.15(b) (incorporating same factors in determination of penalty).
This Court has adhered to the legal principle articulated in
Laidlow
that a finding of an OSHA violation does not equate to an
intentional wrong.
Laidlow, supra,
170
N.J.
at 622-23,
Thus, the finding of an OSHA violation in the wake of this accident is one factor among the totality of circumstances to be considered in respect of immunity, notwithstanding the categorization of the OSHA violation as willful. As the trial court observed, one cannot glean from the OSHA finding of a willful violation whether the employer’s violation of an OSHA requirement was “an intentional disregard or plain indifference.” Secondly, that the regulatory noncomplianee was, per the OSHA report, “not an accident or negligence” is a far cry from addressing, let alone disposing of, the requirement that the proofs demonstrate a finding of substantial certainty of injury or death. That is the pertinent standard an employee must meet to survive summary judgment on an employer’s motion to dismiss a tort action based on the Act’s immunity from suit.
Like the trial court and the Appellate Division, we conclude that the finding of a willful violation under OSHA is not dispositive of the issue of whether the employer in this ease committed an intentional wrong. We decline to find that every willful OSHA violation constitutes an intentional wrong for purposes of the Act. To do so could produce detrimental consequences, such as encouraging employers to dispute OSHA violations
7
rather than negotiate a penalty and move on, having
V.
As
Millison
warned, we approach consideration of the conduct prong with some caution. Mere knowledge by an employer that a workplace is dangerous does not equate to an intentional wrong.
Millison, supra,
101
N.J.
at 178,
The existence of an uncontested finding of an OSHA safety violation in the wake of this workplace injury does not establish the virtual certainty that Millison demands. An intentional wrong must amount to a virtual certainty that bodily injury or death will result. Ibid. A probability, or knowledge that such injury or death “could” result, is insufficient. Thus, the question here is whether in light of the clear violation of the OSHA safety requirements pertaining to trenches deeper than five feet, there was substantial certainty of injury or death. On the facts presented, we cannot reach that conclusion without causing a substantial erosion of the legislative preference for the workers’ compensation remedy.
The events that transpired at this construction site do not equate to the more egregious circumstances involving intentional and persistent OSHA safety violations that, in the past, we found defeated an employer’s motion for summary judgment on the conduct prong analysis.
See, e.g., Crippen, supra,
176
N.J.
at 409-10,
The circumstances here are in sharp contrast to the removal of a safety device on a machine on which an employee is expected to continue operating. In this matter, the on-site supervisor made a quick but extremely poor decision, candidly admitted to having
been made “out of frustration” with unfolding circumstances that morning. Key sent an employee into
That is not to say that the poor judgment exercised here is condoned. We consider only whether plaintiff must be satisfied with the relief provided via the preferred legislative remedy of the workers’ compensation scheme.
This was an exceptional wrong, not an intentional wrong. The employer may have committed a reckless act; it could be possible to find gross negligence on these proofs. Nevertheless, as the trial court found, plaintiff did not satisfy the conduct prong of the substantial-certainty test of Millison. In our view, the Appellate Division’s totality of the circumstances analysis overvalued the finding of a willful violation of known OSHA safety requirements, and parlayed the possibility or probability of a cave-in into satisfaction of the substantial-certainty test. However, some level of a “likelihood” of injury or death is not substantial certainty of injury or death. The Act’s exclusivity analysis should not shift into an amorphous “percentage of the risk” analysis.
Moreover, we must note that the Appellate Division’s analysis credited an argument that this employer disregarded plaintiffs safety “to increase defendant’s profit and productivity,”
Van Dunk, supra,
415
N.J.Super.
at 503,
As for the context prong, we bear in mind that
Millison
enunciated a unitary test. The conduct and context analyses are related and, here, overlap to great degree.
See, e.g., Crippen, supra,
176
N.J.
at 408,
The separate consideration required by the context prong acts as an additional cheek against overcoming the statutory bar to a common-law tort action. It was added to the analysis to reinforce the strong legislative preference for the workers’ compensation remedy. That preference is overcome only when it separately
That high threshold is not met here. Where the exclusivity bar of the Act operates to foreclose tort actions against employers for reckless or gross negligence under the substantial-certainty test— a standard accepted by the Legislature for more than two-and-one-half decades—one cannot reasonably conclude that the type of mistaken judgment by the employer and ensuing employee accident that occurred on this construction site was so far outside the bounds of industrial life as never to be contemplated for inclusion in the Act’s exclusivity bar. While a single egregiously wrong act by an employer might, in the proper circumstances, satisfy the intentional-wrong standard, not every intentional, or indeed willful violation of OSHA safety requirements constitutes a wrong that is “plainly beyond anything the legislature could have contemplated as entitling the employee to recover
only
under the Compensation Act.”
Id.
at 179,
In sum, the Workers’ Compensation Act circumscribes plaintiffs ability to pursue a tort action against his employer. Although a reasonable fact-finder could determine that the employer’s actions constituted gross negligence, that showing is not enough to overcome the Act’s exclusivity requirement. We hold that neither the conduct nor the context prongs of the Millison substantial-certainty test is satisfied in this matter. Accordingly, the Act’s exclusivity provision and, specifically, its statutory bar, prevail to bar plaintiff’s action against his employer.
VI.
The judgment of the Appellate Division is reversed.
For reversal—Chief Justice RABNER and Justices LaVECCHIA, ALBIN, HOENS, PATTERSON, and Judge WEFING (temporarily assigned)—6.
Notes
Van Dunk and his wife are both plaintiffs in the instant matter, but for the purposes of this opinion, we refer to them singly as "plaintiff."
OSHA regulations define a "competent person” as "one who is capable of identifying existing and predictable hazards in the surroundings, or working conditions which are unsanitary, hazardous, or dangerous to employees, and who has authorization to take prompt corrective measures to eliminate them." 29 C.F.R. § 1926.650(b). James had in place a formal Safety Program that required the use of protective systems for trenches and the presence of a similarly defined "competent person."
As Key later explained, several risk factors for trench collapse were present. When deposed. Key stated that he observed some moisture present in the soil, which indicated moisture seepage. He also noticed cracking in the dirt along a bank of the trench. In addition, an excavator was being used in the excavation and he was aware that vibrations from excavating equipment are a risk factor in trench collapse.
At his deposition. Key testified that he could not recall whether Van Dunk volunteered a second time to go into the trench. We review this summaxy judgment record in the light most favorable to the non-moving party.
Davis v. Devereux Found.,
209
N.J.
269, 286,
The United States Circuit Courts of Appeal appear universally to embrace this definition of a "willful" violation.
See Ensign-Bickford Co. v. Occupational Safety & Health Review Comm’n, 717 F.2d
1419, 1422 (D.C.Cir.1983) ("Although the Act does not define the term 'willful,' courts have unanimously held that a willful violation of the Act constitutes an ‘act done voluntarily with either an intentional disregard of, or plain indifference to, the Act’s requirements.’ ” (citations omitted));
Cedar Constr. Co.
v.
Occupational Health & Safety Review Comm’n,
The commonly accepted case law definition of "willful violation" is "an act done voluntarily with either an intentional disregard of, or plain indifference to, the Act’s requirements."
Ensign-Bickford Co., supra,
Otherwise, it would put in the hands of different OSHA inspectors, using a malleable standard for "willfulness," responsibility for determining what our Legislature meant by an "intentional wrong."