Shimp v. New Jersey Bell Telephone Company

Donna M. Shimp, a secretary at New Jersey Bell Telephone Company, successfully sought injunctive relief against her employer through the common law argument. Shimp was employed in an area in which other employees were permitted to smoke at their desks. She contended that inhalation of the resulting ETS was harmful to her health, and therefore her employer, by condoning the presence of ETS, allowed an unsafe working condition to exist. She brought an action in New Jersey Superior Court, Chancery Division, seeking an injunction, or court order, that would require New Jersey Bell Telephone to ban workplace smoking.

Shimp presented affidavits from attending physicians documenting that she was allergic to cigarette smoke and suffered such symptoms as severe throat irritation, nasal irritation, nosebleeds, eye irritation which resulted in corneal abrasion and corneal erosion, headaches, nausea, and vomiting. Shimp was forced to leave the workplace on numerous occasions because of these symptoms. These symptoms abated, however, whenever Shimp remained in an area free of smoke. Shimp attempted to resolve the problem of workplace ETS through her union's collective bargaining grievance procedures, by which it was agreed that the employer would install an exhaust fan in the work area. But because other workers complained of the resulting draft, the fan was often turned off and did not solve the problem. Thus Shimp brought her action in New Jersey Superior Court.

Justice Gruccio decided the issue based on the briefs submitted by the lawyers representing the plaintiff and the defendant. Because the case was a matter of first impression--it involved a legal issue not yet ruled upon in that jurisdiction--Justice Gruccio relied on principles of common law. He considered three issues: whether the Occupation Safety and Health Act (OSHA) and workers' compensation regulations on workplace safety allowed a worker to seek injunctive relief through the courts; whether the plaintiff's complaint was based on a legitimate medical condition; and whether the complaint was causally related to the presence of environmental tobacco smoke in the workplace.

Citing rulings from McDonald v. Standard Oil Co., Burns v. Delaware and Atlantic Tel. And Tel. Co., Clayton v. Ainsworth, Davis v. N.J. Zinc Co., and Canonica v. Celanese Corp. of America, Justice Gruccio found that "It is clearly the law in this state that an employee has a right to work in a safe environment." The court stressed that this is a duty imposed both by common law and by the OSHA of 1970. Justice Gruccio emphasized that OSHA's general duty clause imposes on the employer "a duty to eliminate all foreseeable and preventable hazards" and that this clause "recognizes concurrent state power to act either legislatively or judicially under the common law with regard to occupational safety." In addition, the court wrote that nothing in the Workmen's Compensation Act, which regulated procedures for seeking monetary damages after an injury, prohibited workers from pursuing injunctive relief against occupational hazards. Therefore, Justice Gruccio determined that the plaintiff's suit against her employer was a proper cause of action and that the court had authority to resolve the matter.