This article continues last week’s discussion regarding an injured worker’s options in Florida. What follows are some additional exceptions to the work comp injury scheme, which allow an injured employee to bring a civil suit, wherein he or she may seek full reimbursement for damages and for pain and suffering, unlike in workers’ compensation, which is limited to reduced wages and medical treatment.
Intentional Tort – Virtual Certainty
The intentional tort exception is found in 440.11(1)(b)1 (below). But it is the next subsection that provides most injured workers with the hope for an avenue to pursue civil liability – mostly referred to as the “virtual certainty” exception (see 440.11(1)(b)2 below).
The text of the 440.11(1)(b):
(b) When an employer commits an intentional tort that causes the injury or death of the employee. For purposes of this paragraph, an employer’s actions shall be deemed to constitute an intentional tort and not an accident only when the employee proves, by clear and convincing evidence, that:
The employer deliberately intended to injure the employee; or
The employer engaged in conduct that the employer knew, based on prior similar accidents or on explicit warnings specifically identifying a known danger, was virtually certain to result in injury or death to the employee, and the employee was not aware of the risk because the danger was not apparent and the employer deliberately concealed or misrepresented the danger so as to prevent the employee from exercising informed judgment about whether to perform the work.
This version represents a substantial tightening up of the exception by the legislature in 2003. Moreover, this section applicable to an employer, including supervisors unless a supervisor’s actions equate to a first degree felony.
The same immunity provisions enjoyed by an employer shall also apply to any sole proprietor, partner, corporate officer or director, supervisor, or other person who in the course and scope of his or her duties acts in a managerial or policymaking capacity and the conduct which caused the alleged injury arose within the course and scope of said managerial or policymaking duties and was not a violation of a law, whether or not a violation was charged, for which the maximum penalty which may be imposed does not exceed 60 days’ imprisonment as set forth in s. 775.082.
Setting aside the criminal action claim for now, the definition of an intentional tort in this context was discussed in List Indus., Inc. v. Phiteau Dalien, 107 So.3d 470 (Fla. 4th DCA 2013) and Gorham v. Zachry Industrial, Inc., 105 So.3d 629 (Fla. 4th DCA 2013).
The Florida legislature effectively overruled the case of Turner v. PCR, Inc., 754 So. 2d 683 (Fla. 2000), when it amended §440.11, Fla. Stat. to codify the “intentional tort exception” to an employer’s workers compensation immunity recognized by the state’s highest court in Turner. In the revised statute, the legislature has mandated that the plaintiff/employee prove the “intentional tort exception” by clear and convincing evidence. Moreover, it has replaced a “substantial certainty” standard with the “virtually certain” standard by requiring the employer to have known based upon similar accidents or on explicit warnings specifically identifying a known danger that was virtually certain to result in injury or death to the employee. The change from “substantial certainty” to “virtually certain” is an extremely different and a manifestly more difficult standard to meet. It means that a plaintiff must show that a given danger will result in an accident every–or almost every–time.
On its face, § 440.11, Fla. Stat. (2005) requires the employee to prove by “clear and convincing evidence” that the employer’s actions constituted an intentional tort and not an accident. Proof by clear and convincing evidence of a non-intentional tort is not sufficient to avoid the employer’s statutory immunity.
The history of the workers’ compensation system demonstrates that the Florida legislature has intended to give co-workers and employers immunity from suit except in extraordinary situations. The legislature has thus created an exclusive, administrative, no-fault remedy that is unaffected by comparative negligence in exchange for broad immunity from lawsuits for employers and co-workers. The goal of this policy is to avoid lawsuits at the outset, not simply to prevent adverse verdicts against employers and co-workers at the end of lengthy litigation. If the trial courts are to foster these legislative policies, they must serve as gatekeepers at the initial stages of litigation.
List Indus., Inc.
The elements which the employee must prove for the intentional tort exemption to workers compensation immunity are: 1) employer knowledge of a known danger, based upon prior similar accidents or explicit warnings specifically identifying the danger that was virtually certain to cause injury or death to the employee; 2) the employee was not aware of the danger, because it was not apparent; and 3) deliberate concealment or misrepresentation by the employer, preventing employee from exercising informed judgment as to whether to perform the work. All three elements must be proved by clear and convincing evidence to overcome statutory immunity of the employer. Under this no-fault system, the employee gives up a right to a common-law action for negligence in exchange for strict liability and the rapid recovery of benefits. The language of the current version of the statute was adopted by the Legislature in 2003 as a reaction to Turner, in which the court adopted an objective, but less stringent, construction of the intentional tort exception. The virtual certainty standard of employer conduct adopted by the Legislature is more strict than the standard of Turner.
The prior standard in Turner is important to know to compare and contrast to the current standard:
Although the court continues to find that substantial certainty requires a showing greater than gross negligence, the court emphasizes that the appropriate standard is substantial certainty, not the heightened virtual certainty standard, in determine whether an employer acted in an intentionally tortious manner.
Under an objective test for the substantial certainty standard, an analysis of the circumstances in a case would be required to determine whether a reasonable person would understand that the employer’s conduct was substantially certain to result in injury or death to the employee. Under this approach, the employer’s actual intent is not controlling
Under an objective test for the substantial certainty standard, an analysis of the circumstances in a case would be required to determine whether a reasonable person would understand that the employer’s conduct was “substantially certain” to result in injury or death to the employee. Under this approach, the employer’s actual intent is not controlling. On the other hand, a subjective approach essentially requires a determination as to whether an employer actually knew or intended the consequences of its conduct. Under this approach, there would actually be no alternative basis for recovery against an employer. Rather, an employee would be limited to actions where the employer engaged in conduct that the employer actually knew would be harmful to the employee.
Turner v. PCR, Inc., 754 So.2d 683 (Fla. 2000).
Under the current standards the test is subjective to the actual employer and no longer objective – the elements which require proof of the subjective test must be proved by “clear and convincing evidence” and the requirements of prior similar accidents as well as an almost criminal intent to hide the danger from an employee, the burden of proof is nearly insurmountable. Indeed, one plaintiff’s attorney has described the standard to the author as “virtually certain now means virtually certain to be dismissed.” Obviously, this was the intent of the legislature and complaints should be directed there. The bottom line analysis is that the employer must have intended to subject the employee to circumstances which were virtually certain to result in an injury each and every time it occurred. The occurrence of prior circumstances where no injury occurred is relevant to this consideration and to these cases.
Willful and Wanton Disregard – Gross Negligence
The next part of the statute defines the scope of exclusive remedy to other entities. However, it also creates another avenue of avoidance for Plaintiffs in some limited circumstances – gross negligence of co-employees.
The same immunities from liability enjoyed by an employer shall extend as well to each employee of the employer when such employee is acting in furtherance of the employer’s business and the injured employee is entitled to receive benefits under this chapter. Such fellow-employee immunities shall not be applicable to an employee who acts, with respect to a fellow employee, with willful and wanton disregard or unprovoked physical aggression or with gross negligence when such acts result in injury or death or such acts proximately cause such injury or death, nor shall such immunities be applicable to employees of the same employer when each is operating in the furtherance of the employer’s business but they are assigned primarily to unrelated works within private or public employment.
The same immunity provisions enjoyed by an employer shall also apply to any sole proprietor, partner, corporate officer or director, supervisor, or other person who in the course and scope of his or her duties acts in a managerial or policymaking capacity and the conduct which caused the alleged injury arose within the course and scope of said managerial or policymaking duties and was not a violation of a law, whether or not a violation was charged, for which the maximum penalty which may be imposed does not exceed 60 days’ imprisonment as set forth in s. 775.082. The immunity from liability provided in this subsection extends to county governments with respect to employees of county constitutional officers whose offices are funded by the board of county commissioners. (emphasis added to relevant portions).
As noted above, immunity is not available if the co-employee acts with willful and wanton disregard or unprovoked physical aggression or with gross negligence when such acts result in injury or death or such acts proximately cause such injury or death. Immunity is also not applicable to employees of the same employer when each is operating in the furtherance of the employer’s business, but they are assigned primarily to unrelated works within private or public employment.
Additionally, sole proprietors, partners, corporate officers or directors, supervisors, or other people acting in a managerial or policymaking capacity, enjoy immunity from liability arising from an employee’s injuries, as long as their conduct was not a violation of a law, for which the maximum penalty that may be imposed exceeds 60 days’ imprisonment. Accordingly, a person falling into this category must commit an act that is equivalent or greater than a 1st degree misdemeanor before tort liability attaches. In Eller v. Shova, 630 So. 2d 537, (Fla. 1993), the Florida Supreme Court determined that culpable negligence falls into this category.
The Fourth District Court Appeal addressed the definition of a co-employees gross negligence in Boston v. Publix Super Mkts., Inc., 112 So. 3d 654, ( Fla. 4th DCA 2013). In Boston, a co-employee was crushed between semi-trailer and a loading dock by a co-employee that was operating a defective tractor. The co-employee’s estate brought suit against Publix and the co-employee.
The co-employee testified that he knew the backup alarm on the tractor was inoperable and had not been working for months. He did not report it to Publix maintenance, nor did he fill out inspection reports designed to call attention to any maintenance problems. This was in contradiction to Publix’s policy for safety inspections and maintenance that would have required the tractor to have been taken out of service to repair the backup alarm.
The 4th DCA noted that §440.11(1)(b), “does not adopt the same virtual certainty standard for injury as applies to the employer directly. Instead, a gross negligence standard is applicable. Citing Eller v. Shova, 630 So. 2d 537, (Fla. 1993), the court defined “gross negligence” as an act or omission that a reasonable, prudent person would know is likely to result in injury to another. The court stated that a finding of gross negligence requires the following:
[F]irst of all, gross negligence presupposes the existence of a “composite” of circumstances which, together, constitute an “imminent” or “clear and present” danger amounting to more than normal and usual . . . peril. . . .
Secondly, gross negligence must be predicated on a showing of chargeable knowledge or awareness of the imminent danger spoken of.
And thirdly, the act or omission complained of must occur in a manner which evinces a “conscious disregard of consequences,” as distinguished from a “careless” disregard thereof (as in simple negligence) or from the more extreme “willful or wanton” disregard thereof (as in culpable or criminal negligence).
The court explained that modestly dangerous activities that are repeated often enough or over a long period of time will eventually result in an accident. The concept of “gross negligence,” however, examines the combination of circumstances to evaluate the relevant risk. It does not add together or cumulate the individual probabilities of an accident on each occasion to reach a conclusion that an accident is inevitable or that a risk is inordinately high. The tortfeasor’s conduct must be evaluated in the context of the particular occurrence.
Further, the court found that the facts in Boston still raised an issue of material fact as to whether the co-employee acted with gross negligence, even though the co-employee regularly disregarded the known risks by operating the tractor in reverse without the backup alarm and frequently ignored vitally important safety rules without regard to the potentially fatal consequences.
In Villalta v. Cornn Int’l, Inc.,109 So. 3d 278, ( Fla. 1st DCA 2013), the 1st District Court of Appeal stated that, the line between simple and gross negligence is often uncertain and indistinct, and in such circumstances the question of whether negligence is simple or gross should ordinarily be resolved by the jury. Furthermore, the standard for gross negligence has been described as encompassing a composite of circumstances which create a clear and present danger of serious harm, where the defendant was aware or charged with knowledge of such danger and acted in conscious disregard of that danger.
The 2nd DCA held, in Pyjek v. ValleyCrest Landscape Dev., Inc., 116 So. 3d 475, 478 (Fla. 2d DCA 2013), that the issue of gross negligence was a jury question where a fence worker was crushed by a recently-installed palm tree that fell before, was re-planted, and fell again on worker)
In the 4th DCA, where these cases are pending, the appellate court likewise ruled the issue of gross negligence was a jury question where a branch manager was murdered during a robbery after the bank suffered two prior robberies and had withdrawn an armed security guard in violation of their own security manual. Sullivan v. Streeter, 485 So. 2d 893, 895 (Fla. 4th DCA 1986).
However, the circuit court is not bound to pass the question on to the jury. For example, in Vallejos v. Lan Cargo, S.A., 116 So. 3d at 545, 552-53 (Fla. 3d DCA 2013), the appellate court upheld a summary judgment in a case where a worker was injured after wrapping rope around his hand because allowing workers to dump a hopper using makeshift rope may have been negligent and more dangerous than other methods, but it did not rise to level of gross negligence. Also, in Merryman v. Mattheus, 529 So. 2d 727, 729 (Fla. 2d DCA 1988), the court upheld summary judgment because allowing a crane operator to use a crane with a malfunctioning device designed to prevent lifting the load too high, after instructing crane operator not too lift loads above certain height, did not support finding of gross negligence.
Therefore, the takeaway from these cases is that gross negligence can be decided against a plaintiff by a circuit court judge and such a ruling will most likely be upheld, but it is also one that a court will often pass on to a jury. Finally, as with employer immunity, an injured worker has the burden of proving that a co-employee committed an act of gross negligence by the heightened standard of clear and convincing evidence as indicated in Section 440.11(1)(a).
Moradiellos v. Gerelco Traffic Controls, Inc. ___ So.3d ___ (Fla. 3rd DCA 2015) is recent case discussing “the theoretically clear, but sometimes difficult-to-apply, distinction between simple negligence and gross negligence.” DCA upheld summary judgment ruling that a subcontractor was not grossly negligent. The case discusses past case law on gross negligence and determined that even if the facts rose to “careless disregard” they did not rise to “conscious disregard” of “imminent danger.”
Although the battle is an uphill journey, employees who are seriously injured at work should seek counsel as to whether or not they may have a case for civil negligence which would provide a greater recovery than workers’ compensation alone. On the other hand, an employer of a seriously injured worker would do well to seek counsel soon after the incident to insure that workers’ compensation benefits are properly provided and to review the matter to determine if there is exposure for a civil suit so that the employer’s insurance carriers may be properly noticed. Cases of this nature normally involve great risk, expense and potentially a large award of damages. The lawyers at Appel Harden have experience prosecuting and defending these cases in both the workers’ compensation and the civil law arenas. We are always happy to field general questions and provide a free case review. Call us at (863) 644-4003 or email Jeff Appel at firstname.lastname@example.org