By: Richard E. Guttentag, Esq., Stearns, Roberts & Guttentag, LLC

In R.L. Haines Const., LLC v. Santamaria, 2014 WL 4648522, the estate of a construction foreman filed a lawsuit for wrongful death due to a fatal accident on a construction site. Foreman worked for a Subcontractor on a 200,000 square foot expansion project of an existing warehouse. Subcontractor’s scope of work included the erection of four steel columns to support the building. Each column was thirty-three feet high and weighed over 2,000 pounds. The columns were attached to bolts anchored to a concrete base by an epoxy adhesive. According to the epoxy’s installation instructions, the epoxy had to cure for 72 hours before the columns could be installed.

Subcontractor installed the anchor bolts with the epoxy. However, the project’s General Contractor demanded that the steel columns be installed even though the epoxy had only cured for 44 hours. After the columns were installed, Foreman was tightening a wire on a column when the column fell on him, causing his death.

Foreman’s estate filed a wrongful death action against the General Contractor, arguing that it was entitled to bring a lawsuit outside of the workers’ compensation system because Foreman’s death was“virtually certain” to occur due to the failure to follow the epoxy’s installation instructions. Under Florida law, recovery for damages arising from workplace injuries and deaths are governed by the Worker’s Compensation Law. In exchange for the benefits under the worker’s compensation law, which provides employees with swift compensation for workplace injuries regardless of fault, employers are immune from law suits brought by employees, except in the most egregious circumstances. One such exception to the worker’s compensation immunity allows an employee to bring a lawsuit against his employer if 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. The trial court found that this exception applied to this case, and the jury rendered a verdict in favor of Foreman’s estate.  The General Contractor appealed.

The appellate court noted that the “virtually certain” standard is an extremely difficult standard to meet, requiring a plaintiff to prove that a given danger will result in an accident almost every time. The court reasoned that any modestly dangerous activity at a workplace, repeated often enough, will eventually result in an accident. Thus, a mere increase in likelihood of an injury is not sufficient to meet the “virtually certain” standard. Indeed, no Florida case to date has held that an employer’s negligence was virtually certain to cause injury.

Under the facts of this case, there was no clear and convincing evidence to show that Foreman’s death was virtually certain to occur, as opposed to simply more likely to occur. There was no evidence of any prior similar accidents, the other three columns installed on the project with the same short curing time did not fall, and there was evidence of other causes for the failure of the anchor bolts.  Further, no expert testimony established that the column would fall at a given time, in a given direction, or in a manner that was virtually certain to injure or kill an employee. Thus, the court held that the column was not “virtually certain” to fall and injure or kill a worker, and therefore the intentional tort exception to the workers’ compensation immunity did not apply in this case.

This case demonstrates that employers in compliance with the Workers’ Compensation law are immune from their employees’ law suits for damages arising from work-related injuries, except in the most egregious circumstances, such as when the employer engages in conduct that the employer knew, based on prior similar accidents or warnings identifying the known danger, was virtually certain to result in injury or death to the employee. However, as demonstrated in this case, the “virtually certain” standard is extremely difficult to satisfy.

About the Authors: Richard E. Guttentag is a partner with Stearns, Roberts & Guttentag, LLC, and is Board Certified in Construction Law by the Florida Bar. Mr. Guttentag concentrates his practice exclusively in construction law including construction lien claims and defense, payment and performance bond claims and defense, bid protests, construction contract preparation and negotiation, and construction and design defect claims and defense. He can be reached for consultation at [email protected].

Share Now:


Subscribe To Our Newsletter