By: Stearns, Roberts & Guttentag, LLC
In Florida, the legislature has enacted statutes that provide a strict liability of compensation for workers in which the injured receives a guarantee of rapid compensation for work related injuries. In return, however, an injured is precluded from raising any common law negligence claims. Instead, an injured is required to establish a high threshold to overcome the immunity granted to the employer under an “intentional tort” theory. The immunity standard for an employee is somewhat lower, requiring the injured to prove “gross negligence.”
In Boston v. Publix Super Markets, Inc., 2013 WL 1810630 (Fla. 4th DCA 2013), Edgar Javier Ramos (“Employee”) was employed by Publix Super Markets, Inc. (“Employer”) as a spotter driver, who used Ottawa tractors to move trailers to loading bays to load and unload merchandise at the Deerfield Distribution Center (“Center”). On the morning of the accident, the Employee drove toward the loading dock, backed up his tractor into position, and exited the tractor. The decedent also approached the area in his tractor, parked in the neighboring loading dock, and got out of his tractor. The Employee, thinking that the decedent was going to talk to another driver nearby, went back into his tractor, looked in his mirrors, and backed the trailer flush with the warehouse door. The Employee felt a “bump against what he thought were the dock pads,” and set his brakes. Another driver began yelling at the Employee to pull forward because the decedent had been crushed between the rear of the trailer and the warehouse dock pad, and was pinned behind the trailer for two to three minutes. According to another witness, the driver would have no way of seeing what was happening directly behind is trailer. The decedent died shortly after the incident.
Although the tractors are equipped with backup alarms, it was discovered that the alarm was not working on the Employee’s Ottawa tractor. The Employee knew that the alarm was not working for months before the incident, and failed to report it to the employer’s maintenance department. The Employer’s policy for safety inspections and maintenance would have required that the tractor be taken out of service to repair the backup alarm. Although the tractor was overdue for safety inspections, the tractor had been in for other maintenance, and the maintenance staff should have checked the alarm to repair it. The Employer knew of three prior accidents at the Center, but none of the prior accidents involved the tractors, with or without a failed backup alarm, in which an employee was pinned between a trailer and the loading dock, or where the tractor-trailer backed into an employee. The Employer was cited by OSHA for failing to “furnish to each of [its] employees employment and a place of employment which were free from recognized hazards that were causing or were likely to cause death or serious physical harm to employees . . . .”
The personal representative of the decedent’s estate filed suit against the Employer and Employee, alleging that the Employer committed an intentional tort and that the Employee was grossly negligent for the death of the decedent. After extensive discovery, both the Employer and Employee filed motions for summary judgment. The Employer and Employee argued that the decedent could not establish the extremely high burden to overcome workers’ compensation immunity. After reviewing the facts and circumstances, the district Court found that the evidence failed to establish that the Employer knew, based on prior similar accidents or explicit warnings, was virtually certain to result in injury and death to the decedent.
The decedent appealed. The Fourth Circuit recognized that the legislature enacted an exclusive, administrative, no-fault remedy, and in exchange, granted broad immunities in favor of employers and employees. The worker’s compensation statues provide a strict liability system of compensation for injured workers in which the worker receives a guarantee of rapid compensation but in exchange is unable to raise any common law negligence claims against the employer or employee. As such, the Court stated its role was to serve as “gatekeepers” at the initial stages of litigation to avoid lawsuits, not simply to prevent adverse verdicts against the employers and employees at the end of the litigation.
To overcome the high threshold of immunity granted to an employer, an injured must prove three (3) elements:
- The employer engaged in conduct that the employer knew, based on similar accidents or on explicit warnings specifically identifying a known danger, was virtually certain to result in injury or death to the employee;
- 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 present the employee from exercising informed judgment about whether to perform the work.
In its final analysis, the Fourth Circuit stated that the evidence failed to support any of the elements – the accident did not concern the same danger or similar danger of any prior accidents, nor did the lack of a backup alarm with virtual certainty result in injury. Rather, the Court recognized that although any modestly dangerous activity that is repeated long enough eventually will result in injury that does not cumulate the individual probabilities to result in a conclusion that an accident is inevitably or that a risk is inordinately high.
However, the Fourth Circuit did reverse on the immunity granted in favor to the Employee under the gross negligence standard. The facts showed that the Employee knew the backup alarm was not functioning for several months, knew the tractor drivers could not see the area directly behind the tractor, and knew that at least one other worker was in the area of the loading dock. As such, material facts precluded summary judgment, and the case was remanded.
This case demonstrates that an injured’s remedy against an employer is to pursue administrative procedures under the worker’s compensation statutes, which provide rapid compensation to an injured under a theory of strict liability for work related injuries. To prevail on a suit against an Employer for an intentional tort, or an Employee for gross negligence, will require an injured to overcome the high threshold of broad statutory immunities granted to an employer and employee.