By: Richard E. Guttentag, Esq. and Alexander S. Beck, Esq., Stearns, Roberts & Guttentag, LLC
Employers are generally immune from facing suit in civil court for injuries sustained by their employees in the course of their employment where workers’ compensation is in place, as workers compensation insurance is generally an employee’s exclusive remedy. However, Florida’s Workers’ Compensation Law provides an exception to employers’ immunity and subjects employers to civil liability where an employer commits an intentional tort that causes the injury or death of the employee.
The case of Musson v. Bradshaw Construction Corporation, 2014 WL 794337 (S.D. Fla. 2014), involved a civil action by an employee who sought damages under Florida’s statutory intentional tort exception to employers’ immunity under Florida Workers’ Compensation Law. In Musson, the Employer was a subcontractor that built tunnels underneath roads for sewer and water. The Employee had prior construction experience and completed a safety meeting upon being hired by the Employer. The accident at issue arose on a project where the Employer was building two tunnels for a utility pipe.
The tunnel project required “head walls,” which are concrete structures at the end of each tunnel shaft perpendicular to the path of the tunnel with a large circular hole in the middle to accommodate the Tunnel Boring Machine (“TBM”) passing through. The void or hole in the head wall is created by including a wooden “form block out” or “doughnut” in the head wall form that is later removed after the head wall concrete around the doughnut has set. In the head wall at issue in this case, one internal vertical steel beam was welded to the waler (horizontal steel beam that is part of the shaft structure) above the doughnut for the purposes of holding the doughnut down and in place inside the form and preventing it from floating up and out of position during the concrete pour.
On the date of the accident, the Employee was designated the concrete pourer on the first of the two head walls for one of the tunnels. Prior to the accident, co-workers saw the Employee standing on the waler to pour the concrete. As concrete was poured, the doughnut form rose. No one saw the Employee step down from the waler to the doughnut but he was found doubled over, trapped and crushed between the rising doughnut and the waler. The Employee sustained severe injuries as a result of the accident. A court appointed guardian brought a civil action on behalf of the Employee and his minor children against the Employer alleging that the Employee’s injuries were caused by the intentional tortious acts of the Employer, and therefore the Employer should not be immune from civil suit under the Workers Compensation Law. The Employer filed a Motion for Summary Judgment arguing that the Employee could not meet the high evidentiary standard imposed by Florida Statute, Section 440.11(1)(b), which provides for the exception to employers’ immunity.
Florida Statute, Section 440.11(1)(b) provides an exception to employers’ immunity under the Workers’ Compensation law when an employer commits an intentional tort that causes the injury or death of an employee. Under this statute, an employer’s actions will constitute an intentional tort when the employee can prove by clear and convincing evidence that: 1) the employer had 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) there was deliberate concealment or misrepresentation by the employer, preventing the 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 the statutory immunity of the employer.
In Musson, witnesses testified that they had never seen an accident like this. The Employer stated that it had never experienced a floating doughnut in the same or substantially similar manner as occurred during Employee’s accident, and no employees were injured during the concrete pours for the two head walls at the other tunnel. After the accident, OSHA issued several citations against the employer, but pursuant to the Employer’s settlement with the Department of Labor, the citations were either dismissed, reclassified to Other than Serious or corrected during inspection. The battalion chief for special operations with the City of Hollywood Fire Rescue Department visited the job site several times prior to the accident. The chief testified that after the field visit he took his team back to the fire station and sat down with them to try to imagine what might go wrong. He admitted that even though he tried to anticipate all problems, he never foresaw the Employee’s accident.
In its Motion for Summary Judgment, the Employer argued that there was no evidence that the Employee’s injury was virtually certain to occur, or that the Employer deliberately concealed or misrepresented the danger associated with the concrete pour. As mentioned above, the first element an employee must prove to satisfy the intentional tort exception is that the employer had 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. The term “virtually certain” means “that a plaintiff must show that a given danger will result in an accident every-or almost every-time.”
Based on testimony of the battalion chief and co-workers of the Employee, the Court ruled the Employer never received an explicit warning specifically identifying the danger which caused the accident, as there was no record of anyone foreseeing the concrete pouring accident. Since the specific accident could not be foreseen, the Court ruled that the Employer could not have received an explicit warning required to satisfy the first element of an intentional tort, nor could the Employer be imputed with knowledge of a known danger that it deliberately concealed or misrepresented the danger associated with the concrete pour to Employee. Therefore, the Court held that the exception to employers’ immunity under the Workers’ Compensation law had not been met, and granted Employer’s Motion for Summary Judgment.
This case demonstrates that employers are generally immune from facing suit in civil court for injuries sustained by their employees in the course of their employment where workers’ compensation is in place. The Courts apply a stringent standard when analyzing an exception to Workers Compensation immunity, and will require the employee to show clear and convincing evidence that the injury was caused by employer’s intentional acts to overcome the employers’ immunity.
About the Author: Richard E. Guttentag is a partner with Stearns, Roberts & Guttentag, LLC, and is Board Certified in Construction Law by the Florida Bar. Mr. Guttentag 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].