Florida Court of Appeal Reviews Exception to Workers’ Compensation Immunity in Wrongful Death Suit


If a person is injured while working, her or his injury and expenses are likely covered through the benefits outlined in Florida’s Workers’ Compensation statutes.  In exchange for providing a path to medical care and financial relief quickly, an employer is rewarded with immunity from civil action.  This helps the employee to feel assured the accident is covered and ensure the employer is confident business can move on without extensive litigation.  Florida’s statutes provide an exception to this immunity.  The immunity fails when an employer commits an intentional tort that causes the injury or death; or the employer engages in conduct knowing based on certain events in the past, death or injury was almost certain to occur.  The immunity does not extend to fellow employees when they act with such willful and wanton disregard or gross negligence to have caused the accident. 

The Florida Fifth District Court of appeal recently tackled the question of whether one of the exceptions to the immunity applied in an industrial accident.  The parents of a mill-worker filed suit against his employer and fellow worker after he died while inside the mixing box of a cement-mixing pug mill.  The parents alleged the other employee began operating the mill without checking to see if he was still inside first.  The defendants sought summary judgment in its favor, arguing the claims were barred by workers’ compensation immunity.

The trial court granted the motion, finding there was no genuine issue of material fact and the defendants were entitled to a judgment as a matter of law.  The trial court looked at whether the exceptions applied, and determined they did not.  The parents appealed, arguing this was in error.  The court analyzed the three elements needed to reach one of the exceptions to the immunity against the facts found in Gorham v. Zachry Indus., 105 So. 3d 629, 633 (Fla. 4th DCA 2013).

The parents argued on appeal that their son was not aware of the danger because it was not apparent.  The court noted there was no evidence the deceased son was unaware of the danger inherent in clearing the pug mill since the danger was readily apparent.  The son had worked inside and around the machine multiple times before the fatal accident.  The court concluded the pug mill was the type of machine that held obvious dangers to anyone working in the vicinity.  The court concluded this did not fall within the second exception to workers’ compensation immunity.  The summary judgment in favor of the defendant employer was upheld. 

The parents also argued the trial court erred by entering summary judgment in favor of the employee.  The parents alleged he was grossly negligent and nothing in the record prevented them from showing he fell within one of the immunity exceptions.  The court agreed, stating that in order to show the co-worker acted with gross negligence, the parents would need to establish the circumstances constituted a clear and present danger that was greater than the standard amount, that the other employee was aware of the imminent danger, and that the act or omission on the part of the co-worker shows a conscious disregard of the consequences. 

The co-worker directed the deceased into the pug mill for cleaning.  He later activated the mill without using any of the safety systems or the “thumbs up” signal system normally used by workers to check whether or not the other worker was inside.  The appellate court found it was possible for a jury to conclude the co-worker was grossly negligent.  The summary judgment in favor of the co-worker was reversed, and the entire proceeding was remanded.

The wrongful death attorneys of Donaldson & Weston are experienced litigators that can assist you with your claim.  Call our office today at 772-266-555 or 561-299-3999 for a free, confidential consultation.

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