Florida District Court of Appeal Reviews Construction Worker Wrongful Death Case


Construction work has a high risk of injury.  If an injury or death occurs while on the job, workers’ compensation may be available for an injury on the job.  However, the money provided may not be enough, and other people or entities may be liable.  Construction projects often include subcontractors and their employees, who may create an unsafe work environment.  While workers’ compensation often stands in place of a personal injury lawsuit, liability can still exist if the actions of the the party are grossly negligent. State law provides an exception to the immunity provided by workers’ compensation if the party acts in a way that would most likely result in injury to persons or property.

The Florida Third District Court of Appeals recently ruled on a wrongful death case in Moradiellos vs. Gerelco Traffic Controls, Inc., (No. 3D14-566).  This suit involved an employee of the general contractor who was killed by another employee of the general contractor.  The deceased general contractor employee was an asphalt surveyor who was killed at night while working in a closed-off lane to determine road surface markings.  The surveyor was given a head lamp, but there were no additional lamps provided through a subcontractor to the area where he was assigned.  Additional lamps had previously been provided, but they were not requested by the surveyor’s supervisor because they were working in an area closed to traffic and away from machines laying asphalt. 

The surveyor was killed after an employee was directed to take a dump truck to the area where the surveyor was working.  The employee driving the dump truck went against directions to take the southbound lanes and instead drove the truck backwards in the northbound lanes, where he ran over the surveyor.  After the surveyor’s death, his wife filed a wrongful death lawsuit against several people and entities, including the general contractor and the subcontractor who was responsible for providing the high mast light.  The light had gone out nearly a year and a half prior to the accident, and several requests were made for the light to be fixed.  The light remained broken and was not fixed on the night of the accident.

In the widow’s original claim, the subcontractor moved for summary judgment, claiming it was immune from suit based on Florida’s workers’ compensation laws.  The trial court granted the motion, and the widow appealed.  In her appeal, the widow argued that the exception to the workers’ compensation laws applied to her case, since the subcontractor was grossly negligent by failing to fix the high mast lights.  The subcontractor denied that they were grossly negligent and claimed they were shielded from liability under the workers’ compensation statutes.

The Court of Appeals determined that a jury would not have been able to find gross negligence.  The court looked to the definitions of simple negligence and gross negligence in prior appellate decisions.  Simple negligence is when a reasonable and prudent person acts in a certain way, knowing that what he or she is doing might cause injury to persons or property.  Gross negligence is when the person knows her or his actions would probably and most likely result in injury to persons or property.  The court stated that a “clear and present danger” must be imminent and more than the normal or usual peril for gross negligence to be present. 

The court of appeals applied the established standard of gross negligence to the known facts of the work project and the subcontractor’s history, which was clear of any prior accidents or near-misses due to lack of lighting.  The court reasoned that the nature of widening a highway involves lamps that were in use part of the time in different locations, and that many locations often remained dark out of necessity.  The court affirmed the trial court’s decision and allowed the summary judgment to remain.

The Florida wrongful death attorneys at Donaldson & Weston have the experience you need to pursue all avenues of legal relief available that will maximize the damages you deserve.  Construction cases are often complicated, and the path to holding an employer or subcontractor liable can be challenging.  Our attorneys will provide you the aggressive representation you need.  For a free, confidential consultation with a personal injury lawyer, call today at 772-266-5555.