Bourassa v. Busch Entertainment Corporation d/b/a Busch Gardens
31 FLW D1011
In proving the intentional misconduct exception to workers’ compensation immunity, the injured employee must show that the employer either exhibited a deliberate intent to injure or engaged in conduct which is substantially certain to result in injury or death. In applying the "substantial certainty of injury" test, the question is not what the specific employer knew or did not know but rather whether a reasonable person could understand that the employer’s conduct was substantially certain to result in injury or death. See Turner v. PCR, Inc., 74 So. 2d 683 (Fla. 2000). The conduct by the employer must be worse than gross negligence. The conduct warranting such an exception characteristically involves a degree of deliberate or willful indifference to employee safety. (Statutory change defining “intentional misconduct”)
Court in this case determined that the conduct of the employer was not such as to constitute substantial certainty of injury. The employer did not ignore evidence of prior accidents, injuries, or known safety standards. The employer had a training program in place, and the injured worker was fully trained in the job procedures that she was to perform. There was no evidence that the employer concealed dangers in the work to be performed.
Employee’s affidavit in opposition to Employer’s Motion for Summary Judgment indicated that revised safety procedures, if adopted by the employer, would have prevented the accident in this instance. However, the court determined that this affidavit was not sufficient to defeat employer’s Motion for Summary Judgment. The test for substantial certainty of injury is not whether the death or injury was preventable and the employer failed to make the conditions at work "more safe." Failure to alter safety procedures adopted by the employer does not rise to the level established by case law as sufficient to establish deliberate indifference to employee safety.
The injured worker’s expert affidavit also listed the various risks attendant to the employee’s work and concluded that it was inevitable that someone would eventually be injured because of these risks. Court determined, however, that such testimony or evidence is not sufficient to establish intentional misconduct on the part of the employer. Dissenting opinion.