Cases

On appeal, appellate court reviewed de novo the final summary judgment in favor of defendant employer based on workers' compensation immunity.

Plaintiff's employer is provided immunity from common law negligence suits.  In order to be liable, the plaintiff's employer must be guilty of conduct which was "virtually certain" to result in injury or death in order to overcome this immunity.  This increased standard of conduct means that the injured employee/plaintiff must show that a given danger will result in an accident every or almost every time.  The current immunity statute provides an exceptionally narrow exclusion from immunity requiring intentional deceitful conduct on the part of the employer.

In order to overcome immunity, three elements must be proved by the injured employee: 1) 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, and 2) the employee was not aware of the risk because the danger was not apparent, and 3) the employer deliberately concealed or misrepresented the danger so as to prevent the employee from exercising informed judgment about whether to perform the work.  In this case, there was no evidence that prior similar accidents had occurred.  Prior accidents had occurred but not similar to the accident in this instance.  The prior accidents did not concern a similar danger as those involved in this accident. The accident in this instance was caused by the lack of a backup alarm on the truck that backed into the plaintiff/employee.  The court pointed out that the lack of a backup alarm does not with virtual certainty result in injury.  While the lack of a backup alarm would make an injury more likely, the statute demands far more.

The standard for immunity of a fellow employee of the deceased employee is different than that of the employer.  The standard for immunity for the co-employee is as described in Section 440.11(1), Florida Statutes, which does not adopt the same virtual certainty standard for injury that applies to the employer directly.  The standard for co-employee liability is gross negligence which is defined as an act or omission that a reasonably prudent person would know is likely to result in injury to another.  Court in this case determined that there were factual issues concerning the co-employee's liability precluding the entry of a summary judgment in favor of the plaintiff/employee against a fellow co-employee defendant.  Court points out elements as to conduct demonstrating gross neglience.