Cases

An employee is entitled to the same immunity in regards to a civil cause of action as the employer unless 1) employee acts with willful and wanton disregard, unprovoked physical aggression, or gross negligence, or 2) the employee and the injured employee are assigned primarily to unrelated works. See Section 440.11(1)(b)2, Florida Statutes. The unrelated works exception to the rule of general immunity applies only to co-employees. This exception only applies to employees expressly excluding the subcontractor who secured payment of compensation coverage for its employees.

The employee against whom a civil cause of action was filed in this case was employed by an employer who had secured workers’ compensation coverage. Accordingly, the unrelated works exception did not apply in this instance. This interpretation is separately confirmed by referring to Section 440.10(e), Florida Statutes (2014), which is a specific provision relating to immunity for subcontractors.

Since the unrelated works exception did not apply in this instance, the next question was whether gross negligence existed in this case. Gross negligence requires: 1) circumstances constituting an imminent or clear and present danger amounting to a more than normal or usual peril, 2) knowledge or awareness of the imminent danger on the part of the tortfeasor, and 3) an act or omission that evinces a conscious disregard of the circumstances. In summary judgment proceedings, the appellate court determined that a jury could not find that the alleged tortfeasor was grossly negligent on the facts in this record. The facts in this case created a possibility of harm but did not create a condition in which an accident would probably and most likely occur which is required to prove gross negligence. Such conduct did not rise to a conscious disregard of the consequences required for gross negligence.