Ramsey et al v. Dewitt Excavating, Inc. and Gubbins
51 FLW D1366
Deceased plaintiff's (employee's)personal representative sued plaintiff's employer and co-employee for a workplace accident that resulted in the deceased employee's death. Trial court granted Motion for Summary Judgment in favor of Defendant employer and co-employee. On appeal, Summary Judgment in favor of employer affirmed. Cause of action against co-employee reversed in view of the conflict in testimony.
Employer responsible for damages in this case if the accident was caused by an intentional tort. The elements of an intentional tort are: 1) employer knowledge of a known danger based upon similar accidents or explicit warnings specifically identifying the danger that was virtually certain to cause injury or death to the employee; 2) the employee was not aware of the danger because it was not apparent; and 3) there was a deliberate concealment or misrepresentation by the employer preventing the employee from exercising an informed judgment as to whether to perform the work that resulted in the employee's death. In this case, there was no evidence indicating that the deceased employee was not aware of the danger in operating the piece of equipment that resulted in his death. There are some types of machines that are so obviously inherently dangerous that the danger must be obvious to anyone working in the vicinity of where the machine was being utilized.
In order to establish a claim against a co-employee, evidence was required to establish each of the following three elements: 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 co-employee, and 3) an act or omission on the part of the co-employee that evidences a conscious disregard of the consequences. In this case, the co-employee had directed the deceased employee into the machine in question for cleaning and later activated the machine without utilizing any of the safety systems normally utilized by workers using this equipment.