Florida Workplace Accident Law and On The Job Injuries – What are Workers’ Options Under Florida Law When They Are Hurt at Work, Apart From a Workers Compensation Claim?

Casualty at work

Dramatization/Actor – Not An Actual Event

Workplace accidents happen on the job every day down in South Florida.  In fact, some of the most common causes of Miami Florida work-related accidents and work-related injuries can include the following:

  1. Slip and fall on food, produce, oil, water or some other substance on the floor;
  2. Trip and fall over bunched up carpet, rugs or matts, raised sidewalks and potholes in the parking lot;
  3. An object falls on you from above due to improper stacking or shelving;
  4. You carry or push an object that is too heavy (such as lifting a computer, heavy boxes or equipment);
  5. Repeated use a body part that sustains an acute injury (such as carpal tunnel syndrome by typing on a computer);
  6. Automobile or truck accident while driving a company truck, van or car (such as a taxi driver, limosine driver or pizza and paper delivery contractor);
  7. A restaurant chef or cook cuts or burns their hand, wrist or fingers;
  8. Inhalation or breathing in of toxins, dangerous gases or substances (such as asbestos from working in automotive repair shops, boiler making, construction, mines, mills, factories or pipe fitting);
  9. Injured by a co-worker or co-employee of another subcontractor or general contractor (GC) on a construction site, including crane accidents, ladder accidents, rooftop accidents, forklift accidents, scaffolding accidents, OSHA violation accidents and dump truck accidents).

Unfortunately, these types of work-related accidents can cause employees to suffer from a variety of work injures on the job, including broken bones (legs, hips, arms, knees, ankles, wrists, shoulders, vertebrae, feet and hands), spinal injuries (herniated and bulging discs, torn annulus, nerve injuries), head injuries (including post-concussive syndrome and traumatic brain injuries (TBI)), torn muscles, tendons and ligaments (including a torn labrum (SLAP tear) or rotator cuff), tendinitis, eye sight loss (including loss of an eye) and hearing loss, amputations, burn injuries (including electrocution), hypothermia due to the cold, and sickness or disease from exposure to gasses, dust, fibers or other toxic chemicals or debris (such as asbestosis, mesothelioma, lung cancer or black lung).  In fact, construction site accidents usually involve catastrophic injuries such as loss of limb, paralysis and even cases where workers are killed on the job.

Because workplace accidents are so common in South Florida and employers wish to lessen the occurrences of workers being hurt on the job, they really try to emphasize employee training and supervision.  However, in a lot of instances, the employer training and supervision is simply not enough.  It does not matter whether you work for Sea World, Disney World, Universal Studios, Publix, Home Depot, Lowes, K-Mart, Wal-Mart, Winn-Dixie, Wholefoods, Sedanos Supermarket, Burger King, McDonalds, Subway, Wendys, Starbucks, KFC, Panera Bread Company, Costco, Sams, Taco Bell, Target, CVS, Walgreens, Best Buy or any other Florida restaurant, hotel, supermarket, retail chain or shopping mall (such as Dadeland), workplace accidents can happen and employees are often searching for answers from a Florida Work Injury lawyer or Florida Workers Compensation Attorney, to guide them in their potential filing of a workers compensation claim for benefits that have been denied, delayed or underpaid.

When an employee is hurt  at work and suffers work-related injuries, they have several options at their disposal under Florida law:

  1. Elect to pursue a workers compensation claim against their employer (a no-fault system that will allow the employee to recover medical benefits and lost wages) and thereby eliminating any future claim against their employer;
  2. Elect to pursue a workers compensation claim against their employer but specifically including within the settlement and release that the employee still retains the right to pursue a claim against the employer under the intentional tort exception;
  3. Sue their employer in tort under the intentional tort exception to an employers workers compensation immunity provided under Florida law;
  4. Sue a co-employee in tort under the gross negligence or willful/wanton conduct exception to immunity;
  5. Sue a co-contractor in tort (horizontal relationship) under the gross negligence exception to immunity; or
  6. Bring a third party liability claim against any third party who may have caused or contributed to the workplace accident (such as a janitorial company for leaving floors wet while a security guard performs their duties; a manufacturer of a product that contains a product defect or was negligently designed).

The following is a discussion and analysis of Florida workplace accidents and some of the options an injured employee has under Florida law.

FLORIDA’S WORKERS COMPENSATION LAW UNDER CHAPTER 440 PROVIDES MEDICAL AND DISABILITY BENEFITS FOR WORKERS INJURED IN ACCIDENTS AT THE WORKPLACE: Florida’s workers compensation law (a n0-fault system) is a statutory creature governed by Chapter 440.  Under section 440.015, it is the legislatures intent that Florida’s Workers’ Compensation Law be interpreted so as to assure the quick and efficient delivery of disability and medical benefits to an injured worker and to facilitate the worker’s return to gainful reemployment at a reasonable cost to the employer…. and …. to ensure the prompt delivery of benefits to the injured worker.

Of note, Florida’s private employers who have four or more employees in a non-construction realm, or one employee in the construction realm (under Florida Statute 440.10(b), where a contractor sublets any part or parts of his or her contract work to a subcontractor or subcontractors, all of the employees of such contractor and subcontractor or subcontractors engaged on such contract work shall be deemed to be employed in one and the same business or establishment, and the contractor shall be liable for, and shall secure, the payment of compensation to all such employees, except to employees of a subcontractor who has secured such payment — the general contractor in this case would be considered a “statutory employer”), are required by law to obtain workers compensation insurance (unless they are exempt) to cover their employee’s for injuries, accidents or deaths that occur at the workplace and are related to some effect from the workplace, ie., on the job injuries that result from work accidents.

It should be noted that Florida Courts require that the work-related accident not only caused the injury, but also that the accident must be greater in significance and importance than any other single other cause, ie., the major contributing cause of the disability or need for work place accident treatment.  Given this standard, one who exacerbates a pre-existing condition may be denied workers compensation benefits for a work injury that occurred as a result of an on the job injury but was not the main cause of the work place injury.  In that scenario, an injured employee who was hurt at work may need to hire a Florida Workers Compensation lawyer to to file a workers compensation claim, in order to secure their medical and disability benefits that have been wrongfully denied or undervalued.

Some important definitions under Florida’s workers compensation law for employees hurt at work are the following:

  1. 440.02(1) (1) – Accident: means only an unexpected or unusual event or result that happens suddenly. Disability or death due to the accidental acceleration or aggravation of a venereal disease or of a disease due to the habitual use of alcohol or controlled substances or narcotic drugs, or a disease that manifests itself in the fear of or dislike for an individual because of the individual’s race, color, religion, sex, national origin, age, or handicap is not an injury by accident arising out of the employment. Subject to s. 440.15(5), if a preexisting disease or anomaly is accelerated or aggravated by an accident arising out of and in the course of employment, only acceleration of death or acceleration or aggravation of the preexisting condition reasonably attributable to the accident is compensable, with respect to any compensation otherwise payable under this chapter. An injury or disease caused by exposure to a toxic substance, including, but not limited to, fungus or mold, is not an injury by accident arising out of the employment unless there is clear and convincing evidence establishing that exposure to the specific substance involved, at the levels to which the employee was exposed, can cause the injury or disease sustained by the employee.
  2. 440.02(10) – Date of maximum medical improvement: means the date after which further recovery from, or lasting improvement to, an injury or disease can no longer reasonably be anticipated, based upon reasonable medical probability.
  3. 440.02(11) – Death: as a basis for a right to compensation means only death resulting from an injury.
  4. 440.02(13) – Disability: means incapacity because of the injury to earn in the same or any other employment the wages which the employee was receiving at the time of the injury
  5. 440.02(15)(a) – Employee: means any person who receives remuneration from an employer for the performance of any work or service while engaged in any employment under any appointment or contract for hire or apprenticeship, express or implied, oral or written, whether lawfully or unlawfully employed, and includes, but is not limited to, aliens and minors.
      1. 440.02(15)(b): employee also includes includes any person who is an officer of a corporation and who performs services for remuneration for such corporation within this state, whether or not such services are continuous.
      2. 440.02(15)(c): employee also includes (1) A sole proprietor or a partner who is not engaged in the construction industry, devotes full time to the proprietorship or partnership, and elects to be included in the definition of employee by filing notice thereof as provided in s. 440.05; (2) All persons who are being paid by a construction contractor as a subcontractor, unless the subcontractor has validly elected an exemption as permitted by this chapter, or has otherwise secured the payment of compensation coverage as a subcontractor, consistent with s. 440.10, for work performed by or as a subcontractor; (3) An independent contractor working or performing services in the construction industry; (4) A sole proprietor who engages in the construction industry and a partner or partnership that is engaged in the construction industry.

      3. 440.02(15)(d)an employee does not include (1) an independent contractor who is not engaged in the construction industry; (6) a volunteer, except a volunteer worker for the state or a county, municipality, or other governmental entity; )10) a taxicab, limousine, or other passenger vehicle-for-hire driver who operates said vehicles pursuant to a written agreement with a company which provides any dispatch, marketing, insurance, communications, or other services under which the driver and any fees or charges paid by the driver to the company for such services are not conditioned upon, or expressed as a proportion of, fare revenues.

  6. 440.02(17)(b)(2) – Employment: includes all private employments in which four or more employees are employed by the same employer or, with respect to the construction industry, all private employment in which one or more employees are employed by the same employer
  7. 440.02(19) – Injury: means personal injury or death by accident arising out of and in the course of employment, and such diseases or infection as naturally or unavoidably result from such injury. Damage to dentures, eyeglasses, prosthetic devices, and artificial limbs may be included in this definition only when the damage is shown to be part of, or in conjunction with, an accident. This damage must specifically occur as the result of an accident in the normal course of employment.

FLORIDA WORKERS INJURED ON THE JOB MAY RUN INTO EMPLOYER IMMUNITY FOR WORKPLACE ACCIDENTS CAUSED BY EMPLOYER OR CO-WORKER GENERAL NEGLIGENCE: under Florida Statute 440.11(1) – Exclusiveness of Liability, a worker or employee injured on the job is pretty much limited to a workers compensation claim for recovery of medical benefits and lost wages, one cannot recover benefits for pain and suffering arising out of a work place accident by way of a workers compensation claim.  Florida Statute 440.11(1) states that the liability of an employer prescribed in s. 440.10 shall be exclusive and in place of all other liability, including vicarious liability, of such employer to any third-party tortfeasor and to the employee, the legal representative thereof, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death.  However, there are some exceptions to this general rule of employer negligence and lawsuit immunity, including the following:

Florida Statute 440.11(1)(a) – employer failure to secure workers compensation insurance: if an employer fails to secure payment of compensation as required by this chapter, an injured employee, or the legal representative thereof in case death results from the injury, may elect to claim compensation under this chapter or to maintain an action at law or in admiralty (ie., you can bring a lawsuit against your employer for general negligence in order to recover pain and suffering damages for your workplace injuries) for damages on account of such injury or death. In such action the defendant employer may not plead as a defense that the injury was caused by negligence of a fellow employee, that the employee assumed the risk of the employment, or that the injury was due to the comparative negligence of the employee (ie., when an injured employee hires a Florida workplace accident injury lawyer, and they bring a lawsuit for disability or death benefits, the employer can not defend the case by stating the employee was negligent in causing the accident) .

Florida Statute 440.11(1)(b) – the intentional tort exception: when an employer commits an intentional tort that causes the injury or death of the employee. For purposes of this paragraph, an employer’s actions shall be deemed to constitute an intentional tort and not an accident only when the employee proves, by clear and convincing evidence, that: 

1. The employer deliberately intended to injure the employee; or

2. The employer engaged in conduct that the employer knew, based on prior similar accidents or on explicit warnings specifically identifying a known danger, was virtually certain to result in injury or death to the employee, and the employee was not aware of the risk because the danger was not apparent and the employer deliberately concealed or misrepresented the danger so as to prevent the employee from exercising informed judgment about whether to perform the work.

Florida Statute 440.11(b) – co-employee willful and wanton conduct or gross negligence: while the the same immunities from liability enjoyed by an employer shall extend as well to each employee of the employer when such employee is acting in furtherance of the employer’s business and the injured employee is entitled to receive benefits under this chapter, such fellow-employee immunities shall not be applicable to an employee who acts, with respect to a fellow employee, with willful and wanton disregard or unprovoked physical aggression or with gross negligence when such acts result in injury or death or such acts proximately cause such injury or death, nor shall such immunities be applicable to employees of the same employer when each is operating in the furtherance of the employer’s business but they are assigned primarily to unrelated works within private or public employment.

Florida Statute 440.11(b) – officer or managerial employee conduct that is a violation of law: while the same immunity provisions enjoyed by an employer shall also apply to any sole proprietor, partner, corporate officer or director, supervisor, or other person who in the course and scope of his or her duties acts in a managerial or policymaking capacity and the conduct which caused the alleged injury arose within the course and scope of said managerial or policymaking duties and was not a violation of a law, whether or not a violation was charged, for which the maximum penalty which may be imposed does not exceed 60 days’ imprisonment as set forth in s. 775.082 (ie., if the managerial employee’s conduct violates the law and the penalty exceeds 60 days in jail, workers compensation immunity may not apply to this employee).

Florida Statute 440.10(e) – sub-contractor gross negligence on a construction site or job: a subcontractor providing services in conjunction with a contractor on the same project or contract work is not liable for the payment of compensation to the employees of another subcontractor or the contractor on such contract work and is protected by the exclusiveness-of-liability provisions of s. 440.11 from any action at law or in admiralty on account of injury to an employee of another subcontractor, or of the contractor, provided that:

1. The subcontractor has secured workers’ compensation insurance for its employees or the contractor has secured such insurance on behalf of the subcontractor and its employees in accordance with paragraph (b); and

2. The subcontractor’s own gross negligence was not the major contributing cause of the injury.

RECENT EXAMPLES OF INJURED OR KILLED WORKERS AND THE APPLICATION OF THE EXCEPTIONS WITHIN LIABILITY LAWSUITS BROUGHT AGAINST EMPLOYERS, CO-CONTRACTORS AND CO-WORKERS: the following recent cases are some examples of the application of the standards referenced above, when a worker that is injured or killed by way of a Florida workplace accident, brought a lawsuit against their employer for wrongful death or tort damages (ie., pain and suffering, as these damages are not recoverable in a Florida workers compensation claim):

Figueroa v. Delant Const. Co., 118 So.3d 272 (Fla. 3d DCA 2013): this case involved a construction worker that was allegedly injured by way of a Florida workplace accident, and he brought a lawsuit against his construction company employer (considered a statutory employer)  under the intentional tort exception (ie., requires conduct that is virtually certain to cause injury or death).  The Court granted summary judgment to the employer, of which the Third District Court of Appeal (governs workplace accidents that occur in Miami-Dade County Florida) affirmed the decision.  The appeals court noted that there were no prior similar accidents or a specific warning explicitly identifying a known danger, which would thereby establish that the construction company employer engaged in conduct it knew was “virtually certain to result in injury or death” to the employee, the evidence demonstrated that the danger or risk was apparent to the employee, and there was no concealment or misrepresentation by the construction employer. Therefore, the Court ruled that the employee could not establish as a matter of law that the intentional tort exception to workers’ compensation immunity was applicable, and that the trial court properly entered final summary judgment in favor of the construction company employer.

Boston ex rel. Estate of Jackson v. Publix Super Markets, Inc., 112 So.3d 654 (Fla. 4th DCA 2013): this case involved a Publix Supermarket worker that was killed on the job when a co-worker accidentally backed his tractor trailer up to the warehouse door and struck the employee.  The estate of the worker that was killed on the job had a Florida workplace injury lawyer bring a  wrongful death lawsuit against Publix under the intentional tort exception to the workers compensation immunity statutory framework, and a gross negligence suit against the co-worker in order to get past Publix’s employer immunity for injury or death caused by general negligence.

The Court noted that the tractor was equipped with backup alarms, although an inspection after the incident revealed that the backup alarm on the tractor was not working, to which the co-employee testified that he knew the backup alarm was inoperable and had not been working for months. The Court further noted that the co-employee did not report it to Publix maintenance, nor did he fill out inspection reports designed to call attention to any maintenance problems, that Publix’s policy for safety inspections and maintenance would have required that the tractor trailer be taken out of service to repair the backup alarm, but the tractor trailer was overdue for safety inspections, and that the tractor trailer had been in for other maintenance, and that the maintenance staff should have checked the backup alarm and taken the tractor out of service to repair it.

The Court also noted that no prior accidents had occurred at the distribution center involving the tractors, with or without a failed backup alarm, in which an employee was pinned between the back of the trailer and the loading dock or where a tractor-trailer backed into an employee — Publix apparently knew of three prior accidents at the distribution center, but none involved a tractor, and none occurred in backing up a vehicle.  Apparently, following this incident, Publix was cited by OSHA for having an inoperative backup alarm on the tractor trailer, to which the OSHA report stated that Publix “did not furnish to each of [its] employees employment and a place of employment which were free from recognized hazards that were causing or were likely to cause death or serious physical harm to employees….”

The Court affirmed the trial court’s granting of summary judgment to the employer as to the intentional tort exception to general employer immunity for general negligence — the trial court ruled that even taking the facts in the light most favorable to Plaintiff, the evidence fails to establish that Publix engaged in conduct that Publix knew, based on prior similar accidents or on explicit warnings specifically identifying a known danger, was virtually certain to result in injury or death to the decedent…there was no concealment of the risks involved … the danger should have been obvious to the decedent … and that this tragic accident was just an act of simple negligence (ie, the virtually certain standard is so high that the conduct must be so egregious to overcome general employer immunity).

Of note, however, the Third District did reverse on the gross negligence claim against the co-employee, finding that material issues of fact existed as to whether the co-employees conduct constituted gross negligence that caused injury of death.  The Court noted that “Gross negligence … is defined as an act or omission that a reasonable, prudent person would know is likely to result in injury to another,” while ‘simple negligence is that course of conduct which a reasonable and prudent man would know might possibly result in injury to persons….’ ”  The Third District also noted another definition of gross negligence by a sister court, ie., “[A] finding of gross negligence requires the following: [F]irst of all, gross negligence presupposes the existence of a “composite” of circumstances which, together, constitute an “imminent” or “clear and present” danger amounting to more than normal and usual … peril….Secondly, gross negligence must be predicated on a showing of chargeable knowledge or awareness of the imminent danger spoken of. And thirdly, the act or omission complained of must occur in a manner which evinces a “conscious disregard of consequences,” as distinguished from a “careless” disregard thereof (as in simple negligence) or from the more extreme “willful or wanton” disregard thereof (as in culpable or criminal negligence).”

Villalta v. Cornn Intern., Inc., 110 So.3d 952 (Fla. 1st DCA 2013): in this case, the estate of deceased drywall worker (the employee fell from a scaffold and sustained fatal injuries) filed a negligence action against a drywall subcontractor that had subcontracted drywall work on the construction project to the injured worker’s employer. The Circuit Court in Duval County entered summary judgment in favor of the drywall subcontractor on the basis of statutory immunity as provided under Florida’s Workers’ Compensation Law. The estate appealed, to which the First District Court of Appeal affirmed the summary judgment, holding that the intentional tort exception, and not the gross negligence exception to tort immunity under Florida’s Workers’ Compensation Law, governed the negligence action.

The Court noted that because the general contractor had contracted out the drywall work to another subcontractor, who then subcontracted out the work to the injured worker’s employer, that the subcontractor of the general contractor became the injured worker’s statutory employer under Florida Statute 440.10(1), and thus was immune from a lawsuit (ie., general negligence).

This case sets forth a good discussion as to whether the intentional tort or the gross negligence exception applies for workplace accidents and injuries on a construction site. The killed worker’s estate brought a lawsuit against several parties, including the subcontractor that had contracted the drywall work to the employee’s employer (ie., a vertical relationship under the same subcontract). The drywall subcontractor asserted its immunity from suit under section 440.11(1). Under this section, particularly §440.11(1)(b), an exception to the statutory immunity applies if an intentional tort was committed (which the Court found was not). The estate relied on a theory of gross negligence and asserted that the suit could be brought against the drywall subcontractor pursuant to section 440.10(1)(e)(2), which provides section 440.11 immunity for a subcontractor sued by the employee of another subcontractor unless the first subcontractor’s own gross negligence was the major contributing cause of the injury. The Court noted, however, that reliance on the gross negligence provision in section 440.10(1)(e)(2), ignores the distinction between a vertical subcontracting relationship and upon which section 440.11(1) immunity applies, and the horizontal type of subcontractor relationship to which section 440.10(1)(e)( 2) may be invoked.

The Court noted that a vertical relationship is created when a contractor sublets part of the work to a subcontractor, who then further sublets work to another subcontractor. That is the situation in the present case. In contrast, a horizontal relationship exists between subcontractors engaged on the same construction project but under different subcontracts outside the vertical chain of a contractor to subcontractor to sub-subcontractor. The immunity granted to subcontractors outside that vertical chain is governed by section 440.10(1), including the section 440.10(1)(e)(2) provision for gross negligence. The immunity for subcontractors within a vertical relationship, as in the present case, is governed by section 440.11(1), with the section 440.11(1)(b) intentional tort exception. The Court held that because the evidence submitted by the injured worker’s estate in this case did not support an intentional tort, and because the subcontractor that was sued was in a vertical subcontracting relationship with the employee’s drywall employer and was thus his statutory employer for workers’ compensation benefits, the drywall subcontractor was entitled to section 440.11(1) immunity. The Court noted that the gross negligence exception in section 440.10(1)(e)(2) did not apply in this situation, and that summary judgment in the civil suit was properly entered for the drywall subcontractor in accordance with section 440.11(1).

Villalta v. Cornn Intern., Inc., 109 So.3d 278 (Fla. 1st DCA 2013): in a companion case to the one above, the drywall employee killed on a construction site also brought suit against the HVAC contractor (heating, vacuum, air conditioning) on the job site, to which the First District noted that this was a horizontal relationship (as opposed to a vertical relationship in the case above), and that the immunity applicable was under Florida Statute 440.10 (ie, the gross negligence exception of a fellow contractor) as opposed to Florida Statute 440.11 (ie., the intentional tort exception for a vertical contracting relationship).  As such, the Court held that disputed issues of material fact existed as to whether the HVAC contractor was grossly negligent in creating and then failing to cover cut-out in floor at construction site where drywall subcontractor’s employee was working on a scaffold, or to warn of hazard created by the cut-out, such that the HVAC subcontractor was not entitled to statutory immunity as provided under Florida’s Workers’ Compensation Law, and thus precluding summary judgment in civil action for damages upon the death of the employee when he fell off scaffolding.

List Industries, Inc. v. Dalien, 107 So.3d 470 (Fla. 4th DCA 2013): in this case, an employee that suffered an amputation of a significant portion of his dominant hand while operating a piece of machinery brought an intentional tort claim against his employer. The Circuit Court for the Seventeenth Judicial Circuit in Broward County entered judgment on a jury verdict for the employee, to which the employer appealed. The Fourth District Court of Appeal (governs Broward and Palm Beach Counties) held that the employee did not establish a personal injury claim under the intentional tort exception to Florida’s workers’ compensation law’s exclusivity provision.  The Court ruled that the injured employee did not establish a personal injury claim under the intentional tort exception to Florida’s workers’ compensation law’s exclusivity provision — although the employee proved that there were prior accidents on different machines which performed different functions, the injured employee did not prove that there were prior “similar” accidents on the machine at issue, and thus, the employee did not prove that it was “virtually certain” that operating the machine would result in injury, as there had been no prior accidents on the machine, and the employee did not prove that he was unaware of risk and that the danger was not apparent, given that it was obvious to the injured employee that the machine could crush a hand from the times he saw steel being inserted into machine.

Gorham v. Zachry Indus., Inc., 105 So.3d 629 (Fla. 4th DCA 2013): in this case, an employee claims he was injured while working on a construction project for his employer, who contracted with Florida Power & Light (“FPL”) to build a natural gas plant in Loxahatchee, Florida. During the process of setting a wall at the plant, the employee was injured and apparently had a Florida workplace accident injury lawyer bring a personal injury lawsuit against his employer alleging an intentional tort had occurred, in order to avoid his employer’s statutory worker’s compensation immunity from tort.  The Court noted that the employee was working as a rigger on the FPL power plant construction site, when on  the day of the accident, the crew was attempting to lift and place a nine-ton wall.  Apparently, two cranes were available to lift the large pre-fabricated wall into place. A tag line to keep the wall from swaying as the crane lifted the wall was attached to the wall, and because of the danger of swaying, attention to the wind speed was very important.

The Court further noted that on the morning of the incident, the injured employee participated in the first lift, in which the wall was raised slightly. After the wall was vertical, the injured employee walked over to help others disconnect shackles off the wall, to which the crane operator began to move the wall alongside the cooling tower near the site, and once the wall got into that area, the wind was blowing.  The injured employee tried to stabilize the wall, which then began dragging him.  The crane operator sounded the emergency horn to signal that everyone was to let go and run, although the injured employee did not let go as he grabbed a rope around his arm and wrapped his arm around the tag line. The employee received significant injuries to his arm in the process. Apparently, the crane operator waited for the wind to die down before he made a second attempt, he then checked the wind again which was varying between 5 and 25 mph, and the wind continued to cause difficulties in completing the second lift.

The trial court entered summary judgment for the employer, which was affirmed by the Fourth District.  The District Court noted that the elements which the employee must prove for the intentional tort exemption to workers compensation immunity, are: 1) employer knowledge of a known danger, based upon prior 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) deliberate concealment or misrepresentation by the employer, preventing employee from exercising informed judgment as to whether to perform the work.  The District court held that there was no evidence to support the requirement that “[t]he employer engaged in conduct that the employer knew, based on prior similar accidents or on explicit warnings specifically identifying a known danger, was virtually certain to result in injury or death to the employee.”

Moral of the Story: if you are a Florida employee injured at your office or somewhere else while in the course and scope of your employment, whether the workplace accident happens in Hollywood, Dania, Weston, Plantation, Aventura, Miami Beach, Bal Harbour, Coral Gables, West Kendall, Homestead, the Florida Keys, Cutler Ridge, Palmetto Bay, Orlando, Tampa, Fort Myers, Naples, Jacksonville, Stuart, Jupiter or another area within Miami, Fort Lauderdale or Palm Beach, know that there are many options available under Florida law that may require the retention of a Miami Florida workers compensation lawyer or a Florida workplace accident injury lawyer, given the many complexities involved when an employee is hurt at work and suffers a work-related accident or work-related injury while on the job.

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