In a recent article, the Sun Sentinel examined the sudden rise in the number of workplace fatalities in Broward County, Florida. Although the post-recession rejuvenation of South Florida’s construction market is welcome news economically, increased demand for construction work has, according to sources in the story, led to the hiring of more inexperienced workers and failure to adhere to basic safety precautions, such as the installation of guardrails and the proper rigging of worksite machinery. Alarmingly, there have been 11 work-related deaths in Florida so far this year, including six in Broward County since the beginning of June. The most recent death occurred at a car dealership construction site in Fort Lauderdale, where a beam collapsed and knocked several workers off a ladder. In response to this sudden rise in fatalities, local members of Safety Alliance for Excellence (SAFE), a collaborative organization of contractors based in Miami, are set to meet with officials from the local office of the federal Occupational Safety & Health Administration to discuss the measures that should be taken to address the problem.
Like almost all other states, Florida has a workers’ compensation scheme that governs liability and financial recovery for injuries arising out of and in the course of employment. The provisions of Florida’s workers’ compensation scheme are codified in Chapter 440 of the Florida Statutes. Pursuant to § 440.10, all contractors and subcontractors engaged in either private or public construction in the state are required to maintain workers’ compensation insurance coverage for their employees. Pursuant to § 440.11, the workers’ compensation scheme is the exclusive remedy for liability arising from injury or death resulting from workplace accidents. It immunizes employers from common law negligence liability.
There are only two narrow exceptions from the exclusivity provision of the scheme. These are if the employer fails to secure payment as provided by the provisions of the workers’ compensation scheme, or if the employer commits an intentional tort causing the injury or death of the employee. See §§ 440.11(a)-(b). For the purposes of the second exception, an employer’s actions are deemed to constitute an intentional tort only if they are either deliberately intended to injure the victim or constitute conduct the employer knew, based on prior similar accidents or explicit warning, was virtually certain to result in injury or death. Furthermore, the employee must have been unaware of the attendant risks because the danger was either unapparent or deliberately concealed or misrepresented by the employer. See § 440.11(b).
This intentional tort exception was originally the creation of judicial decision-making. See Fisher v. Shenandoah Gen. Constr. Co., 498 So.2d 882 (Fla.1986); Lawton v. Alpine Engineered Products, Inc., 498 So.2d 879 (Fla. 1986). However, following the Supreme Court of Florida’s decision in Turner v. PCR, Inc., 754 So.2d 683 (Fla.2000), which held that the intentional tort exception applied when an employer’s acts were substantially certain to lead to injury or death as shown through a preponderance of objective evidence, the Florida Legislature elected to codify the intentional tort exception with two important tweaks. First, the employee must prove the applicability of the exception using “clear and convincing” evidence. Second, the employee must show that the act was virtually, rather than substantially, certain to lead to injury or death. § 440.11(b). Although an employee need not prove that an employer had an actual subjective intent to harm, the legislature’s iteration of the exception places a heavy burden on a litigant hoping to obtain recovery beyond that provided by workers’ compensation.
Although the lessons learned in the wake of these current workplace fatalities will hopefully lead to improved education and safety for workers, workplace injuries will likely never be completely eliminated. While workers’ compensation insurance provides speedy and comprehensive recovery for many injured workers, this result is not certain, especially when the injury leads to death. Accordingly, one may need to find an alternative avenue for recovery by navigating the aforementioned exceptions to workers’ compensation applicability.
Considering the narrowness of these exceptions, however, one should enlist the advice of legal counsel with experience in workplace liability litigation if he or she has suffered a workplace injury that workers’ compensation inadequately compensates. The South Florida workplace injury attorneys at Frankl & Kominsky have extensive experience is this area of the law and are ready to provide the legal support you may need. If you would like a free consultation, click here or call 1-855-800-8000.