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Moradiellos v. Community Asphalt Corporation, Inc., Case No. 3D14-794 (3rd DCA)

In Moradiellos, the Third District affirmed the trial court's summary judgment entered in favor of the defendant general contractor based on worker's compensation immunity. The lawsuit arose after the plaintiff's decedent, an asphalt surveyor, was struck and killed while working on the Florida turnpike. One of the decedent's crewman reversed a dump truck without outside assistance, against company policy, and ran over the decedent when the decedent was facing away from the truck and speaking on the radio to his supervisor. The decedent's wife filed suit against several parties, including the decedent's employer, the general contractor on the project. The general contractor moved summary judgment based on worker's compensation immunity, and the trial court granted the motion. The appeal followed.

The Third District noted that the worker's compensation system is designed to "provide a strict liability system of compensation for injured workers in which the worker receives the guarantee of rapid compensation for work related injuries but in return is precluded from bringing a common-law negligence action. The employer is provided immunity from common law negligence suits by the employee." The immunity, however, is subject to various exceptions.

The plaintiff filed suit against the general contractor under the intentional torts exception found in section 440.11(1)(b), Florida Statutes. That statutory provision permits liability when an employer commits an intentional tort that causes injury or death of an employee. To establish the intentional tort exception, the employee must prove by clear and convincing evidence that (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, (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 Moradiellos, the Third District found that a trier of fact could not, based on the undisputed facts in the summary judgment record, find that the general contractor committed an intentional tort that falls within the statutory exception to the worker's compensation immunity. The facts did not support a reasonable inference that the general contractor was virtually certain its conduct would cause injury. The Third District noted that there were no facts in the record suggesting there were prior similar accidents, nor did the record reflect any explicit warnings identifying a known danger which would thereby establish the contractor was engaged in conduct it knew was virtually certain to result in injury or death.

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