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
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.
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.