Florida Appellate Court Allows Lawsuit to Proceed Against Negligent Coworker

622701_um_which_way_is_da_shipping_and_receiving__oh.jpgA Florida appellate court recently dealt with the differences between personal injury lawsuits brought against a decedent’s employers versus his coworker who caused his injury/death. In this case, the defendant was a spotter driver who used tractors to move trailers for purposes of loading and unloading merchandise. One morning, he was called to the loading dock and he arrived by tractor. Another worker was next to him in another tractor. The defendant drove to the dock and got out. Meanwhile the other worker also parked in the loading dock area and got out of the tractor.

The defendant assumed the worker was going to talk to another driver, hooked the tractor to a trailer and got back into his tractor. He backed up the trailer and felt a bump. There was no way for the defendant to see what happened behind the trailer and the backup alarm was not working. The defendant later testified he knew the backup alarm wasn’t working. The other worker had walked behind the trailer and had been crushed between the back of the trailer and the warehouse dock pad.

The defendant testified that he had not reported that the backup alarm was not working to the employer’s maintenance group. The employer’s safety protocol would have required the tractor be taken out of service to repair the backup alarm. On routine checks, the maintenance staff had not, apparently, checked the alarm themselves.

The Occupational Safety and Health Administration (OSHA) cited the employer for the inoperative backup alarm. Meanwhile, the decedent’s representative filed a lawsuit against the employer and the driver that caused the death, alleging an intentional tort against the employer and gross negligence against the driver.


Both defended themselves on the grounds of workers’ compensation immunity. In Florida, workers’ compensation is the exclusive remedy for work injuries except in certain special cases where a plaintiff can prove that:
(1) a defendant engaged in actions that it knew based on prior similar accidents or explicit warnings would be nearly certain to result in injury or death,
(2) the employee was unaware of the risk because the danger wasn’t obvious and
(3) the employer concealed the danger in order to prevent an employee from exercising his or her judgment about whether to do the work. If a plaintiff cannot meet this stringent standard of “virtual certainty,” it is limited to workers’ compensation benefits as its remedy.

After a period of discovery, the two defendants filed motions for summary judgment. This is a type of motion that allows the judge to make a disposition in a case without the fact-finding participation of a jury.

In this case, the court did grant the motions. It concluded that the evidence did not show the employer engaged in actions it knew were certain to result in injury or death. It further concluded there was no concealment of risk and the decedent should have seen the danger. Therefore workers’ compensation immunity applied to this situation.

The decedent’s representative appealed. The District Court of Appeal explained that the goal of the policy is to avoid lawsuits from the beginning, not just to prevent an adverse verdict against employers and coworkers. In this case, there were prior accidents, but they were not similar to the accident involved in this case. Also, lack of a backup alarm didn’t lead to injury with virtual certainty.

Accordingly, the appellate court affirmed the summary judgment motion against the employer. However, it noted that the same “virtual certainty” standard did not necessarily apply to the driver who drove into the decedent. Rather, the standard was “gross negligence” –conduct that a reasonable person would know would probably hurt someone else.

In this case, the appellate court said, the circumstances were ambiguous as to whether the other driver acted with gross negligence. Therefore, the appellate court reversed the summary judgment ruling with respect to the driver.

Our law offices are experienced both in workers’ compensation and personal injury litigation. Call the knowledgeable South Florida workers’ compensation attorneys at Friedman, Rodman & Frank toll-free for a free consultation at (877) 448-8585.

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Florida Appellate Court Reviews Issue of Privacy in Auto Accident Case, South Florida Personal Injury Lawyers Blog, May 10, 2013
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