In Florida, workers’ compensation is the exclusive remedy an employee has against an employer when he gets hurt in the course and scope of his job, except under very limited circumstances. Sometimes this can seem unfair when an accident is extremely severe. There is, however, an intentional tort exception to the rule favoring workers’ compensation.
In order to meet this exception, a plaintiff employee must demonstrate there is clear and convincing evidence on one of two points. The employee must prove either that the employer actually intended to injure the employee or else that the employer knew based on previous similar accidents or express warnings that there was a danger to the work condition and it was “virtually certain” to lead to injury or death to the employee. Not only that, but the plaintiff must show the employer hid this danger from the employee.
“Virtually certain” is a very tough standard that means that a plaintiff must demonstrate a particular danger will result in an accident every time or almost every time it comes into play. In a recent workers’ compensation immunity case, an employee’s hand was amputated by a piece of machinery he used at his workplace. At work, he made steel lockers. Machines were used to cut and bend the metal parts of the locker.
The employee was using a machine called the “Press Brake” in order to forcefully shape steel. The amputation happened because the employee accidentally left his hand in a die when he pressed the foot pedal.
At trial, the employer argued that the employee did not present “clear and convincing evidence” of the three elements necessary to prove that the intentional tort exception applied. The judge did not direct a verdict for the employer. The employer appealed.
In this case, the appellate court reasoned, the employee did show the employer’s conduct was negligent. For example, safety guards were not used and the pedal was coated in grease. Education on using the Press Brake was poor or nonexistent. There were also prior accidents on different machines owned by the employer. The employee did not, however, prove that there were prior similar accidents on the Press Brake.
Therefore, the employee was not able to show that the employer was “virtually certain” that the Press Brake would lead to an employee injury. Moreover, the employee did not show that he was unaware of the risk of the Press Brake or that the employer had intentionally misrepresented the danger of the Press Brake in order to prevent the employee from exercising his own judgment about whether or not to work with the machine.
The appellate court reasoned that certain types of work are obviously dangerous and therefore would not meet the intentional tort exception standard. The Press Brake was an obviously dangerous machine to operate. The employee had seen for himself that the machine could crush his hand hand because he saw steel being crushed in the Press Brake on many occasions. He was trained to use the machine and had operated it for over a month before the amputation occurred.
Therefore, the appellate court concluded that the trial court should have entered a directed verdict for the employer.
If you or a loved one have been hurt because of another person’s negligence or injured on the job, call the experienced South Florida worker’s compensation attorneys at Friedman, Rodman & Frank toll-free for a free consultation at (877) 448-8585.
What is Florida’s Dangerous Instrumentality Doctrine? South Florida Personal Injury Lawyers Blog, May 24, 2013
Florida Appellate Court Applies Slip and Fall Law Retroactively, South Florida Personal Injury Lawyers Blog, May 31, 2013