KATHY L. THOMPSON, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF GRANT CHARLES THOMPSON, DECEASED, AND FOR AND ON BEHALF OF JESSICA THOMPSON, JULIE THOMPSON, MELISSA MARIE THOMPSON, SURVIVING MINOR CHILDREN OF GRANT CHARLES THOMPSON, AND KATHY L. THOMPSON, INDIVIDUALLY, APPELLANT,
v.
COKER FUEL, INC., A FLORIDA CORPORATION, JERRY H. MELENDY, JR., NORMAN SMITH AND LEROY BROCK, APPELLEES
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Thompson's estate and surviving children appealed a summary judgment dismissing their wrongful death action against Thompson's employer and managerial co-employees, claiming they failed to provide required safety equipment. The court affirmed, holding that workers' compensation immunity bars the action because the appellees did not exhibit deliberate intent to injure or engage in conduct substantially certain to cause injury or death.
Workers' compensation provides the sole remedy and bars the wrongful death action. Statutory immunity applies because the record contains no evidence of the employer's or co-employees' intent to injure Thompson or engage in conduct substantially certain to result in his injury or death. The fact that the death was preventable through additional safety measures does not overcome the statutory immunity; the controlling test requires a showing of deliberate intent or conduct substantially certain to cause injury.
[1] Workers' compensation provides the sole remedy for work-related injuries or death, barring wrongful death actions against employers and supervisors.
[2] Employers and supervisors are granted immunity from tort actions for work-related injuries or death unless they exhibit a deliberate intent to injure or engage in conduct…
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Join FLexlaw to unlock all legal intelligence“Before an employer loses this statutory immunity, the employer must either exhibit a deliberate intent to injure or engage in conduct which is substantially certain to result in injury or death.”
Establishes the legal standard for overcoming workers' compensation immunity under § 440.11(1)
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Join FLexlaw to unlock all legal intelligenceGrant Charles Thompson died while performing a "hot cut" on a propane gas line—cutting an active gas line—during the course of his employment at Coker…
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BLUE, Judge.
Kathy L. Thompson, as personal representative of the estate of Grant Charles Thompson (Thompson), individually, and on behalf of Thompson’s three minor children, appeals an adverse summary judgment in a wrongful death action against Thompson’s employer and three managerial co-employees. We affirm because the circuit court correctly determined that workers’ compensation provides the sole remedy and bars the wrongful death action.
Section 440.11(1), Florida Statutes (1989), grants employers and supervisors immunity from tort actions for work-related injuries or death. Before an employer loses this statutory immunity, the employer must either exhibit a deliberate intent to injure or engage in conduct which is substantially certain to result in injury or death. See Fisher v. Shenandoah Gen. Constr. Co., 498 So. 2d 882 (Fla.1986). The 1988 amendment to this statute extended the same immunity to co-employees engaged in managerial or policy-making decisions. See Eller v. Shova, 630 So. 2d 537 (Fla.1993).
Thompson died while in the course and scope of his employment for Coker Fuel when he performed a “hot cut” on a propane gas line located in a shallow hole dug to uncover the gas line. (A “hot cut” occurs when a line carrying propane gas is cut while the gas continues to flow.) Thompson failed to cleanly cut the gas line and while attempting to complete the cut, propane gas filled the hole. Thompson was overcome by the gas, asphyxiated, and died.
The appellant alleged that Thompson’s tragic death could have been averted had the employer and managerial co-employees provided and required Thompson to use existing safety methods, including an available gas cut-off valve. However, the test in determining whether workers’ compensation immunity applies is not whether the death or injury was preventable. The circuit court applied the proper test when it determined that the record contained no evidence of the employer’s or co-employees’ intent to injure Thompson or engage in conduct substantially certain to result in Thompson’s injury or death. Thompson’s death was clearly not the expected or intended result in the hot cut procedure. The hot cut method of gas line repair was accepted and performed by the appellees, and had been performed thousands of times without the tragic result that occurred here.
We agree with the analysis of Judge Joanos in Emergency One, Inc. v. Keffer, 652 So. 2d 1233 (Fla. 1st DCA 1995):
It is particularly significant that both of those cases1 share the common thread of a strong indication to deceive or cover up the danger involved, so that the employees had no way to apprise themselves of the dangers involved and thereby make a reasoned judgment as to their course of action. In contrast, while in this case there is evidence of a dangerous work environment, there was no competent evidence to support a view of intentional misrepresentation of the dangers involved. Similarly, although there was an allegation that safety precautions were withheld, there was no evidence of a concerted intentional effort to do so.
652 So. 2d at 1235 (footnote supplied).
Thompson was engaged in potentially dangerous work, but there is no evidence of the appellees’ deception or intent to injure him. The result in this case conforms with the workers’ compensation statutory scheme as interpreted by the Florida Supreme Court in Eller and Fisher, and accordingly, we affirm.
FRANK, A.C.J., and FULMER, J., concur. . Cunningham v. Anchor Hocking Corp., 558 So. 2d 93 (Fla. 1st DCA), review denied, 574 So. 2d 139 (Fla.1990), and Connelly v. Arrow Air, Inc., 568 So. 2d 448 (Fla. 3d DCA 1990), review denied, 581 So. 2d 1307 (Fla.1991).
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Turner v. PCR, Inc., 754 So. 2d 683 (Fla. 2000)…s. See, e.g., Welsh, 659 So. 2d at 1236 (holding that, to survive a motion for summary judgment, a complaint sounding in intentional tort must allege that the employer knew that injury or death was a virtual certainty); Thompson v. Coker Fuel, Inc., 659 So. 2d 1128, 1180 (Fla. 2d DCA 1995) (finding that the employee’s death was not “the expected or intended result” of the procedure that killed him). As noted above, this subjective evaluation appears identical to the first part of the disjunctive test adopted i…
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EAC USA, Inc. v. Kawa, 805 So. 2d 1 (Fla. 2d DCA 2001)…’s conduct was substantially certain to result in injury to the employee. The supreme court in Turner adopted the objective test. In doing so, the court rejected those cases including the decision of this court in [*5] Thompson v. Coker Fuel, Inc., 659 So. 2d 1128 (Fla. 2d DCA 1995), which required proof that the employer had actual intent to injure the employee. The supreme court explained that requiring proof of actual intent effectively eliminated the substantial certainty test as an alternative basis for…
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Bourassa v. Busch Ent. Corp., 929 So. 2d 552 (Fla. 2d DCA 2006)…agree. As discussed above, the question in this case is whether Busch Gardens engaged in conduct that was substantially certain to result in injury or death. The test is not whether the death or injury was preventable. Thompson v. Coker Fuel, Inc., 659 So. 2d 1128, 1129-30 (Fla. 2d DCA 1995). Thus, an employer’s knowledge of the risks of dangerous activities and its failure to make the conditions “more safe” is not sufficient to establish an exception to workers’ compensation immunity in the absence of some e…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Fisher v. Shenandoah Gen. Constr. Co., 498 So. 2d 882 (Fla. 1986)
- Eller v. Shova, 630 So. 2d 537 (Fla. 1993)
- Cunningham v. Anchor Hocking Corp., 558 So. 2d 93 (Fla. 1st DCA 1990)
- Connelly v. Arrow AIR, Inc., 568 So. 2d 448 (Fla. 3d DCA 1990)
- Emergency ONE, Inc. v. Keffer, 652 So. 2d 1233 (Fla. 1st DCA 1995)