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The Intentional Tort Exception: An Extraordinarily High Standard

The Intentional Tort Exception: An Extraordinarily High Standard

In certain Workers’ Compensation cases, an intentional tort exception may be used to sue the employer for damages in addition to the benefits provided in a Workers Compensation claim. Pursuant to the Florida Statutes Section 440.015, the Florida Workers’ Compensation Law sets forth a comprehensive scheme intended to assure the quick and efficient delivery of disability and medical benefits to an injured worker and to facilitate the worker’s return to gainful reemployment at a reasonable cost to the employer. Injured employees who fall within the scope of its provisions are to be swiftly provided compensation and necessary medical benefits by the employer, irrespective of fault as a cause of the injury. Bakerman v. The Bombay Co., 961 So. 2d 259, 261 (Fla. 2007). The statute provides employers with immunity from civil suit by the employee, such as common law negligence actions for damages arising from work-related injuries, except in the most egregious circumstances. Id.

An intentional tort exception may come into play in a wrongful death case. Pursuant to Florida Statutes 440.11 (b), an employer commits an intentional tort when the employee proves by clear and convincing evidence that the employer deliberately intended to injure the employee, or the employer engaged in conduct that the employer knew, based on prior similar accidents or on explicit warnings specifically identifying a known danger, was “virtually certain” to result in injury or death to the employee. The Turner v. PCR, Inc. case changed the standard that was used from “substantially certain” to “virtually certain.” Turner v. PCR, Inc., 754 So.2d 683 (Fla. 2000).

This new standard is extremely different and manifestly a more difficult standard to meet. For example, in R.L. Haines Construction, LLC. V. Eva Santamaria, ETC., an employee died from injuries that he sustained when he was struck by a 2000-pound steel column while he was at work. R.L. Haines Construction, LLC. V. Eva Santamaria, ETC., (Fla. 5th DCA 2014),available at: https://www.5dca.org/Opinions/Opin2014/091514/5D13-1937.op.pdf.

The cause of the employee’s death was because the columns were attached to a concrete base by an epoxy adhesive which required seventy-two hours of drying time before the employees could install the columns. Id. However, R.L. Haines instructed the employees to begin setting the steel columns after only forty-four hours of drying time, which is the reason why the column fell on the employee. Id. The decedent’s wife filed a wrongful death action against various defendants using an intentional tort exception and the trial court ruled in favor of the decedent’s wife. Id.

However, the case was appealed and the decision was reversed. Id. The court opined that the record was devoid of a prior similar accident, therefore negating the virtually certain standard. Id. Further, the decision was based on a lack of expert testimony that would reasonably infer that the column would fall at a time, in a direction, and in a manner that was virtually certain to injure or kill an employee. Id. Thus, the court held that R.L. Haines’ conduct may have been egregious, but it was not sufficient to prove by clear and convincing evidence that the employee’s death was virtually certain to occur. Id.

Based on this case and others which are similar, it is clear that bringing a case under the intentional tort exception in a Workers’ Compensation claim is very difficult to establish and prove, however the exception may still be brought and used effectively depending on the facts of the case. That is why it is important to hire a Workers’ Compensation attorney who handles these types of situations. If you have this situation or know of someone who does, have them give us a call at (877) 817-4127.


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