Jeffrey P. Gale, P.A. // Consider Gross Negligence to Avoid Florida Workers’ Compensation Immunity

law-booksDuring every initial workers’ compensation client interview, I spend time explaining that Florida’s workers’ compensation system does not pay benefits for non-economic damages such as pain and suffering. Most people don’t know this. I reiterate the point during various stages of the case, especially as we approach settlement discussions. Nothing prevents fair and reasonable settlements more than expectations based on misapprehensions of the law.

The statutory authority for this limit on non-economic damages in workers’ compensation cases is found in Florida Statute 440.11(1):

The liability of an employer prescribed in s. 440.10 shall be exclusive and in place of all other liability, including vicarious liability, of such employer to any third-party tortfeasor and to the employee, the legal representative thereof, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death….

The “at law” provision encompasses non-economic damages, and the limitation is commonly referred to as “workers’ compensation immunity.” Injured workers bound by this provision are limited to receiving medical and indemnity benefits through the workers’ compensation system contained in Chapter 440 of Florida’s statutes.

“[A]t law” non-economic damages are available in personal injury cases. A key element of every personal injury case is that the harm resulted from, at a minimum, another person’s or entity’s negligence. 440.11 bars personal injury claims against co-workers and employers for mere negligence. This is “workers’ compensation immunity.”

440.11’s ban against non-economic damages is not absolute. The exceptions are set forth in subsections 440.11(1)(a)&(b). In pertinent part:

Exceptions applicable to the employer:

(1)(a) If an employer fails to secure payment of compensation as required by this chapter, an injured employee, or the legal representative thereof in case death results from the injury, may elect to claim compensation under this chapter or to maintain an action at law or in admiralty for damages on account of such injury or death.

(1)(b) (b) When an employer commits an intentional tort that causes the injury or death of the employee.

Exceptions applicable to fellow employees:

(1) The same immunities from liability enjoyed by an employer shall extend as well to each employee of the employer when such employee is acting in furtherance of the employer’s business and the injured employee is entitled to receive benefits under this chapter. Such fellow-employee immunities shall not be applicable to an employee who acts, with respect to a fellow employee, with willful and wanton disregard or unprovoked physical aggression or with gross negligence when such acts result in injury or death or such acts proximately cause such injury or death, nor shall such immunities be applicable to employees of the same employer when each is operating in the furtherance of the employer’s business but they are assigned primarily to unrelated works within private or public employment. (Bold added.)

The rest of this blog will address the “gross negligence” exception applicable to fellow employees.

The policy behind workers’ compensation immunity was described in Fleetwood Homes of Florida, Inc. v. Reeves, 833 So.2d 857 (Fla. 2nd DCA 2002). As the opinion makes clear, it is not supposed to be easy to overcome the immunity:

The history of the workers’ compensation system demonstrates that the legislature intended to give coworkers and employers immunity from suit except in extraordinary situations. Such immunity not only limits the expense of doing business in Florida over and above the admittedly significant expenses of the workers’ compensation no-fault system, but also helps maintain a better work environment in which coworkers are not constantly in fear of being sued by their fellow employees. The legislature has thus created an exclusive, administrative, no-fault remedy that is unaffected by comparative negligence in exchange for broad immunity from lawsuits for employers and coworkers.

Florida courts have struggled with defining gross negligence. As Justice England stated in Ingram v. Pettit, 340 So.2d 922 (Fla.1976), “[o]ur jurisprudence reflects a history of difficulty in dividing negligence into degrees.” Id. at 924. A similar observation was expressed a few years before in Glaab v. Caudill, 236 So.2d 180 (Fla. 2d DCA 1970) by Judge McNulty: “At the outset, we recognize that articulating the concept of gross negligence has always been difficult….” Id. at 180. He proceeded to formulate this definition:

By definition, it is now rudimentary that gross negligence is that act or omission which a reasonable, prudent man “would know would probably and most likely,” result in an injury to another; and, from a standpoint of degree, it is clear that gross negligence lies between simple negligence and the “wilful and wanton” conduct sufficient, if death results, to constitute “culpable negligence” within the crime of manslaughter.

Glaab, 236 So.2d at 182-83.

Judge McNulty suggested a three-prong workable set of criteria to assist in the determination of prima facie gross negligence:

  1. the existence of a composite of circumstances which, together, constitute an imminent or clear and present danger;
  2. chargeable knowledge of the danger; and
  3. an act or omission, evincing a conscious disregard of consequences that is more than simple carelessness.

Glaab, 236 So.2d at 183. As to this last factor, Glaab suggested that the probability that the consequences will result in injury must be “more than a real possibility, though not necessarily better than a 50-50 probability.” Glaab, 236 So.2d at 184.

Our office recently undertook the representation of a gentleman who was severely injured at work when he tried to prevent loaded carts in a trailer from rolling onto the dock and striking co-workers. Because of a faulty design, trailers backed up to the loading dock sat at an incline. By force of gravity, the loaded carts were always trying to push their way out of the trailer. There had been numerous mishaps in the short period of time the warehouse was being used. Management was aware of the dangerous condition, but failed to do anything about it because of the high modification costs.

We are handling the gentleman’s workers’ compensation case against the employer and investigating the potential gross negligence case against his supervisors and managers.

In conclusion, injury attorneys must consider every avenue of recovery for their clients. While solid opportunities to circumvent workers’ compensation immunity against employers and fellow-employees are rare, due consideration should nevertheless be given in every case.


Contact us at 305-758-4900 or by email to learn your legal rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.

DISCLAIMER: This information provided by Jeffrey P. Gale, P.A. is for informational purposes only and is intended to be used as a non-legal guide prior to consultation with an attorney familiar with your specific legal situation. It should not be considered legal advice or counseling. No such legal advice or counseling is either expressly or impliedly intended. This  information is not a substitute for the advice or counsel of an attorney. If you require legal advice, you should seek the services of an attorney.

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