Disability Law

Third DCA: Questions of Fact Remain in Employee's Tort Suit Against Employer

By David A. McCranie, Esq.

The courts are still dealing with the aftermath of the Florida Supreme Court's 2007 decision in Bakerman v. The Bombay Co.  The court concluded in that case that under the pre-2003 version of §440.11, the plaintiff/employee need not prove that the employer deliberately concealed a dangerous condition from the employee in order to prove that the employer's conduct was "substantially certain" to result in injury or death.  Conduct meeting that test allowed an employee to circumvent the "exclusive remedy" of workers' compensation and sue the employer in tort.

In its original opinion decided before Bombay, the Third DCA had concluded that the employer's concealment of a known danger was an "indespensable criterion" of the "substantial certainty" test.  But on remand from the supreme court after Bombay, the court concluded 2-1 in Casas v. Siemens Energy and Automation, Inc., that there remained disputed issues of fact on whether the substantial certainty test had been met.  Thus, it reversed the award of summary judgment for the employer and remanded the case for further proceedings.  The complaint there alleged that the plaintiff's arm was crushed in a machine because the employer had insufficiently trained him in using it.

Of course, these decisions have limited consequences.  The legislature amended §440.11 in 2003 to increase the claimant's burden from "substantial certainty" to "virtual certainty" before he can avoid the exclusive remedy provision.  He also must prove that the employer deliberately concealed a known danger.

Full post as published by Florida Workers’ Compensation Law Blog on January 31, 2009 (boomark / email).