What is an Intentional Tort?
As in most other states, a Florida employer enjoys immunity from tort liability to its employees for almost all workplace injuries. Instead, the benefits provided by the Florida Workers' Compensation Act provide the "exclusive remedy" for such injuries. One exception to that rule of exclusivity, however, applies when the employer has intentionally harmed its employee. In such cases, the employee is entitled to recover from the employer not just a percentage of his lost wages and his medical bills, but also non-economic damages such as "pain and suffering," "mental anguish," "loss of consortium," and the like. But what kind of proof is necessary to demonstrate such employer intent? That issue was the subject of the Florida Supreme Court's 6/21/2007 decision in Bakerman v. The Bombay Company, Inc.
The Court had previously held that where the employer engaged in conduct which was "substantially certain" to cause harm to the employee, then the employer is subject to tort liability for the employee's resulting injuries. In Bakerman, the Court held 4-3 that in establishing "substantial certainty," the employee need not prove that the employer deliberately concealed a known danger to the employee.
The dissent argued, however - and the majority even agreed - that the Court's decision will have very limited application because of a 2003 amendment to the "exclusive remedy" provision, s.440.11, Fla. Stat. Under that amendment, in order to avoid the exclusive remedy provision, the employee must prove that the employer's conduct was "virtually certain" to have resulted in harm to the employee because he was not aware of the risk and the employer "deliberately concealed or misrepresented the danger."
In other words, the statute now requires the very proof which the Court rejected as being necessary under the previous version of the statute at issue in Bakerman. The Court noted that the 2003 version of the statute was inapplicable in Bakerman because the employee's accident occurred before 10/1/2003, the effective date of the statutory amendment.
