Supreme Court Declines Review in Two Intentional Tort Cases; Quashes DCA Decision in Another
The Florida Supreme Court recently declined review in two cases and accepted review in another where the employees had alleged that their employers were guilty of committing an intentional tort against them.
In Pendergrass v. R.D. Michaels, Inc., the Fourth DCA held that the estate of a worker killed in a construction accident had no cause of action in tort against his corporate employer under the "criminal acts" exception to §440.11 because that exception applies only to individuals. The Court also held that even though OSHA had cited the employer for a "wilful violation" of an OSHA regulation, that fact was insufficient to show a "substantial certainty" that the violation of that regulation would result in injury or death.
In Bourassa v. Busch Entertainment Corp., the Second DCA held that the employer was not liable in tort where an animal trainer lost her arm in an accident while working with a lion. Although the employer knew the lion was extremely dangerous, it had a comprehensive training program for employees working with the lion and there had been no previous incidents involving the animal.
You can read the orders declining to grant review here and here.
But in Casas v. Siemens Energy and Automation, Inc., the Supreme Court quashed the 2006 decision of the Third DCA and remanded the case to the court for reconsideration in light of its recent decision in Bakerman v. The Bombay Co., Inc. In the decision below, the Third DCA held that the employee's tort claim against his employer was barred because there was no proof that the employer had deliberately concealed the risk of injury from the employee. But in Bakerman, the Supreme Court held that an employee need not present such proof in order to avoid the exclusive remedy provision of §440.11.
Note: Casas, like Bakerman, involved an accident that occurred prior to the 2003 amendment to §440.11. Under that amendment, proof of intentional concealment of the risk of injury by the employer is a necessary element of proof if the employee is to escape the exclusive remedy provision.
