Third DCA: OSHA Violations Relevant to Show Employer's Actions Were "Substantially Certain" to Result in Injury or Death
Before the 2003 amendments to §440.11, the Florida Supreme Court held that an employer loses its immunity from tort liability if its conduct was "substantially certain" to result in injury or death to its employee. See Turner v. PCR, Inc., 754 So.2d 683 (Fla. 2000).
In Cabrera v. T.J. Pavement Corp., decided on 11/19/2008, the Third DCA has held that an employer's violation of OSHA regulations governing the construction of trenches at construction sites, together with affidavits from experts to the effect that the employer should have known that its actions were substantially certain to result in injury or death, is sufficient to survive the employer's motion for summary judgment in the wrongful death suit filed by the deceased worker's estate.
The court was careful to note that its decision did not involve the 2003 amendment to §440.11 because the accident at issue occurred before the effective date of the amendment, which now requires that the employer's actions be "virtually certain" to result in injury or death before it loses its immunity from tort liability.
