In a workers’ compensation immunity case, the Court of Appeal of Florida (Fourth District) yesterday reversed a $2.7 million jury verdict and final judgment in favor of an employee who suffered an amputation of a significant portion of his dominant hand while operating a piece of machinery at his employer’s place of business [List Indus., Inc. v. Dalien, 2013 Fla. App. LEXIS 925 (Jan. 23, 2013)]. The machine, a Press Brake, was utilized in the bending and shaping of metal. When activated, it exerted some 60 tons of pressure. In typical use, the operator inserted a piece of steel into a horizontal slot and then activated the press with a foot pedal, causing it to bend into the shape of the die. The employee’s activation of the foot pedal while his hand was in the die was the process that caused the injury.
The court initially indicated that following the Supreme Court’s decision in Turner v. PCR, Inc., 754 So. 2d 683 (Fla. 2000), which adopted the “substantially certain” rule when judging whether an employer’s actions were “intentional” for workers’ compensation exclusivity purposes, the Florida Legislature amended § 440.11, Fla. Stat., so as to require the plaintiff/employee prove the “intentional tort exception” by clear and convincing evidence. Moreover, it replaced Turner’s “substantial certainty” standard with the “virtually certain” standard by requiring that “employer knew based upon similar accidents or on explicit warnings specifically identifying a known danger, was virtually certain to result in injury or death to the employee.” [quoting Pendergrass v. R.D. Michaels, Inc., 936 So. 2d 684, 689 n.1 (Fla. 4th DCA 2006)]. The court continued that the effect of the amendment changing “substantial certainty” to “virtually certain” was an “extremely different and a manifestly more difficult standard to meet,” generally requiring that a plaintiff show that a given danger would result in an accident every – or almost every – time.
The court observed that the employee had certainly proved that the employer’s conduct was negligent. There were no safety guards; the foot pedal was covered with grease and debris. Nevertheless, the statute had eliminated the employee’s common law right to bring a negligence action against the employer.
The court continued that here the employee proved by clear and convincing evidence that there were prior accidents on different machines which performed different functions and which caused both different injuries and similar injuries. The court added that he employee had not, however, proved by clear and convincing evidence that there were prior “similar” accidents on this machine. The employee, therefore, did not prove that it was “virtually certain” that operating the Press Brake would result in injury to the employee, as there had been no prior accidents on this machine.
Moreover, the employee had not proved, by clear and convincing evidence, that the employee was unaware of the risk, that the danger was not apparent, and that the employer deliberately concealed or misrepresented the danger so as to prevent the employee from exercising informed judgment about whether to perform the work. The court stated that there are some types of work, and in this case some machines, that are so obviously and inherently dangerous that the danger would be obvious to anyone working in the vicinity. The Press Brake was such a machine. According to the court, there could be no question that it was obvious to the employee that the machine could crush a hand from the times he saw steel being inserted into the Press Brake and the operator activating the foot pedal which caused the 60 ton press to bend the steel.
The court concluded that, given the posture of the case, the trial court erred by not entered a directed verdict for the employer.