It is not uncommon for the injured party to first receive workers’ compensation benefits before deciding whether to pursue civil damages. Florida appellate courts have thoroughly analyzed how far one can go down the workers’ compensation path before the election becomes binding. Far less guidance exists, however, on how far one may go in a civil action before being barred from later seeking workers’ compensation benefits.

Yet, the governing legal principle applies to both scenarios:

An election becomes binding “when the rights of the parties have been materially affected to the advantage of one or the disadvantage of the other,” and “[i]t is generally conceded that to be conclusive it must be efficacious to some extent.”
— Williams v. Robineau, 124 Fla. 422, 168 So. 644 (1936); Williams v. Duggan, 153 So. 2d 726 (Fla. 1963)

In practice, determining when an election has matured is often clearer in civil litigation. Civil damages are not awarded until a court determines whether common law is the appropriate remedy. Until that point, the election generally remains open.

The Hume Decision

The case of Hume v. Thomason, 440 So. 2d 441 (Fla. 1st DCA 1983), illustrates the consequences of making a binding election. Hume, a carpenter injured while working on the Thomasons’ home, was entitled to elect between workers’ compensation and a civil lawsuit under § 440.11(1), Florida Statutes, because the employer failed to secure workers’ compensation coverage. Hume chose to sue in civil court, but the court entered final summary judgment against him. He then sought workers’ compensation benefits. The Thomasons objected, arguing that Hume had elected his remedy.

The judge of compensation claims agreed, and the First DCA affirmed:

“The summary judgment rendered in the circuit court was obviously efficacious from the Thomasons’ point of view, as it worked to their advantage and to Hume’s disadvantage. Thus, Hume’s election matured when judgment was entered finally adjudicating the rights of the parties. He was precluded thereafter from pursuing his workers’ compensation claim.”

The court also observed the unfairness of requiring the employer to defend the same injury claim in two different forums:

“[T]he employer should not be twice placed in the position of defending himself where he had had to defend either a damage suit on the one hand or a compensation claim on the other to its final conclusion.”

In short, Hume elected his remedy—and lost. End of story.

The Gilbert Decision

The principle was similarly tested in Gilbert v. Florida Birth-Related Neurological Injury Compensation Association, 724 So. 2d 688 (Fla. 2d DCA 1999). There, the plaintiffs settled a civil medical negligence claim and later filed a petition for benefits under the Florida Birth-Related Neurological Injury Compensation Plan (NICA). An administrative law judge dismissed the petition, citing the doctrine of election of remedies. The Second DCA reversed:

“The remedies are mutually exclusive, but only upon a determination of whether the infant is a NICA baby. That is the core issue of both the civil action and the administrative petition. … The resulting settlement of [the civil] action, although it may imply [the baby was not covered under NICA], fell short of such a determination.”

In other words, an election is not binding unless the underlying factual issue has been definitively resolved.

Application in Workers’ Compensation

In workers’ compensation matters, benefits are often received passively, without the injured worker affirmatively electing them. Such passive receipt—even if substantial—typically does not constitute a binding election.

More commonly, the issue arises when a claimant receives some benefits and then files a civil suit. Despite the general guidance from Duggan, the outer limit of how far one can go in the compensation system before forfeiting a civil remedy remains somewhat unclear.

Still, as shown in Hume and Gilbert, most decisions support the idea that an election is not binding until a factual determination on the core issue has been made. In civil cases, that core issue may be whether the claim is governed by the exclusive remedy provision of Chapter 440. In workers’ compensation cases, it may be whether the injury falls within the Act’s coverage.

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Contact us at 305-758-4900 or by email to learn your legal rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.

Employers and fellow-employees are immune from civil lawsuits for work-related accidents. See sections 440.10 and 440.11, Florida Statutes. In other words, the workers’ compensation system is the harmed individual’s exclusive remedy.

Exceptions arise when the employer has failed to secure the payment of workers’ compensation (440.10(1) and 440.11(1)(a)), the employer commits an intentional tort (440.11(1)(b), or the fellow-employee acts with willful and wanton disregard or unprovoked physical aggression or with gross negligence (440.11(1)).

Another exception may apply when 1) the employer makes a representation of a material fact that is contrary to a later-asserted position; 2) the harmed worker relies on that representation; and 3) the worker is damaged by changing his or her position in reliance on said representation. See Specialty Emp. Leasing v. Davis, 737 So. 2d 1170, 1172 (Fla. 1st DCA 1999) (quoting Dep’t of Revenue v. Anderson, 403 So. 2d 397, 400 (Fla. 1981)). This exception is known as equitable estoppel.

In McNair v. Dorsey, 291 So.3d 607 (Fla. 1st DCA 2020), McNair was injured while carrying a tree branch to a wood chipper. The employer first asserted that there was “no compensable accident.” In a later pretrial stipulation, the employer claimed that no compensable accident occurred, and took the position that McNair’s accident did not occur within the course and scope of his employment.

After withdrawing his workers’ compensation claim, McNair instituted an action in circuit court alleging negligence on the part of his employer and a fellow-employee. The employer filed a motion for summary judgment alleging that the “accident occurred within the course and scope of [McNair’s] employment,” and that they were therefore entitled to workers’ compensation immunity. McNair argued estoppel. The employer’s motion was granted and the order granting the summary judgment was affirmed on appeal.

The First District Court of Appeal began its analysis by recognizing the applicability of estoppel in workers’ compensation cases:

Florida courts have held that “an employer may be equitably estopped from raising a workers’ compensation exclusivity defense if the employer denies the employee’s claim by asserting that the injury did not occur in the course and scope of his or her employment.” Coastal Masonry, Inc. v. Gutierrez, 30 So. 3d 545, 547 (Fla. 3d DCA 2010) (citing Schroeder v. Peoplease Corp., 18 So. 3d 1165 (Fla. 1st DCA 2009)).

The court then proceeded to explain why estoppel did not apply in the case. It did so by distinguishing its facts from those in Byerley v. Citrus Publ’g, 725 So. 2d 1230 (Fla. 5th DCA 1999). It pointed out that Armstrong, the employer, asserted that “no work accident causing injury occurred at all,” id. at 610, while the employer in Byerley claimed that the “injury did not arise out [of] the course and scope of [Byerley’s] employment,” because it occurred after she “clocked out and had exited the building.” Id. at 1231.

After Byerley’s employer claimed that the accident did not happen in the course and scope of his employment, Byerley sued the employer in circuit court alleging negligence. The employer asserted that Byerley’s exclusive remedy was workers’ compensation. The trial court agreed, granting summary judgment in favor of the employer. Finding that the employer’s position created a Hobson’s choice for Byerley, the appellate court reversed the lower court’s ruling:

We think it would be inequitable for an employer to deny worker’s compensation coverage on the ground that the employee’s injury did not arise out of the course and scope of employment, then later claim immunity from a tort suit on the ground that the injury did arise out of the course and scope of employment. This argument, if accepted, would eviscerate the Workers’ Compensation Act and allow employers to avoid all liability for employee job related injuries.

By making a representation of a material fact that is contrary to a later-asserted position, the employer in Byerley met the first prong of the equitable estoppel formula. This is not what happened in McNair. As explained by the court:

McNair’s claimed accident, if it happened as he alleged, certainly occurred in the course and scope of his employment. Armstrong’s claim was that no accident causing injury occurred at all. Either the factfinder would determine that the accident occurred, in which case it was indisputably within the course and scope of employment, or that the accident did not occur, in which case there was no compensable injury.

The McNair court was also guided by Coastal Masonry, Inc. v. Gutierrez, 30 So. 3d 545, 547 (Fla. 3d DCA 2010) (citing Schroeder v. Peoplease Corp., 18 So. 3d 1165 (Fla. 1st DCA 2009)). Bayardo Gutierrez (“Gutierrez”) filed a petition seeking workers’ compensation benefits from his employer, Coastal, for injuries sustained while lifting concrete blocks. In response to the petition for benefits, Coastal denied the claim in its entirety including that Gutierrez’s condition “is not the result of an injury by accident arising out of and in the course and scope of employment.” Specifically, the denial of benefits stated:

The carrier has denied the claim in its entirety. The claimant did not report the alleged injury to the employer in a timely manner, as required by F.S. 440.185(1). The present condition of the claimant is not the result of an injury by accident arising out of and in the course and scope of employment. There is no accident or occupational disease. The condition complained of is not the result of an injury, as defined by F.S. 440.02(1). The claimant’s medical condition is the result of a pre-existing condition or disease. The claimant’s medical condition is personal, pre-existing and/or idiopathic in nature.

Following this denial, the claimant instituted a circuit court civil action against the employer sounding in negligence. On summary judgment, the trial court denied the employer’s workers’ compensation immunity affirmative defense. Finding that Coastal, the employer, “has taken inconsistent positions,” The First DCA affirmed the order.

The case law on the subject can be confusing. The denial language used by the employer in McNair is similar to the reasons stated in Byerley and Coastal Masonry. However, the results are very different. It appears that the courts dig behind the language to determine the actual reasons for the denials. Practitioners need to do the same before jumping to the conclusion that estoppel will be deemed.

Equitable estoppel arises infrequently in workers’ compensation cases. It is usually clear whether or not the claimed accident happened in the course and scope of employment, so employers rarely deny for that reason. Second, pursuing a civil remedy may not always be the wisest course of action to follow. In civil cases, the burden is on the plaintiff to prove negligence. In many workplace accidents, nobody is at fault. In workers’ compensation cases, fault does not have to be demonstrated; it’s a no-fault system. Finally, the quality, quantity, and timing of medical and wage loss benefits available through workers’ compensation sometimes surpass those available under the civil system.

The issues discussed in this blog can have substantial consequences. It is strongly recommended that advice of counsel be sought before the issues arise.

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Contact us at 305-758-4900 or by email (jgale@jeffgalelaw.com and kgale@jeffgalelaw.com) to learn your legal rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.

DISCLAIMER: This information provided by Jeffrey P. Gale, P.A. is for informational purposes only and is intended to be used as a non-legal guide prior to consultation with an attorney familiar with your specific legal situation. It should not be considered legal advice or counseling. No such legal advice or counseling is either expressly or impliedly intended. This information is not a substitute for the advice or counsel of an attorney. If you require legal advice, you should seek the services of an attorney.

What limits most employees from being able to receive the civil remedy is the legal concept known as workers’ compensation immunity. The basic concept is set forth in Fla. Stat. Sec. 440.11(1):

The liability of an employer prescribed in s. 440.10 shall be exclusive and in place of all other liability, including vicarious liability, of such employer to any third-party tortfeasor and to the employee, the legal representative thereof, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death….

Special laws have been devised to deal with workers’ compensation immunity in the context of contractor-subcontractor relationships. See Fla. Stat. Sec. 440.10(b)-(f). For the employees of contractors and subcontractors, the general law is set forth in s. 440.10(b):

In case a contractor sublets any part or parts of his or her contract work to a subcontractor or subcontractors, all of the employees of such contractor and subcontractor or subcontractors engaged on such contract work shall be deemed to be employed in one and the same business or establishment, and the contractor shall be liable for, and shall secure, the payment of compensation to all such employees, except to employees of a subcontractor who has secured such payment.

“[T]he purpose of section 440.10 . . . [is] ‘to insure [sic] that a particular industry will be financially responsible for injuries to those employees working in it, even though the prime contractor employs an independent contractor to perform part or all of its contractual undertaking.’” Gator Freightways, Inc. v. Roberts, 550 So. 2d 1117, 1119 (Fla. 1989) (quoting Roberts v. Gator Freightways, Inc., 538 So. 2d 55, 60 (Fla. 1st DCA 1989)); see also Crum Servs. v. Lopez, 975 So. 2d 1184, 1186 (Fla. 1st DCA 2008) (explaining that section 440.10(1)(b) “is designed to ensure that employees engaged in the same contract work are covered by workers’ compensation, regardless of whether they are employees of the general contractor or its subcontractor”).

Some people read s. 440.10 to mean that every contractor or subcontractor working on a common project shares immunity from any claim asserted by any employee of any of them. This overstates the concept. Florida courts have recognized time and again that s. 440.10(1)(b) applies only when a contractor has sublet—that is, subcontracted—part of a contract. See, e.g., Jones v. Florida Power Corp., 72 So. 2d 285, 289 (Fla. 1954); Rabon v. Inn of Lake City, Inc., 693 So. 2d 1126, 1130–32 (Fla. 1st DCA 1997); Sotomayor v. Huntington Broward Assocs. L.P., 697 So. 2d 1006, 1007 (Fla. 4th DCA 1997).

In Galue v. Clopay Corporation, et al., (Fla. 3rd DCA 2023), Clopay was a tenant under a lease agreement obligating it to “use the Premises in compliance with all federal, state, local, and municipal laws, orders, judgments, ordinances, regulations, codes, directives, permits, licenses, covenants and restrictions . . . applicable to the Premises.” Clopay hired Florida Fire Safety to conduct an inspection of the premises. Galue, who was a technician for FFS, was injured while performing the inspection. Galue then brought an action in state court against Clopay and one of its employees (Julian) for the injuries he sustained in the incident, alleging claims for negligence against both Clopay and Julian, and vicarious liability against Clopay. Clopay and Julian each answered and raised worker’s compensation immunity as an affirmative defense. Clopay moved for summary judgment asserting that Galue’s action was barred by worker’s compensation immunity. The trial court granted summary judgment, reasoning that Coplay delegated its contractual obligation under the lease to Florida Fire Safety. The trial court was reversed on appeal. The Third DCA concluded that because the language relied on by Coplay in moving for summary judgment did not obligate it to perform a job or service for the landlord, Coplay was not contractually bound to perform the service it hired FFS to perform. Hence, as the statutory terms “contractor” and “contract work” plainly and unambiguously contemplate a party performing work pursuant to a contract with another, Coplay did not qualify as an employer.

The concept that s. 440.10(1)(b) applies only when a contractor has sublet—that is, subcontracted part of a contract — is demonstrated clearly in Heredia v. John Beach & Associates, 278 So.3d 194 (Fla. 2nd DCA 2019). Lennar Homes hired two companies to perform different jobs on a tract of land it was developing. Heredia, an employee of one of the companies was injured by an employee of the other company. He sued the employee and his employer (under vicarious liability) for negligence. The trial judge granted summary judgment for the defendants under s. 440.10. The DCA reversed, deciding as follows:

There is no record evidence before us that Lennar was performing any work, of any kind, on behalf of any third party with respect to the Oaks at Shady Creek development. To the contrary, the evidence thus far tends to show that Lennar was acting on its own behalf as the owner of its own property.

These principles were illustrated in Witzman v. Sunderland Trucking, LLC, 2019 WL 7347177 (Signed 09/03/2019), in a trial court Order denying summary judgment:

[C]onsider an owner we’ll call A who contracts with B to build an office. B subcontracts with C to install a roof and with D to pour a driveway. If an employee of C negligently drops roofing tiles on an employee of D, causing injury, workers’ compensation immunity protects C and its employee from claims by D’s employee. This is so because § 440.10(1)(b) makes B, C, and D “one and the same business or establishment.”

Alternatively, consider an owner A who, in the course of building an office for itself, contracts with C to install a roof and with D to pour a driveway. There is no subcontract. If an employee of C negligently drops roofing tiles on an employee of D, causing injury, workers’ compensation immunity does not protect C and its employee from claims by D’s employee. Under § 440.10(1)(b), nobody has “sublet” anything; C and D are not “one and the same business or establishment.”

One more example: In Cuero v. Ryland Group, Inc., 849 So. 2d 326 (Fla. 2nd DCA 2003), Ryland, the owner/developer of the complex and the general contractor, sought workers’ compensation immunity under s. 440.10. It had entered into a contract with Sunfish Framing and Construction, Inc., to do framing work on the project. Sunfish subcontracted a portion of its work to Carlos Maldonado who in turn contracted with Diego Gallego to complete the application of the plywood sheathing on the roof. Gallego hired Luis Cuero to assist him. Cuero was involved in a serious accident and brought a negligence action against Ryland. Summary judgment in favor of Ryland was reversed on appeal. The District Court of Appeals found that Ryland was constructing the townhomes as a commercial business venture for itself and not as a result of contractual obligations to third parties.

The principles set forth in this blog show the importance of performing a thorough investigation of the contractual and legal status of the various parties.

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Contact us at 305-758-4900 or by email (jgale@jeffgalelaw.com and kgale@jeffgalelaw.com) to learn your legal rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.

DISCLAIMER: This information provided by Jeffrey P. Gale, P.A. is for informational purposes only and is intended to be used as a non-legal guide prior to consultation with an attorney familiar with your specific legal situation. It should not be considered legal advice or counseling. No such legal advice or counseling is either expressly or impliedly intended. This information is not a substitute for the advice or counsel of an attorney. If you require legal advice, you should seek the services of an attorney.

Against Employers:

1. The employer deliberately intended to injure the employee; or
2. The employer engaged in conduct that was virtually certain to result in injury or death, and the employee was not aware of the risk.

Against Fellow Employees:

1. The employee acted with willful and wanton disregard or unprovoked physical aggression or with gross negligence; or
2. The injured employee and the at-fault employee were assigned primarily to unrelated works.

*These are the standards when the employer has secured workers’ compensation coverage as required by Chapter 440. If the employer fails to secure the compensation required by the chapter, the employee may elect to claim compensation under the workers’ compensation laws or maintain an action at law (a/k/a civil law) or admiralty without having to meet the heightened standards outlined above. See Section 440.11(1)(a), Florida Statutes.

An important consideration in every injury case is whether the target defendant has the financial resources to pay for the losses. Workers’ compensation insurance policies will pay for all workers’ compensation benefits. However, because of exclusions, these policies are unlikely to cover the damages associated with an action at law. Most companies also maintain liability insurance policies. However, these policies also often contain exclusions for injuries to employees even when the harm was caused by the employer or a fellow employee.

Some employers have the personal financial wherewithal to meet the obligations associated with significant civil damages. Most individuals do not. Interestingly, the legal principle respondeat superior, which is Latin for “that the master must answer,” does not apply in the realm of workers’ compensation immunity so as to make the employer financially responsible for civil damages caused by a co-employee. See Taylor v. Sch. Bd. of Brevard Cnty., 888 So. 2d 1, 7 (Fla. 2004) (Lewis, J., concurring in result) (noting that the “unrelated works exception to the rule of general immunity applies only in the co-employees context, and application of the provision does not result in the loss of general immunity by an employer”) and Vallejos v Lan Cargo, SA, 116 So.3d 545 (Fla. 3rd DCA 2013). (The statute does not mention any imputation of liability onto the employer and specifically states that immunity includes vicarious liability).

Injured workers have the right to receive workers’ compensation benefits from the employer and maintain an action at law at the same time against fellow employees. Because the remedies are against different entities, pursuing both will not be considered an election of remedy to bar one or the other.

Nevertheless, thoughtful consideration should be given to pursuing a civil remedy against a fellow employee when the financial resources may not be available to pay the damages. The practice of law is a business. Good decisions must be made with regard to the investment of time and resources.

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Contact us at 305-758-4900 or by email to learn your legal rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.

DISCLAIMER: This information provided by Jeffrey P. Gale, P.A. is for informational purposes only and is intended to be used as a non-legal guide prior to consultation with an attorney familiar with your specific legal situation. It should not be considered legal advice or counseling. No such legal advice or counseling is either expressly or impliedly intended. This information is not a substitute for the advice or counsel of an attorney. If you require legal advice, you should seek the services of an attorney.

The statutory authority for this limit on non-economic damages in workers’ compensation cases is found in Florida Statute 440.11(1):

The liability of an employer prescribed in s. 440.10 shall be exclusive and in place of all other liability, including vicarious liability, of such employer to any third-party tortfeasor and to the employee, the legal representative thereof, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death….

The “at law” provision encompasses non-economic damages, and the limitation is commonly referred to as “workers’ compensation immunity.” Injured workers bound by this provision are limited to receiving medical and indemnity benefits through the workers’ compensation system contained in Chapter 440 of Florida’s statutes.

“[A]t law” non-economic damages are available in personal injury cases. A key element of every personal injury case is that the harm resulted from, at a minimum, another person’s or entity’s negligence. 440.11 bars personal injury claims against co-workers and employers for mere negligence. This is “workers’ compensation immunity.”

440.11’s ban against non-economic damages is not absolute. The exceptions are set forth in subsections 440.11(1)(a)&(b). In pertinent part:

Exceptions applicable to the employer:

(1)(a) If an employer fails to secure payment of compensation as required by this chapter, an injured employee, or the legal representative thereof in case death results from the injury, may elect to claim compensation under this chapter or to maintain an action at law or in admiralty for damages on account of such injury or death.

(1)(b) (b) When an employer commits an intentional tort that causes the injury or death of the employee.
Exceptions applicable to fellow employees:

(1) The same immunities from liability enjoyed by an employer shall extend as well to each employee of the employer when such employee is acting in furtherance of the employer’s business and the injured employee is entitled to receive benefits under this chapter. Such fellow-employee immunities shall not be applicable to an employee who acts, with respect to a fellow employee, with willful and wanton disregard or unprovoked physical aggression or with gross negligence when such acts result in injury or death or such acts proximately cause such injury or death, nor shall such immunities be applicable to employees of the same employer when each is operating in the furtherance of the employer’s business but they are assigned primarily to unrelated works within private or public employment. (Bold added.)

The rest of this blog will address the “gross negligence” exception applicable to fellow employees.

The policy behind workers’ compensation immunity was described in Fleetwood Homes of Florida, Inc. v. Reeves, 833 So.2d 857 (Fla. 2nd DCA 2002). As the opinion makes clear, it is not supposed to be easy to overcome the immunity:

The history of the workers’ compensation system demonstrates that the legislature intended to give coworkers and employers immunity from suit except in extraordinary situations. Such immunity not only limits the expense of doing business in Florida over and above the admittedly significant expenses of the workers’ compensation no-fault system, but also helps maintain a better work environment in which coworkers are not constantly in fear of being sued by their fellow employees. The legislature has thus created an exclusive, administrative, no-fault remedy that is unaffected by comparative negligence in exchange for broad immunity from lawsuits for employers and coworkers.

Florida courts have struggled with defining gross negligence. As Justice England stated in Ingram v. Pettit, 340 So.2d 922 (Fla.1976), “[o]ur jurisprudence reflects a history of difficulty in dividing negligence into degrees.” Id. at 924. A similar observation was expressed a few years before in Glaab v. Caudill, 236 So.2d 180 (Fla. 2d DCA 1970) by Judge McNulty: “At the outset, we recognize that articulating the concept of gross negligence has always been difficult….” Id. at 180. He proceeded to formulate this definition:

By definition, it is now rudimentary that gross negligence is that act or omission which a reasonable, prudent man “would know would probably and most likely,” result in an injury to another; and, from a standpoint of degree, it is clear that gross negligence lies between simple negligence and the “wilful and wanton” conduct sufficient, if death results, to constitute “culpable negligence” within the crime of manslaughter.

Glaab, 236 So.2d at 182-83.

Judge McNulty suggested a three-prong workable set of criteria to assist in the determination of prima facie gross negligence:

1. the existence of a composite of circumstances which, together, constitute an imminent or clear and present danger;
2. chargeable knowledge of the danger; and
3. an act or omission, evincing a conscious disregard of consequences that is more than simple carelessness.

Glaab, 236 So.2d at 183. As to this last factor, Glaab suggested that the probability that the consequences will result in injury must be “more than a real possibility, though not necessarily better than a 50-50 probability.” Glaab, 236 So.2d at 184.

Our office recently undertook the representation of a gentleman who was severely injured at work when he tried to prevent loaded carts in a trailer from rolling onto the dock and striking co-workers. Because of a faulty design, trailers backed up to the loading dock sat at an incline. By force of gravity, the loaded carts were always trying to push their way out of the trailer. There had been numerous mishaps in the short period of time the warehouse was being used. Management was aware of the dangerous condition, but failed to do anything about it because of the high modification costs.

We are handling the gentleman’s workers’ compensation case against the employer and investigating the potential gross negligence case against his supervisors and managers.

In conclusion, injury attorneys must consider every avenue of recovery for their clients. While solid opportunities to circumvent workers’ compensation immunity against employers and fellow-employees are rare, due consideration should nevertheless be given in every case.

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Contact us at 305-758-4900 or by email to learn your legal rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.

DISCLAIMER: This information provided by Jeffrey P. Gale, P.A. is for informational purposes only and is intended to be used as a non-legal guide prior to consultation with an attorney familiar with your specific legal situation. It should not be considered legal advice or counseling. No such legal advice or counseling is either expressly or impliedly intended. This information is not a substitute for the advice or counsel of an attorney. If you require legal advice, you should seek the services of an attorney.