Opinion
Case Nos. 3D03-1465, 3D03-1532.
Opinion filed April 7, 2004.
An appeal from the Circuit Court for Miami-Dade County, Robert N. Scola, Jr., Judge, Lower Tribunal No. 01-9307.
Carlton Fields and Robert E. Baisotti and Annette M. Lang, for appellant.
Robert N. Pelier, for appellee.
Before SCHWARTZ, C.J., and COPE and SHEVIN, JJ.
The Bombay Company, Inc. appeals a jury verdict in favor of its former employee, Martin Bakerman. Bombay maintains that the evidence was legally insufficient to overcome its worker's compensation immunity. We affirm.
I.
Bakerman was the assistant manager of the Bombay store in the Dadeland Mall in Miami-Dade County. Merchandise was kept in a storeroom which had shelving approximately twenty-two feet high. Bombay supplied a wooden ladder which employees were to climb in order to retrieve merchandise stored on the shelves.
Bakerman and the store manager had complained to the area supervisor that the ladder was too short and dangerous. TR. 122-23, 128, 166, 182-83. According to the testimony, to reach merchandise on the upper shelves, it was necessary to stand on the top step of the ladder. TR. 180-83. The ladder was in bad condition and swayed from side to side when someone climbed it. The only way to stop the swaying was to hold on to the shelves with one hand while retrieving merchandise with the other hand Despite the store manager's repeated complaints and requests to buy a new ladder, the area supervisor did not authorize the expenditure of funds to replace it. While at the top of the ladder retrieving merchandise, Bakerman used both hands to remove a piece of merchandise from a shelf. The ladder fell. Bakerman fractured his heel.
The trial court denied Bombay's motion for directed verdict on the issue of worker's compensation immunity. On an interrogatory verdict form, the jury found that Bombay had engaged in conduct substantially certain to result in injury or death. The jury also found Bakerman thirty-three percent comparatively negligent.
The trial court denied Bombay's post-trial motion to set aside the verdict and enter judgment in accordance with its motion for directed verdict. The court stated, in part:
[I]t's also very clear that the company knew about the condition of the ladder and knowing that, intentionally told this person to use the ladder. So to me the jury question was, was there substantial certainty that someone would be injured and that's what the jury decided. . . .
TR. 605.
Bombay has appealed.
II.
Bakerman brought this suit under the intentional tort exception to the worker's compensation immunity. See Turner v. PCR, Inc., 754 So.2d 683, 686 (Fla. 2000). This intentional tort exception is recognized in Florida and other states. See id. at 686-87. It was initially recognized in Florida through case law. See id.
In doing so the Florida Supreme Court reasoned that recognition of an intentional tort exception followed logically from the wording of the worker's compensation statute. Turner, 754 So.2d at 689.
Effective October 1, 2003, the intentional tort exception is governed by an express statutory provision. See § 440.11(1)(b), Fla. Stat. (2003); ch. 2003-412, § 14, Laws of Fla. Because the incident in this case occurred in 1997, the 1997 version of the statute governs here and the 2003 amendment has no application.
The Turner decision summarized and modified the case-law intentional tort exception. Under that exception, "the employer must be shown to have either `exhibite[d] a deliberate intent to injure or engage[d] in conduct which is substantially certain to result in injury or death.' Id. at 687 (citation omitted).
In the present case the judge ruled that there was no evidence of any deliberate intent to injure. Thus, the first alternative under Turner was unavailable to plaintiff Bakerman.
Under the second Turner alternative, however, the court concluded that the evidence presented a jury question on whether the employer had engaged in conduct which was substantially certain to result in injury or death.
Under pre-Turner case law, a "substantial certainty" of injury or death equated to "virtual certainty." See Fisher v. Shenandoah Gen. Const. Co., 498 So.2d 882, 884 (Fla. 1986),receded from in part, Turner v. PCR, Inc., 754 So.2d 683, 687-88 n. 4, 691 n. 8 (Fla. 2000); Lawton v. Alpine Engineered Products, Inc., 498 So.2d 879, 880 (Fla. 1986), receded from in part, Turner v. PCR, Inc., 754 So.2d 683, 687-88 n. 4, 691 n. 8 (Fla. 2000).
In Turner, the Florida Supreme Court receded "from any language in Fisher or Lawton suggesting the `substantial certainty' test requires a showing of `virtual certainty.'"Turner, 754 So.2d at 687 n. 4. "Although we continue to find that `substantial certainty' requires a showing greater than `gross negligence,' we emphasize that the appropriate standard is `substantial certainty,' not the heightened `virtual certainty' standard." Id.
The court analogized "substantial certainty" and "culpable negligence," saying that the one was "not unlike" the other.Turner, 754 So.2d at 687 n. 4. The court defined culpable negligence as follows:
Culpable negligence has been defined through case law as "reckless indifference" or "grossly careless disregard" of human life. Gross negligence, on the other hand, is defined as an act or omission that a reasonable, prudent person would know is likely to result in injury to another.
Turner, 754 So.2d at 687 n. 3. (citation omitted).
The court explained:
That intentional tort exception includes an objective standard to measure whether the employer engaged in conduct which was substantially certain to result in injury. This standard imputes intent upon employers in circumstances where injury or death is objectively "substantially certain" to occur. To hold otherwise would virtually encourage a practice of "willful blindness" on the part of employers who could ignore conditions that under an objective test would be found to be dangerous, and later claim lack of subjective knowledge or intent to harm an employee. This holding is also consistent with legislative policy recognizing the liability of managerial or policy-making coemployees for conduct constituting reckless indifference to the safety of other employees.
Turner, 754 So.2d at 691.
A useful illustration is found in the facts of Lawton. In footnote eight of Turner, the Florida Supreme Court held that the facts of Lawton do constitute substantial certainty of injury. Those facts were:
Alpine Engineered Products purchased a punch press from Federal Press Company in 1972. In 1981 Carl Lawton, a punch press operator employed by Alpine, caught his hand in the press when a co-worker accidentally put the press into operation as Lawton attempted to adjust the machine. The press crushed Lawton's hand and caused the loss of all the fingers on that hand Following the accident, Lawton applied for and received workers' compensation benefits from Alpine's insurance carrier. . . . During the course of discovery, Lawton learned that between February 1972 and August 1980 Alpine had received numerous written communications from Federal Press informing Alpine that, for safety reasons, point of operation guards should be provided on the press and that operators should be instructed about the various dangers involved in operating the press.
498 So.2d at 880. There, as here, the employer failed to make the equipment safe despite repeated warnings of the safety hazard.
As originally decided in 1986, the Florida Supreme Court held that the just quoted language did not amount to a substantial certainty of injury or death. In 2000, the Turner court said, "we . . . recede from Fisher and Lawton to the extent those cases can be read as rejecting the facts as stated therein as a sufficient basis to support an allegation of substantial certainty of injury." Turner, 754 So.2d at 691 n. 8.
In the present case the employer supplied a worn ladder to reach twenty-two-foot-high shelves. It would sway from side to side. It could not be used in the normal manner, that is, by grasping the rails. Instead, to keep the ladder in an upright position, it was necessary to grasp the shelving with one hand to hold the ladder in a vertical position, while retrieving merchandise with the other hand Further, it was not tall enough, so employees had to stand on the top step in order to reach merchandise that was on the top shelf of the storeroom.
This was a stepladder which was designed to be opened up, but there was no room to do so in the available space in the storeroom. The ladder was leaned against the tall shelving and used in that position.
Regarding the swaying, the plaintiff testified:
Q: How much would it sway?
A: That's a question that I have heard a couple of times today including — I can answer it three different ways. If nobody is on the ladder it didn't sway at all. If you were on the ladder it swayed as much as you allowed it to sway. Because it would start to sway, you would hold on and you would [stabilize] it. You would stabilize it, so you really don't know how far.
And the third answer to that is, I guess it sways all the way to the floor as it did with me.
TR. 181.
There were constant complaints about the ladder, TR. 181-82, and there were at least three complaints to the area supervisor requesting money to buy a new ladder. Id. 122-23, 166, 182-83. The employer took no action.
We conclude that the "substantial certainty" standard was met here. The relevant points are: (1) The employer required the employees to stand on the top step of the ladder to reach merchandise on the upper shelves. This would be bad enough as an isolated occurrence but here it was routinely required. (2) This was a worn wooden ladder which swayed from side to side and could be maintained in an upright position only by having the employee manually hold on to the shelving. (3) The ladder was not an appropriate design for the space and had to be propped against the tall shelving instead of being opened. (4) What moves this case into the category of "substantial certainty" was the employer's repeated failure to respond to the manager's specific requests for the money to replace this specific ladder.
The employer suggests that "substantial certainty" can be met only in catastrophic cases like Turner, which involved a freon explosion, or Connelly v. Arrow Air, Inc., 568 So.2d 448 (Fla. 3d DCA 1990), which involved an air crash. But the "substantial certainty" standard is not reserved for death cases alone. It includes conduct "substantially certain to result in injury or death." Turner 754 So.2d at 687 (internal quotation marks and citation omitted; emphasis added).
It is argued that if this ladder was used constantly, it cannot have been "substantially certain" to cause injury or death. The argument is that if it presented such a risk, then any worker would have fallen the first time he or she used the ladder. But this ignores the testimony.
The testimony indicated that the ladder would sway badly when an employee climbed near the top, and it was necessary to hold on to the shelving to prevent the ladder from swaying and falling. The jury could conclude that if an employee ever let go of the shelving, the ladder would fall — as it did with Bakerman. And the jurors' common sense would tell them that repeated use of this wooden ladder will only grow worse with repeated usage, thus increasing the danger.
The Lawton case, quoted above, is comparable. There the employer had owned a punch press from 1972 to 1980 during which time the employer had received numerous warnings that point of operation guards should be added to the press and operators should be warned about the dangers involved in operating the press. 498 So.2d at 880. There is no indication in the opinion that there had been any previous accidents on this particular press prior to Lawton's injury. The fact that the employer had continued to use the press in an unsafe condition for eight years did not remove the "substantial certainty" of personal injury. In the present case, likewise, the fact that the store employees managed to use an unsafe ladder for a period of time likewise did not cure, or eliminate, the "substantial certainty" of injury which existed.
Bombay relies on the decision in Florida Department of Transportation v. Juliano, 28 Fla. L. Weekly D 2121 (Fla. 3d DCA Sept. 10, 2003), but that case is not on point. The plaintiff tripped on a bump on the floor of a Florida Department of Transportation ("DOT") facility which DOT was planning to repair or replace. These facts are nothing like the case now before us.
III.
The Insurance Company of the State of Pennsylvania is the worker's compensation carrier for Bombay. It requested intervention in the trial court for a limited purpose, namely, a request for an additional interrogatory on the jury verdict form. The insurer desired that the verdict form include both alternatives under Turner. Thus, the insurer desired an interrogatory on deliberate intent to injure, as well as the interrogatory actually given, relating to substantial certainty of injury or death. The trial court allowed the limited intervention but denied the insurer's request for the additional interrogatory on the verdict form. The insurer has appealed. We conclude that the trial court's ruling is amply supported by the record and was well within the trial court's discretion.
Affirmed.
COPE and SHEVIN, JJ., concur.
It is simply beyond my comprehension that the employer's use of a worn ladder can amount to the extreme manslaughter-type misbehavior which is necessary to avoid the immunity conferred by the Workers' Compensation Act.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.