Articles Posted in Construction Accidents

It is fairly common knowledge that when someone is injured on the job, he is limited in the legal options he has for recovery against his employer. Indeed, Florida’s Workers’ Compensation Law generally prohibits an employee from bringing a negligence suit against his employer. However, the Workers’ Compensation Law is a general bar, not an absolute bar. In fact, Florida’s Third District Court of Appeal recently addressed the limits of one of those exceptions in its recent decision in Moradiellos v. Community Asphalt Corporation, Inc.

Moradiellos arose from the death of an asphalt surveyor who worked for Community Asphalt Corporation. Community Asphalt served as the general contractor of a project to widen the Florida Turnpike. The surveyor’s job was to determine where road markings and traffic lanes should be placed. He worked at nights, and on the night of the accident leading to his death, the survey crew was provided with a rack or portable lights, which were transported along the survey site by a pickup truck. At the time he was injured, the surveyor was working on the northbound lanes and was about 600-700 feet away from the portable lights. The surveyor was under a deactivated high mast light and was working with a flashlight and headlamp. He was hit by a dump truck that had been instructed to go to the worksite.

Instead of following directions to take the southbound lanes and approach the site from the south using the northbound lanes, the driver of the truck reversed backward down the southbound lanes, a violation of company policy. While reversing, the dump truck struck and killed the surveyor, who was facing in the other direction and speaking with a supervisor on a radio at the time of the collision. The surveyor’s widow brought this case as the representative of the surveyor’s estate and sued multiple parties, including Community Asphalt. Community Asphalt moved for summary judgment, arguing that it was entitled to immunity under Florida’s Workers’ Compensation Law. The trial court granted the motion, and the estate appealed the decision.

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Workplace injuries are an everyday occurrence. However, injuries in certain workplaces create more legal complications than others. For example, construction activities at a single site are not typically performed by a single entity. Instead, the realization of a construction project often involves the overlapping work of a general contractor and numerous subcontractors. Thus, when a worker is injured, there is often difficulty ascertaining which entities are at fault and, subsequently, what forms of immunity, if any, may apply to their negligence. The dynamics of construction site workplace liability was the subject of a recent decision of Florida’s Fourth District Court of Appeal, Ciceron v. Sunbelt Rentals, Inc.

The plaintiff in Ciceron was an employee of a subcontractor that had been enlisted by the general contractor to perform demolition work as part of the renovation of a large retail store. The general contractor had also recruited electrical subcontracting and wielding subcontracting services. The defendant, Sunbelt Rentals, Inc., rented scissor lifts to the electrical subcontractor and the wielding subcontractor per a separate rental agreement. On the day of his accident, the plaintiff in this case was working at the construction site. One of the scissor lifts became inoperable. A Sunbelt employee came to the site to remove the lift but encountered difficulty loading the lift onto a truck. The Sunbelt employee asked the plaintiff and several of his coworkers for assistance with the task. The Sunbelt employee instructed them on how to position the lift, but during the course of loading the plaintiff suffered severe bodily injuries that ultimately resulted in the amputation of his leg. The plaintiff brought suit against Sunbelt, asserting various theories of negligence and loss of consortium. Following discovery, Sunbelt moved for summary judgment, arguing that the plaintiff had already received workers’ compensation benefits for his injuries and that the claims were barred by horizontal immunity under Florida’s Workers’ Compensation Laws. The trial court granted the motion for summary judgment, and the plaintiff appealed.

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Although workers’ compensation is supposed to be simple in practice, a common issue that arises from workplace accidents at construction sites is clarifying liability when there is a subcontractor relationship or multiple subcontractor relationships. The issues regarding workers compensation liability and civil suit immunity following the injury of a subcontractor worker are at the center of the Third District Court of Appeals’ recent decision in VMS, Inc. v. Alfonso (PDF download).

Alfonso started with a long chain of subcontractor relationships. At the beginning of the chain is the Florida Department of Transportation, which contracted with VMS to maintain and manage certain roadways in Palm Beach, Broward, and Miami-Dade Counties. As part of the contract, VMS was required to maintain workers’ compensation insurance, which it did. Next, VMS subcontracted some of the roadwork to ABC, which was also required pursuant to its subcontract with VMS to maintain workers’ compensation insurance, which it did. Thereafter, ABC hired an individual to handle some of the work that ABC had obligated itself to do. To accomplish this task, the individual hired several day laborers, including the plaintiff in this suit, but he never acquired workers’ compensation insurance. While performing roadwork covered by this labyrinth of subcontracts, the plaintiff was severely burned by hot tar that spilled on him. It is disputed whether VMS had knowledge of the accident, but the individual who hired the day laborer and ABC did have knowledge, and neither ABC nor VMS reported the incident to their respective workers’ compensation insurers.

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In a recent article, the Sun Sentinel examined the sudden rise in the number of workplace fatalities in Broward County, Florida. Although the post-recession rejuvenation of South Florida’s construction market is welcome news economically, increased demand for construction work has, according to sources in the story, led to the hiring of more inexperienced workers and failure to adhere to basic safety precautions, such as the installation of guardrails and the proper rigging of worksite machinery. Alarmingly, there have been 11 work-related deaths in Florida so far this year, including six in Broward County since the beginning of June. The most recent death occurred at a car dealership construction site in Fort Lauderdale, where a beam collapsed and knocked several workers off a ladder. In response to this sudden rise in fatalities, local members of Safety Alliance for Excellence (SAFE), a collaborative organization of contractors based in Miami, are set to meet with officials from the local office of the federal Occupational Safety & Health Administration to discuss the measures that should be taken to address the problem.

Like almost all other states, Florida has a workers’ compensation scheme that governs liability and financial recovery for injuries arising out of and in the course of employment. The provisions of Florida’s workers’ compensation scheme are codified in Chapter 440 of the Florida Statutes. Pursuant to § 440.10, all contractors and subcontractors engaged in either private or public construction in the state are required to maintain workers’ compensation insurance coverage for their employees. Pursuant to § 440.11, the workers’ compensation scheme is the exclusive remedy for liability arising from injury or death resulting from workplace accidents. It immunizes employers from common law negligence liability.

There are only two narrow exceptions from the exclusivity provision of the scheme. These are if the employer fails to secure payment as provided by the provisions of the workers’ compensation scheme, or if the employer commits an intentional tort causing the injury or death of the employee. See §§ 440.11(a)-(b). For the purposes of the second exception, an employer’s actions are deemed to constitute an intentional tort only if they are either deliberately intended to injure the victim or constitute conduct the employer knew, based on prior similar accidents or explicit warning, was virtually certain to result in injury or death. Furthermore, the employee must have been unaware of the attendant risks because the danger was either unapparent or deliberately concealed or misrepresented by the employer. See § 440.11(b).
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