Is The Greathouse Case Really Great, DD, 6/08

Defense Digest

Florida - Construction Litigation

Is The Greathouse Case Really Great?
By John Viggiani, Esq.*

Last year, United States District Judge Richard Smoak decided the case of Greathouse v. Ceco Concrete Construction, LLC, 2007 U.S. Dist. Lexis 12656; 20 Fla. L.Weekly Fed. D. 530 (N.D. Fla. 2007). You may ask why is one judge's ruling or decision, especially that of a United States District Court Judge, so important to Florida law? The answer is because it is the first ruling or decision in Florida to interpret and/or apply Florida's new Horizontal Immunity law. This "new" Horizontal Immunity law was enacted in late 2003 and became effective January 1, 2004. Since being enacted, no case or decision had come down interpreting or applying this law until Judge Smoak's decision in Greathouse.

On October 1, 2003, the Florida Legislature enacted substantial modifications to the Florida workers' compensation laws, including statutory amendments effecting workers' compensation immunity. The most significant changes were to Florida Statutes 440.10 and 440.11. These changes have brought two type of immunity to the forefront of construction worksite accidents.

The first change was to Florida Statute 440.10 where the Legislature provided immunity between subcontractors called "Horizontal Immunity." In addition, the Legislature revised the existing workers' compensation immunity provisions under Florida Statute 440.11, creating a more stringent standard for employees as well as others trying to pursue liability claims against either the employer or persons or entities in vertical privity with the injured worker's employer. This is known as "Vertical Immunity."

Prior to October 1, 2003, Florida did not have Horizontal Immunity in any way, shape or form. The Legislature changed Florida Statute 440.10 to implement and put in place immunity for and between subcontractors. Effective January 1, 2004, an injured worker could only collect for an on-the-job injury allegedly caused by the acts, conduct or omissions of another subcontractor or subcontractor's employee if they are able to plead and prove that the worker was injured due to the subcontractor's own gross negligence. Also, the injured worker must also prove that the claimed gross negligence was the major contributing cause of the injury. This presents a substantially higher burden for a plaintiff or injured worker than just the general negligence standard.

In fact, the full language of the immunity portion of Florida Statute 440.10(1)(e) states as follows:

A subcontractor providing services in conjunction with a contractor on the same project or contract work is not liable for the payment of compensation to the employees of another subcontractor or the contractor on such contract work and is protected by the exclusiveness-of-liability provisions of §. 440.11 from any action at law or in admiralty on account of injury to an employee of another subcontractor, or of the contractor, provided that:

The subcontractor has secured workers' compensation insurance for its employees or the contractor has secured such insurance on behalf of the subcontractor and its employees in accordance with paragraph (b); and

The subcontractor's own gross negligence was not the major contributing cause of the injury.

This section of Florida Statute 440.10 needs to be read in conjunction with Florida Statute 440.11 (1). This section of the Statute provides that "the liability of an employer prescribed in §. 440.10 shall be exclusive and in the place of all other liability, including vicarious liability, of such employer to any third party and to the tortfeasor, and to the employee, the legal representative thereof, husband and 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 reason behind this statute is and was the Legislature's intent that subcontractors have and maintain workers' compensation insurance covering their employees for work-related accidents and injuries on construction sites. This is why a subcontractor must have secured workers' compensation insurance for its employees pursuant to Florida Statute 440.(1) (e) (1) to be able to be protected by the exclusiveness of liability or workers' compensation immunity.

In order for a plaintiff to assert the "gross negligence exception" to the workers' compensation immunity for subcontractors under Florida Statue 440.10, the plaintiff must plead and prove that the subcontractor's own gross negligence was the major contributing cause of injury or death to the plaintiff. It is the plaintiff who bears the burden of proof, not the subcontractor.

Judge Smoak in Greathouse was asked to apply Florida Statute 440.10 and its immunity to a summary judgment brought on behalf of Ceco Concrete Construction, LLC. In the Greathouse case, the plaintiff, Stevie Greathouse, at the direction of Ceco employees, was attempting to lift a concrete load with a 240-ton crane. Greathouse had successfully lifted the same load on 13 prior occasions during the course of this project. The Ceco employees were responsible for preparing the load and for signaling to Greathouse that it was fully suspended and ready for lifting.

On the day of the accident, the load became lodged in an elevator shaft. The Ceco employees had twice attempted to free the load from the shaft and on both occasions had signaled to Greathouse that the load was ready for lifting. On both attempts, however, the crane's efforts to lift the load were unsuccessful. Greathouse, sensing on both occasions that the load was snagged, stopped lifting and radioed the Ceco employees that the crane was unable to raise the load. Following each effort, the Ceco employees labored for approximately 30 to 40 minutes to dislodge the load.

The Ceco employees again directed Greathouse to try and lift the load for a third time. The efforts were futile. Sensing the load was still wedged in the shaft and immovable, Greathouse attempted to halt lifting actions of the crane. This time, however, Greathouse was unable to stop the lift before the crane collapsed, injuring Greathouse as well as two Ceco employees.

Mr. Greathouse filed suit alleging that Ceco was grossly negligent and that its gross negligence was the major contributing cause of his injuries. The plaintiff further contended that Ceco knew or should have known that its failures could have caused the crane to collapse and the totality of the actions "constituted a conscious indifference to the likelihood that Greathouse might or would be injured." Ceco moved for summary judgment contending that Greathouse had failed to demonstrate gross negligence as a matter of law. The plaintiff protested indicating that this was a triable issue of fact which needed to be decided by a jury.

Judge Smoak wrote that "the sole issue was whether a reasonable trier of fact could conclude that Ceco was grossly negligent." Judge Smoak went on to discuss the definition of gross negligence as outlined by Florida courts.

"The Supreme Court of Florida has defined 'gross negligence' as an act or omission that a reasonable, prudent person would know was likely to result in injury to another." Travelers Indem. Co. v. PCR, Inc., 889 So. 2d 779, 793 n.17 (Fla. 2004)(citations omitted). ... Reduced to its elements then, gross negligence requires the following:

A composite of circumstances which, together, constitutes an 'imminent' or 'clear and present' danger mounting to more than normal and usual peril;

A showing of chargeable knowledge or awareness of the imminent danger; and

The act or omission complained of must occur in a matter which evinces a 'conscious disregard of consequences,' as distinguished from a 'careless' disregard thereof (as in simple negligence) or from the more extreme 'willful or wanton' disregard thereof (as in culpable or criminal negligence.

Judge Smoak noted that in "assessing the sufficiency of the evidence for gross negligence, I am also guided by decisions from the Florida Supreme Court which require 'strict and narrow' interpretations of the exceptions to the 'broad exclusive remedy provisions' of Florida's Workers' Compensation Law." These cases indicate that "the worker's compensation statute is meant to systematically resolve nearly every workplace injury case on behalf of both the employee and the employer. A contrary holding giving wide breadth to the rare exceptions to worker's compensation would merely erode the purpose and function of the Workers' Compensation Law as established by the Legislature." Citing Taylor v. School Board, 888 So. 2d 1, 5 (Fla. 2004) (citing Samara Dev. Corp v. Marlow, 556 So. 2d 1097, 1100 (Fla. 1990), and Bombay Co. v. Bakerman, 891 So. 2d 555, 556-57 (Fla. 3rd DCA 2004).

In the Greathouse case, Judge Smoak put great value on the fact the parties had lifted an identical load, with the same crane, on 13 prior occasions during the project without incident. Based on these facts, he could not find that a jury would reasonably infer that "imminent" or "clear and present danger" existed such that the crane would collapse on its final attempt at lifting this load. Instead, he felt the inference most favorable to the plaintiff was that the crane was simply incapable of lifting the load in its final attempt because the load once again snagged. These facts do not permit support of the plaintiff's claim that the crane was likely to collapse.

With regard to the element of chargeable knowledge or awareness, again, Judge Smoak relied on these 13 prior incident-free occasions in determining there was no chargeable knowledge or awareness. In this regard, he cited Courtney v. Florida Transformer, Inc., 549 So. 2d 1061, 1065 (Fla. 1st DCA 1989), which stated "the fact that such conduct had occurred on prior occasions, without fatal consequences, creates an element of doubt concerning the employees' knowledge of the likelihood of imminent danger."

On the last element of voluntary act or omission evincing a conscious disregard for the likelihood of injury, Judge Smoak stated that without objective evidence indicating the crane was likely to collapse, an inquiry into Ceco's subjective state of mind was "superfluous." "It is the awareness and conscious disregard of the defendant which is at issue, not the observations of a sole observer in the distance."

It was based upon these facts that the court granted summary judgment for Ceco. Judge Smoak concluded that the burden is on the plaintiff to satisfy these stringent requirements of a gross negligence claim. Based upon the narrow construction of the exceptions to the workers' compensation laws required by the Florida Supreme Court, the requirements of a finding of gross negligence, and the applicable decisional authority, the plaintiffs in Greathouse had failed to demonstrate that Ceco was grossly negligent as a matter of law.

Lastly, Judge Smoak ruled that a genuine issue of fact existed only on the issue of whether Ceco was guilty of simple negligence, a question is wholly irrelevant to the case.

Judge Smoak's decision was appealed to the Eleventh District Court of Appeals and recently affirmed without comment.

As of the time of the writing of this article, this is the only decision in Florida to interpret Florida's new Horizontal Immunity statute. It is one that Giovanni Stewart, another attorney with Marshall, Dennehey, Warner Coleman & Goggin in Jacksonville, Florida, and I recently used in a trial in the fall of 2007 to obtain a defense verdict on behalf of our client, a sub-contractor. We have subsequently been told that our case was the first to actually go to verdict under the new Horizontal Immunity law. Our case is also presently on appeal to the First District Court of Appeals for the State of Florida, and we are likewise hoping the First District Court of Appeals follows the lead of Judge Smoak in the Greathouse decision.

*John is an associate our Jacksonville, Florida, office who can be reached at (904) 358-4221 or jjviggiani@mdwcg.com.