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From The Desk of Bucky Hurt

February 1, 2013

 

EMPLOYEES UNABLE TO MEET "EXTREMELY STRICT
EXCEPTION" TO WORKERS' COMPENSATION IMMUNITY

 

In two decisions issued on January 23, 2013, the 4th DCA shut the door on the employees' attempt to circumvent workers' compensation immunity and file direct civil actions against their employers. First, in Gorham v. Zachary Industrial, Inc., the 4th DCA affirmed summary judgment in favor of an employer who had allegedly permitted operation of a crane despite knowledge of dangerous wind conditions, ultimately leading to an industrial accident causing serious injuries to the crane operator.

The 4th DCA explained that in order to overcome an employer's workers' compensation immunity under §440.11(1)(b)(2), an employee is required to prove by clear and convincing evidence:

  1. Employer knowledge of the known danger (based upon prior similar accidents or explicit warnings identifying the danger) that was virtually certain to cause injury or death to the employee;

  2. The employee was not aware of the danger because it was not apparent; and

  3. Deliberate concealment or misrepresentation by the employer, preventing the employee from exercising informed judgment as to whether to perform the work.

The 4th DCA found there was no evidence that the employer knew that the wind speed had been in excess of what was deemed safe and that operating the crane under such conditions would with virtual certainty produce injury or death.

In List Industries, Inc. v. Dalien, the 4th DCA reversed a $2.7 million jury verdict and final judgment in favor of an employee who had suffered an amputation injury while operating machinery in the manufacturing of steel lockers. Despite the employee demonstrating by clear and convincing evidence that there had been prior accidents with the employer's manufacturing process, the 4th DCA noted that these prior accidents had not been "similar" and thus, were insufficient to prove that the subject accident was "virtually certain" to occur as the statute requires.

The 4th DCA also held that the employee had not proven by clear and convincing evidence that he was unaware of the risk, that the danger was not apparent and that the employer had deliberately concealed or misrepresented the danger so as to prevent him from exercising informed judgment about whether to perform the work. The 4th DCA held that the trial court had erred by not entering a directed verdict in favor of the employer.

Importantly, the 4th DCA in Gorham stated that in 2003 "the legislature adopted an extremely strict exception [to workers' compensation immunity] which, we suspect, few employees can meet. To date, we have not found, nor has a case been cited to us, where an employer has lost immunity [under the 2003 amendments] for its conduct." Further, in List, the 4th DCA recommended that given the stringent standard required for an employee to overcome workers' compensation immunity, trial courts should act as gatekeepers by deciding these issues on summary judgment during the initial stages of litigation.


 

This summary was prepared by John P. Daly of our firm.


John P. Daly

Below my signature block you will find the opinions.


Jennings L. Hurt III
Managing Partner
Rissman, Barrett, Hurt,
Donahue & McLain, P.A.
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Email: bucky.hurt@rissman.com
www.rissman.com

 

38 Fla. L. Weekly D183a


Torts -- Workers' compensation -- Exclusive remedy -- Exceptions -- Intentional torts -- Action against employer by employee who was injured during process of setting a wall on a construction project when wind caused wall to sway while it was being lifted -- Trial court properly granted summary judgment in favor of employer based on workers' compensation immunity where plaintiff-employee failed to prove that employer engaged in conduct virtually certain to result in injury or death to employee

ROGER GORHAM, Appellant, v. ZACHRY INDUSTRIAL, INC., Appellee. 4th District. Case No. 4D11-2620. January 23, 2013. Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Lucy Chernow Brown, Judge; L.T. Case No. 502008CA016510. Counsel: Kenneth B. Schwartz, West Palm Beach, for appellant. James H. Wyman of Hinshaw & Culbertson LLP, Fort Lauderdale, for appellee.

(Warner, J.) Appellant challenges the trial court's summary judgment in his personal injury claim against his employer. The trial court concluded that the employer had worker's compensation immunity based upon the facts of the case. The appellant contends that material issues of fact remained as to whether he met the exception for employer immunity set forth in section 440.11, Florida Statutes. We agree with the trial court that, based upon the narrow exception adopted by the Legislature that an employer must know that its conduct is virtually certain to cause injury, the employer is entitled to immunity.

Appellant, Gorham, an employee of appellee, Zachry Industrial, Inc., sued Zachry in June 2008, alleging an intentional tort causing injury to appellant while he was working on a construction project. Zachry had contracted with Florida Power & Light ("FPL") to build a natural gas plant in Loxahatchee, Florida. During the process of setting a wall at the plant, Gorham was injured. To avoid Zachry's statutory worker's compensation immunity from tort, he alleged in his complaint that Zachry "engaged in conduct that it knew based on explicit warnings specifically identifying a known danger was virtually certain to result in injury or death to [Gorham]," and that Gorham "was not aware of the risk because the danger was not apparent and [Zachry] deliberately concealed or misrepresented the danger so as to prevent [Gorham] from exercising informed judgment about whether to perform the work." Gorham sought damages based on the accident.

The incident in which Gorham was injured occurred while Gorham was working as a rigger on the FPL power plant construction site. On the day of the accident, the crew was attempting to lift and place a nine-ton wall. Two cranes were available to lift the large pre-fabricated wall into place. A tag line to keep the wall from swaying as the crane lifted the wall was attached to the wall, and because of the danger of swaying, attention to the wind speed was very important. On the day before the incident, the general foreman cancelled this lift because the winds were over 20 miles per hour.

That morning, the general foreman and the supervising foreman conducted a safety meeting with the crew. They filled out a Safety Task Assignment form. The form contained questions such as "How Can I Get Hurt." The supervisor filled in "Bad Weather." Another entry asked "How Can I Keep From Getting Hurt," and the supervisor wrote, "Watch for lightning & high winds." The entire crew, including Gorham, signed the form.

The morning of the incident Gorham participated in the first lift, in which the wall was raised slightly. Gorham said he didn't feel any wind. The crane operator could not check the wind speed, however, because his crane did not have an anemometer, although he noted that there was no wind at 10:15 a.m. Even so, the crane operator radioed the general foreman to ascertain if he had checked the wind speed, who said that he had, and the speed was 16-18 miles per hour. The crane operator, however, recalled that the foreman told him the speed was 12-15 miles per hour.

At the time of the lift, Gorham was on the tag line. The general foreman sounded the horn, meaning that the lift would commence. After the wall was vertical, Gorham walked over to help others disconnect shackles off the wall. The crane operator began to move the wall alongside the cooling tower near the site, and once the wall got into that area, "[t]he wind owned it." Gorham tried to stabilize the wall, which then began dragging Gorham.

The crane operator sounded the emergency horn, which means that "everybody is supposed to run" and "[l]et it go." Gorham, however, did not let go, grabbed a rope around his arm, and wrapped his arm around the tag line. The crane operator pulled the swinging wall up against the stack to stop the movement. The operator told the general foreman that the wind grabbed the wall as it came around the corner and that Gorham was holding onto the rope at the time. Gorham received significant injuries to his arm.

The crane operator waited for the wind to die down for forty-five minutes to an hour and then made the second attempt. In the meantime, he checked the wind again, which was varying between 5 and 25 mph. The wind continued to cause difficulties in completing the second lift.

In his deposition, Gorham testified that he thought that the general foreman had not checked the wind speed, even though the crane operator had called him for a check. Gorham was certain that no one checked the wind speed, except for at 8 a.m. that morning, while the lift occurred around noon. He testified, however, that because he was on the tag line (which would be more dangerous in higher winds), he, too, asked the general foreman to check the wind, although he did not believe that the foreman actually checked the wind.

Contrary to Gorham's testimony, the general foreman said that Gorham had not personally asked him to check the winds. Nevertheless, he had checked the winds as requested by the supervising foreman, and they were at 16-18 miles per hour. As noted above, the crane operator recollected that the general foreman had reported winds between 12 to 15 miles per hour, because he would not have made the lift if the winds were 18 miles per hour. Gorham testified that it was the crane operator who told him after the incident that the winds had not been checked.

Gorham admitted that "[t]he wind is the first" danger in performing such a lift, since it "is always a factor." He said, "The weather is 90 percent of it." He admitted that he had always been aware of these dangers. However, Gorham testified that even with this knowledge, he "counted on [the foreman] to tell me, either make the lift or not make the lift." Additionally, Gorham stated that even though he thought the wind speed "had to be over 30 miles an hour," he "was kind of under the impression that the wind speed was fine because of what I got from my general foreman . . . that the wind was fine is exactly what I was told." Before the lift, however, another crew member and Gorham had a conversation in which both agreed that while there may not be a problem with the wind standing the wall up, there may be a problem setting it.

However, Gorham also testified that the general foreman "may have" told him that the wind speed was 12 or 18 miles per hour, at which point Gorham would have admittedly gone ahead with the lift. Gorham also acknowledged that when he was walking the entire path of the lift before the lift, he observed sand blowing off the ground "[r]ight in front of the crane," which made him believe that "[t]he wind was too high through the whole thing."

Zachry moved for summary judgment. In its motion, Zachry argued that there are no disputed issues of material fact on the question of whether it was entitled to immunity under section 440.11(1), Florida Statutes, which provides for workers' compensation immunity when the plaintiff is provided with workers' compensation. After a lengthy hearing on all the issues, the court granted the summary judgment, ruling that Gorham did not demonstrate the statutory requirements for the exception to workers' compensation immunity. First, the employer did not know, as a result of an explicit warning of a known danger, that there was a virtual certainty that injury or death would occur as a result of the lift. Second, Gorham was aware of the risks involved, and no evidence showed that the employer deliberately misled him into taking a risk. Gorham appeals this summary judgment.

We review such a summary judgment de novo. Bender v. CareGivers of Am., Inc., 42 So. 3d 893, 894 (Fla. 4th DCA 2010). "When reviewing a ruling on summary judgment, an appellate court must examine the record in the light most favorable to the non-moving party; the burden is upon the moving party to show conclusively the complete absence of any genuine issue of material fact." Harvey v. Deutsche Bank Nat. Trust Co., 69 So. 3d 300, 303 (Fla. 4th DCA 2011). In considering a summary judgment, the trial court determines only whether the moving party has proved a negative -- the non-existence of a material fact. Winston Park, Ltd. v. City of Coconut Creek, 872 So. 2d 415, 418 (Fla. 4th DCA 2004).

Section 440.11, Florida Statutes, provides for immunity of an employer from personal injury suits for work-related injuries. It also includes an exception for intentional torts:

The liability of an employer . . . 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 . . . except . . . [w]hen an employer commits an intentional tort that causes the injury or death of the employee. For purposes of this paragraph, an employer's actions shall be deemed to constitute an intentional tort and not an accident only when the employee proves, by clear and convincing evidence, that[ ] . . . [t]he employer engaged in conduct that the employer knew, based on prior similar accidents or on explicit warnings specifically identifying a known danger, was virtually certain to result in injury or death to the employee, and the employee was not aware of the risk because the danger was not apparent and the employer deliberately concealed or misrepresented the danger so as to prevent the employee from exercising informed judgment about whether to perform the work.

§ 440.11(1)(b)2., Fla. Stat. Thus, the elements which the employee must prove for the intentional tort exemption to workers compensation immunity are: 1) employer knowledge of a known danger, based upon prior similar accidents or explicit warnings specifically identifying the danger that was virtually certain to cause injury or death to the employee; 2) the employee was not aware of the danger, because it was not apparent; and 3) deliberate concealment or misrepresentation by the employer, preventing employee from exercising informed judgment as to whether to perform the work. Id. See also Fla. Std. Jury Instr. (Civ.) 414.5. All three elements must be proved by clear and convincing evidence to overcome statutory immunity of the employer.

"Essentially, under this no-fault system, the employee gives up a right to a common-law action for negligence in exchange for strict liability and the rapid recovery of benefits." Turner v. PCR, Inc., 754 So. 2d 683, 686 (Fla. 2000). The language of the current version of the statute, which is applicable in this case, was adopted by the Legislature in 2003 as a reaction to Turner, in which the court adopted an objective, but less stringent, construction of the intentional tort exception. Our supreme court acknowledged that the virtual certainty standard of employer conduct adopted by the Legislature is more strict than the standard of Turner. See Travelers Indem. Co. v. PCR Inc., 889 So. 2d 779 (Fla. 2004). The court compared it to the standard used in New Jersey under a similar law:

This newly enacted, virtual-certainty standard is similar to the standard adopted by the New Jersey Supreme Court in Millison v. E.I. duPont de Nemours & Co., 101 N.J. 161, 501 A.2d 505 (1985). . . .

The strictness of the Millison standard (and its similarity to Florida's newly enacted, virtual-certainty standard) was revealed not only by the New Jersey Supreme Court's articulation, but also by its application of the standard. Millison held that the employees' claim that their employer knowingly allowed them to be exposed to asbestos and concealed from them the known dangers of such exposure "c[a]me up short of the 'substantial certainty' needed to find an intentional wrong resulting in avoidance of the exclusive-remedy bar of the compensation statute." 501 A.2d at 514-15. By contrast, the court held that the employees' second claim did meet the standard. That claim alleged that the employer (through workplace physical examinations performed by company doctors) learned that the employees were suffering from asbestos-related diseases and fraudulently concealed this fact from the employees. Id. at 516 ("These allegations go well beyond failing to warn of potentially-dangerous conditions or intentionally exposing workers to the risks of disease. There is a difference between, on the one hand, tolerating in the workplace conditions that will result in a certain number of injuries or illnesses, and, on the other, actively misleading the employees who have already fallen victim to those risks of the workplace. . . . Such intentionally-deceitful action goes beyond the bargain struck by the Compensation Act.").

Id. at 783 n.5. Millison relied on Prosser on Torts and its definition of intentional conduct:

"[T]he mere knowledge and appreciation of a risk-something short of substantial certainty-is not intent. The defendant who acts in the belief or consciousness that the act is causing an appreciable risk of harm to another may be negligent, and if the risk is great the conduct may be characterized as reckless or wanton, but it is not an intentional wrong."

Id. 501 A.2d at 514 (quoting W. Prosser & W. Keeton, The Law of Torts § 8, at 36 (5th ed. 1984)). Our Legislature has taken this one step further and required virtual certainty, even more stringent than substantial certainty.

Based on this strict standard, Zachry met its obligation of proving the non-existence of the elements supporting an exclusion from statutory immunity. No evidence supports the requirement that "[t]he employer engaged in conduct that the employer knew, based on prior similar accidents or on explicit warnings specifically identifying a known danger, was virtually certain to result in injury or death to the employee." § 440.11(1)(b)2., Fla. Stat. To prove that, there must be evidence that Zachry, through its foreman, knew that the wind speed was in excess of what was safe to perform the lift and that lifting in that condition would with virtual certainty produce injury or death. While there is a dispute as to whether the foreman even took readings, taking the evidence in favor of Gorham, it can be said that he did not take the wind readings and allowed the lift to occur not knowing what the wind speed was.

However, there is no evidence that such a lift would with virtual certainty cause injury. Indeed, that afternoon the lift was performed without any injuries, even in increasing wind speeds. The employer's conduct may be grossly negligent, but as noted in Prosser, it is not intentional. Zachry writes in its brief, "Gorham in essence alleged nothing more than withholding knowledge of a potentially dangerous condition . . . . Even if he had been able to establish as much, this is patently insufficient to show conduct that is 'virtually certain' to result in injury or death." We agree.

Because the employer furnishes workers compensation to its employees on a strict liability basis, the exception to immunity from suit was drawn narrowly by the Legislature. Indeed, after Turner, the Legislature adopted an extremely strict exception which, we suspect, few employees can meet. To date, we have not found, nor has a case been cited to us, where an employer has lost its immunity for its conduct.

Written in the conjunction, the statute requires satisfaction of all three of its elements to warrant an exception to the employer's statutory immunity. As the evidence conclusively shows the absence of a material fact on the second element, the trial court correctly entered summary judgment for the employer.

Affirmed. (Stevenson, J., and Stone, Barry J., Senior Judge, concur.)


 

38 Fla. L. Weekly D186a

 

Torts -- Workers' compensation -- Exclusive remedy -- Exceptions -- Intentional tort -- Action against employer by plaintiff who suffered amputation of significant portion of dominant hand while operating press brake machine -- Trial court erred in failing to direct verdict in favor of employer on ground of workers' compensation immunity where employee failed to prove by clear and convincing evidence that employer was virtually certain that operating the press brake machine would result in injury to employee and failed to prove by clear and convincing evidence that plaintiff was unaware of risk, that danger was not apparent, or that employer concealed or misrepresented danger so as to prevent plaintiff from exercising informed judgment about whether to perform the work -- Court notes that given stringent standard required to overcome employer's statutory immunity, this issue is amenable to being decided on summary judgment -- Remand with instructions to enter directed verdict in favor of employer

LIST INDUSTRIES, INC., Appellant, v. PHITEAU DALIEN, individually, and PHITEAU DALIEN, as parent and natural guardian of DIMITRI DALIEN, a minor, Appellees. 4th District. Case No. 4D11-2802. January 23, 2013. Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Patti Englander Henning, Judge; L.T. Case No. CACE 07-009372 (18). Counsel: Sharon C. Degnan of Kubicki Draper, Fort Lauderdale, for appellant. Pamela Beckham of Beckham & Beckham, P.A., Miami, and Ronald D. Rodman of Friedman, Rodman & Frank, P.A., Miami, for appellee.

(Cox, Jack S., Associate Judge.) In this worker's compensation immunity case, an employer appeals 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. The accident occurred on August 23, 2005, and is controlled by section 440.11(1)(b)(2), Florida Statutes (2005).

List Industries, Inc., the employer, manufactures steel lockers. In its facility, it uses a variety of different industrial machines to cut, bend, and form the parts used in the manufacturing process. Phiteau Dalien was an employee operating a large machine called a Press Brake. The Press Brake was built in the 1960s and had never been modified in any substantial way. The Press Brake uses 60 tons of force to bend and shape steel. The operator inserts a sheet of steel into a horizontal slot in the machine. When the steel is properly positioned, the operator activates the machine by using a foot pedal. Activation by the foot pedal causes the Press Brake to push the die into the steel, 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 is the process that caused the injury.

The employer contends that the trial court erred in denying its motion for directed verdict since the employee failed to present "clear and convincing evidence" of each of the three indispensable elements in Section 440.11(1)(b)(2), Florida Statutes (2005). We agree and reverse.

2003 was an important year in this area of the law. That year, the Florida Legislature effectively overruled the case of Turner v. PCR, Inc., 754 So. 2d 683 (Fla. 2000), when it amended Section 440.11 to codify the "intentional tort exception" to an employer's workers compensation immunity recognized by the Supreme Court in Turner. In the revised statute, the Legislature mandated that the plaintiff/employee prove the "intentional tort exception" by clear and convincing evidence. Moreover, it replaced a "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." See Pendergrass v. R.D. Michaels, Inc., 936 So. 2d 684, 689 n.1 (Fla. 4th DCA 2006).

The change from "substantial certainty" to "virtually certain" is an extremely different and a manifestly more difficult standard to meet. It would mean that a plaintiff must show that a given danger will result in an accident every -- or almost every -- time.

Pendergrass further reminds us that while remedial legislation is generally interpreted liberally in favor of the errors to be corrected, the Florida Legislature has specifically rejected such an interpretation for the Worker's Compensation Law. Id. at 688; § 440.015, Fla. Stat. (2005).

Because this accident occurred in 2005, this version of the statute controls this case:

Exclusiveness of liability. --

(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 tort-feasor 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, except as follows:
. . .

(b) When an employer commits an intentional tort that causes the injury or death of the employee. For purposes of this paragraph, an employer's actions shall be deemed to constitute an intentional tort and not an accident only when the employee proves, by clear and convincing evidence, that:

1. The employer deliberately intended to injure the employee; or

2. The employer engaged in conduct that the employer knew, based on prior similar accidents or on explicit warnings specifically identifying a known danger, was virtually certain to result in injury or death to the employee, and the employee was not aware of the risk because the danger was not apparent and the employer deliberately concealed or misrepresented the danger so as to prevent the employee from exercising informed judgment about whether to perform the work.

§ 440.11, Fla. Stat. (2005). On its face, the statute requires the employee to prove by "clear and convincing evidence" that the employer's actions constituted "an intentional tort and not an accident." Proof by clear and convincing evidence of a non-intentional tort is not sufficient to avoid the employer's statutory immunity.

In adopting the Worker's Compensation Law, the Legislature made its intent clear:

Legislative Intent. -- It is the intent of the Legislature that the Worker's Compensation Law be interpreted so as to assure the quick and efficient delivery of disability and medical benefits to an injured worker and to facilitate the worker's return to gainful reemployment at a reasonable cost to the employer. It is the specific intent of the Legislature that workers' compensation cases shall be decided on their merits. The workers' compensation system in Florida is based on a mutual renunciation of common-law rights and defenses by employers and employees alike. In addition, it is the intent of the Legislature that the facts in the workers' compensation case are not to be interpreted liberally in favor of either the rights of the injured worker or the rights of the employer. Additionally, the Legislature hereby declares that disputes concerning the facts in workers' compensation cases are not to be given a broad liberal construction in favor of the employee on the one hand or of the employer on the other hand, and the laws pertaining to workers' compensation are to be construed in accordance with the basic principles of statutory construction and not liberally in favor of either employee or the employer. It is the intent of the Legislature to ensure the prompt delivery of benefits to the insured worker.

§ 440.015, Fla. Stat. (2005).

Assuming an employer's compliance with the requisite provisions of Chapter 440, the statute gives an employer "immunity from civil suit by the employee, except in the most egregious circumstances." Bakerman v. The Bombay Co., Inc., 961 So. 2d 259, 262 (Fla. 2007); see also Turner v. PCR, Inc., 754 So. 2d 683, 686 (Fla. 2000) (describing employer's immunity "from common-law negligence suits for employers covered by the statute"); Lovering v. Nickerson, 72 So. 3d 780, 781 (Fla. 5th DCA 2011) (describing employers' immunity as one "from liability"). The system is "based on a mutual renunciation of common-law rights and defenses by employers and employees alike." Bakerman, 961 So. 2d at 261 (quoting § 440.015, Fla. Stat. (2006)). A civil personal injury lawsuit by an employee against an employer under section 440.11 was intended to be the rarest of exceptions to the immunity granted to the employer.

This employee certainly proved that the employer's conduct was negligent. A negligence claim is supported by the facts. Safety guards for the machine were not used. The foot pedal was covered with grease and debris. No videos were used to educate the employee. Nevertheless, the statute has eliminated the employee's common law right to bring a negligence action against the employer. The employee's exclusive remedy is provided for under the Worker's Compensation Law.

In this case, 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. But the employee did not prove by clear and convincing evidence that there were prior "similar" accidents on this machine. Given that, the employee 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.

Also, the employee did not prove 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.

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. For example, with regard to a commercial wood chipper used by a tree trimming company, a person just has to see it operate to know that it is dangerous. The Press Brake in this case is just such a machine. The employee had seen the Press Brake in action many times and had watched others operating it. There can 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. He was trained on the equipment and he was supervised in its operation. He had operated the equipment for more than a month before the accident occurred. The danger had to have been apparent to the employee. Therefore, the employee did not prove by clear and convincing evidence that he was not aware of the risk or that the employer concealed or misrepresented the danger of the Press Brake, as required by section 440.11(1)(b)(2).

Given the posture of the case, the trial court erred by not entering a directed verdict in favor of the employer.

We write separately to note that given the stringent standard required to overcome an employer's statutory immunity, this issue is amenable to being decided on summary judgment. As Judge Altenbernd has observed,

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. The goal of this policy is to avoid lawsuits at the outset, not simply to prevent adverse verdicts against employers and coworkers at the end of lengthy litigation. If the trial courts are to foster these legislative policies, they must serve as gatekeepers at the initial stages of litigation.

Fleetwood Homes of Florida, Inc. v. Reeves, 833 So. 2d 857, 864-65 (Fla. 2d DCA 2002) (emphasis added), rev'd on other grounds, 889 So. 2d 812 (Fla. 2004); see also Reeves, 889 So. 2d at 823 (Wells, J., concurring); Fla. R. App. P. 9.130(a)(3)(C)(v) (providing for appellate review of non-final orders which determine "that, as a matter of law, a party is not entitled to workers' compensation immunity"). The case before us demonstrates how the "quick and efficient" intention of the statute is subverted when the immunity issue was allowed to avoid early determination by the trial court.

Therefore, we reverse and remand to the trial court with instructions to enter directed verdict in favor of the Appellant, List Industries, Inc. and against the Appellee, Phiteau Dalien, individually, and Phiteau Dalien, as parent and natural guardian of Dimitri Dalien, a minor. In light of this resolution, we do not reach the other issue raised by the employer on appeal.

Reversed and remanded with instructions. (Gross and Conner, JJ., concur.)


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