Florida: Surviving Spouse’s Fails to Establish Employee’s Death Was “Virtually Certain”

A Florida appellate court affirmed a trial court’s summary judgment favoring a general contractor in a civil action filed against it by the surviving spouse of an employee who was run over and killed by a dump truck while the employee worked at night on a highway construction project. Applying Florida’s “virtually certain” rule regarding intentional torts, the court agreed that a trier of fact could not find that the general contractor committed an intentional tort that fell within the statutory exception to immunity. The surviving spouse alleged that her husband, an asphalt surveyor, was required to walk along a dark highway project without adequate lighting and that the dump truck operator disobeyed a direct order by driving the truck backwards for almost a mile under conditions that made her husband’s fatal injuries virtually certain to occur. At the time of the accident, the deceased employee was walking away from the truck and speaking on the radio with his supervisor and, therefore, did not hear the truck as it neared him.

Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is the co-author of Larson’s Workers’ Compensation Law (LexisNexis).

LexisNexis Online Subscribers: Citations below link to Lexis Advance. Bracketed citations link to lexis.com.

See Moradiellos v. Community Asphalt Corp., 2015 Fla. App. LEXIS 8457 (3rd DCA, June 3, 2015) [2015 Fla. App. LEXIS 8457 (3rd DCA, June 3, 2015)]

See generally Larson’s Workers’ Compensation Law, § 103.04 [103.04]

Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law.

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