Keith Jackson (Jackson) was employed by Publix Super Markets Inc (Publix). One of his co-workers was Edgar Ramos (Ramos). Ramos’ job was to use a vehicle called an “Ottawa tractor” to move trailers to loading bays. On the date of accident, while Ramos was reversing a trailer using such a tractor, Jackson was crushed between the trailer and the loading dock and suffered fatal injuries.
The reversing alarm on the tractor in question was broken and Ramos confirmed that he had known of this for some months. He had not reported this to maintenance nor completed an inspection report. Other maintenance inspections had not detected the error and the tractor was overdue for a safety inspection.
There had been other accidents at the distribution center, but none occurring in this manner.
Chalunda Boston, as personal representative of Jackson’s estate, sued Publix and Ramos for Jackson’s death, alleging an intentional tort by Publix and gross negligence by Ramos.
Publix and Ramos relied on the “worker’s compensation immunity” asserting that worker’s compensation benefits were the plaintiff’s exclusive remedy.
The applicable Florida law establishes a strict liability system of compensation whereby injured workers are guaranteed rapid compensation for work injuries but are precluded from bringing a common-law negligence action. An employer’s liability to pay workers compensation benefits took the place of any other liability to an employee, save for when the employer had committed an intentional tort causing injury or death. An intentional tort was defined to include circumstances where the employer engaged in conduct which they knew, based on prior similar accidents or on explicit warnings specifically identifying a known danger, was virtually certain to result in injury or death, and the injured employee was not aware of the risk because the danger was not apparent and the employer deliberately concealed or misrepresented the danger in order to prevent the employee making informed judgment about whether to do the work.
A similar immunity was available for co-workers, save for when the co-worker had acted with willful and wanton disregard or with gross negligence and their acts had caused injury or death․
Publix and Ramos sought summary judgment from the trial court. Summary judgment was granted on the grounds that the evidence did not show that Publix had done something which it knew was ‘virtually certain’ to injure or kill Jackson. It also found that the risks involved had not been concealed and that the danger should have been obvious to Jackson.
Boston appealed, triggering a de novo review of the summary judgment finding immunity.
Previous cases had noted that the ‘virtual certainty’ requirement meant a plaintiff had to show that a danger would cause an accident almost every time. There also had to be intentional and deceitful conduct by the employer.
The Court of Appeal found that the evidence did not support the exclusion of immunity: there was no evidence of prior similar accidents, and the defective backup alarm made an injury more likely but did not create a virtual certainty of one. Hence summary judgment was correctly given for Publix.
Concerning Ramos, the key issue was whether he had acted with gross negligence. Previous cases had defined gross negligence as an act or omission that a reasonable person would know is likely to injure another (1). There had to have been circumstances of “imminent” or “clear and present” danger amounting to more than normal and usual peril; also required were knowledge or awareness of the imminent danger and the action or omission occurring with “conscious disregard of consequences” as opposed to “careless” disregard (simple negligence) or the more extreme “willful or wanton” disregard (culpable or criminal negligence) (2). The evidence raised a ‘material issue of fact’ as to whether Ramos had acted with gross negligence and so summary judgment was not warranted.
The Court of Appeal affirmed the judgment for Publix but reversed that for Ramos and returned the matter to the trial court for further proceedings in respect of gross negligence.
(1) Arguably this a middling standard for gross negligence. Setting the standard lower, see R v Pittwood, 19 TLR 37 (Taunton Assizes, 1902). Setting it higher, see Andrews v DPP,  AC 576 (UK, 1937). Pittwood’s case can be difficult to locate – get in touch if you’d like a pdf of it.
(2) Cf R v Crabbe, 156 CLR 464 (Aust., 1985)