Fisher v. Shenandoah Gen. Const. Co.

• Decision Date: 26 November 1986
• Docket Number: No. 67451,67451
• Citation: 498 So.2d 882,11 Fla. L. Weekly 602
• Parties: 11 Fla. L. Weekly 602 John E. FISHER, et al., Petitioners, v. SHENANDOAH GENERAL CONSTRUCTION CO., et al., Respondents.
• Court: Florida Supreme Court

Page 882

498 So.2d 882

11 Fla. L. Weekly 602

John E. FISHER, et al., Petitioners, v. SHENANDOAH GENERAL CONSTRUCTION CO., et al., Respondents.

No. 67451.

Supreme Court of Florida.

Nov. 26, 1986.

Rehearing Denied Jan. 5, 1987.

Tyrie A. Boyer of Boyer, Tanzler & Boyer, Jacksonville, Richard A. Barnett of Richard A. Barnett, P.A., Hollywood, and Debra Levy Neimark of Neimark & Neimark, Coral Springs, for petitioners.

Jonathan L. Gaines and E. Bruce Johnson of Fleming, O'Bryan & Fleming, Ft. Lauderdale, for respondents.

Robert B. Miller of Friedman & Miller, North Miami Beach, for amicus curiae, The Academy of Florida Trial Lawyers.

Arthur J. England, Jr. and Charles M. Auslander of Fine, Jacobson, Schwartz, Nash, Block & England, P.A., Miami, for amicus curiae, Florida Power & Light Co.

McDONALD, Chief Justice.

The Fourth District Court of Appeal has certified the following question as being of great public importance:

DOES THE FLORIDA WORKERS' COMPENSATION LAW PRECLUDE ACTIONS BY EMPLOYEES AGAINST THEIR CORPORATE EMPLOYERS FOR INTENTIONAL TORTS EVEN THOUGH THE INJURIES WERE INCURRED

WITHIN THE SCOPE OF THEIR EMPLOYMENT.

Fisher v. Shenandoah General Construction Co., 472 So.2d 871, 873 (Fla. 4th DCA 1985) (footnote omitted). We have jurisdiction pursuant to article V, section 3(b)(4), Florida Constitution. Although the certified question confers jurisdiction upon this Court, we refrain from answering it because we do not view the question as germane to the facts alleged in the pleadings. See Cleveland v. City of Miami, 263 So.2d 573 (Fla.1972). Rather, we restate the certified question as follows:

WHETHER AN EMPLOYER COMMITS AN INTENTIONAL TORT WHEN HE ORDERS HIS EMPLOYEE TO WORK INSIDE A PIPE WHICH THE EMPLOYER KNOWS TO BE FILLED WITH DANGEROUS GAS THAT WILL IN ALL PROBABILITY RESULT IN INJURY TO THE EMPLOYEE.

We answer in the negative and approve the opinion of the district court in result only.

This case involves a suit against Shenandoah General Construction Company for the wrongful death of one of its employees, Shaun E. Fisher. Fisher, acting on his employer's orders, was cleaning the inside of an underground pipe with a high pressure hose when he succumbed to noxious methane gas fumes. His exposure to this gas ultimately led to his death and the personal representatives of his estate brought suit against Shenandoah.

The Florida Workers' Compensation Act provides for the payment of compensation benefits whenever disability or death results from an injury arising out of and in the course of employment. § 440.09(1), Fla.Stat. (1979). Section 440.11(1), Florida Statutes (1979), provides that compensation under the act is the exclusive remedy available to such an employee. Although Fisher's representatives readily admit that the deceased encountered the methane gas while in the course and scope of his employment, they argue that Shenandoah's conduct constituted an intentional tort and therefore does not fall within the scope of the act.

The trial court, apparently unpersuaded by this argument, dismissed the complaint due to the exclusivity provision of the act. On appeal, the fourth district affirmed that dismissal, ruling that intentional torts fall within the purview of the act and that, because the legislature has not specifically authorized common law actions for intentional torts against employers, the act prohibits this claim. The district court, however, expressly refrained from determining whether the complaint actually did state a cause of action sounding in intentional tort.

In our view the district court should not have addressed the relationship between intentional torts and the Workers' Compensation Act without first answering the threshold question of whether the second amended complaint stated a cause of action for intentional tort. Indeed, had the district court confronted this question directly, we believe the court would not have reached the broader issue of whether intentional torts fall within the purview of the act. The complaint alleges, inter alia, that Shenandoah required the deceased to enter pipes which it knew contained noxious fumes and which would "in all probability" cause injury or death. The complaint further alleges that Shenandoah failed to provide its workers with oxygen masks, gas detection equipment, rescue equipment, and other safety equipment, and otherwise failed to comply with OSHA regulations. Indeed, the complaint alleges that Shenandoah wilfully and wantonly required its employees to deliberately evade OSHA safety inspections so as to prevent the company from being cited for safety violations. Yet even assuming that these allegations are true, Shenandoah's failure to provide a safe workplace or to follow OSHA guidelines does not constitute an intentional tort.

In order for an employer's actions to amount to an intentional tort, the employer must either exhibit a deliberate intent to injure or engage in conduct which is substantially certain to result in injury or death. Spivey v. Battaglia, 258 So.2d 815 (Fla.1972); Reed Tool Co. v. Copelin, 689 S.W.2d 404 (Tex.1985). A strong probability is different from substantial certainty and cannot constitute intentional wrongdoing. Restatement (Second) of Torts § 500 comment f (1965). The complaint involved here does not allege such virtual certainty on the part of Shenandoah; rather, it speaks only in terms of probable injury. Such an allegation is insufficient in light of the strict interpretation that must be given to the definition of intentional tort. Such a strict reading is necessary because nearly every accident, injury, and sickness occurring at the workplace results from someone intentionally engaging in some triggering action. Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 161, 501 A.2d 505 (1985). In the words of Prosser,

[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 is not an intentional wrong.

Prosser & Keeton on Torts 36 (W. Keeton 5th ed. 1984) (footnote omitted). Because Shenandoah's conduct does not rise to the level of intentional wrongdoing, we do not reach the question of whether such an intentional tort would fall outside the scope of the act.

Although we can foresee instances where an intentional tort might occur within the scope of employment, the present case does not present such a situation. Therefore, we need not answer the question framed by the district court and, instead, we answer the restated question in the negative. We approve the result but quash the opinion of the district court.

It is so ordered.

BOYD, OVERTON and EHRLICH, JJ., concur.

ADKINS, J., dissents with an opinion, in which SHAW and BARKETT, JJ., concur.

ADKINS, Justice, dissenting.

I dissent. The second amended complaint filed by John E. and Lily May Fisher clearly states a cause of action sounding in intentional tort. Further, Workers' Compensation is not the exclusive remedy of an employee against an employer who commits an intentional tort within the scope of employment.

The majority acknowledges that Shaun E. Fisher was killed when his employer ordered him to clean, with a high-powered hose, the inside of an underground pipe containing deadly gases. The majority also concedes that the complaint alleged that Shenandoah failed to provide safety equipment or comply with safety regulations. However, the majority refused to acknowledge that the complaint stated a cause of action sounding in intentional tort because the complaint only alleged that Shenandoah knew "in all probability" that an injury would occur and failed to assert that Shenandoah exhibited a deliberate intent to injure or engage in conduct which was substantially certain to result in injury or death. The majority is wrong in two respects. First, and most unfortunately, the court finds that the precise wording in the complaint is determinative in deciding whether the plaintiffs alleged a prima facie case for intentional tort. The fact that the complaint, in one instance, used the term "in all probability" should not be determinative. Rather, the court should examine the complaint in its entirety before determining whether a prima facie case sounding in intentional tort has been alleged. Jones v. VIP Development Co., 15 Ohio St.3d 90, 472 N.E.2d 1046 (1984). Second, the majority overlooks allegations in the complaint that, even under the egregious standards set forth by the majority, clearly state a cause of action for intentional tort.

Count I of the original complaint alleges that the death was due to Shenandoah's failure to provide oxygen masks, gas detection equipment, and proper rescue equipment for employees whom Shenandoah knew would be exposed to deadly gases in the underground pipe. The complaint further alleged that Shenandoah failed to properly warn employees of the deadly underground gases and instruct in the proper means of avoiding serious injury or death. Fisher also alleged that Shenandoah deliberately and intentionally refused to comply with Occupational Safety Health Administration safety regulations despite prior citations. Finally, Fisher charged that Shenandoah required its employees to actively avoid safety inspections including requiring workers to perform certain jobs at night to avoid safety inspectors. Fisher's second amended complaint alleged that Shenandoah intentionally caused the decedent's death by requiring him to go into pipes which they knew contained noxious fumes. The complaint further alleged that Shenandoah knew that Shaun Fisher would be facing serious injury or death if he were to go into the pipe unprotected. Clearly, the second amended complaint states a cause of action sounding in intentional tort.

The majority...