Bakerman v. The Bombay Co., Inc.
| Decision Date | 21 June 2007 |
| Docket Number | No. SCO5-358.,SCO5-358. |
| Citation | 961 So.2d 259 |
| Parties | Martin BAKERMAN, Petitioner, v. THE BOMBAY COMPANY, INC., et al., Respondents. |
| Court | Florida Supreme Court |
Barbara Green, Miami, FL, and Robert N. Pelier, Coral Gables, FL, for Petitioner.
Robert E. Biasotti of Carlton Fields, P.A., St. Petersburg, FL, and Christine R. Davis of Carlton Fields, P.A., Tallahassee, FL, for Respondent.
Valerie A. Fernandez and Steven G. Gieseler, on behalf of Pacific Legal Foundation, Coral Gables, FL, as Amicus Curiae.
We have for review Bombay Co. v. Bakerman, 891 So.2d 555 (Fla. 3d DCA 2004), which expressly and directly conflicts with the decision of this Court in Turner v. PCR, Inc., 754 So.2d 683 (Fla.2000). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. For the reasons explained below, we quash the decision of the Third District in Bombay.
In September 1997, Martin Bakerman was injured in a fall from a ladder while employed at a Bombay Company retail store. Employees of the store constantly used the ladder to stock and retrieve sales merchandise from shelves in the Bombay storeroom. The storeroom in which the ladder was used was small and crowded, with shelves of merchandise extending several feet overhead. The ladder used was a wooden A-frame type that had been in use in the storeroom for a number of years. The poor condition of the ladder was apparent. It was old, wobbly, and undersized for its purpose, such that employees would have to balance on top of the ladder in order to retrieve merchandise from the uppermost shelves. Because of its bad condition, the ladder would increasingly sway from side to side when someone climbed it. The only way to stop the swaying was to hold on to the shelves with one hand while retrieving merchandise with the other hand. It was sometimes necessary, as in this instance, to stand on the top step of the ladder in order to reach customer merchandise from the upper shelves. Furthermore, the ladder's feet were not fitted with rubber traction shoes and were cut at an angle for increased stability while in the open position. However, because there was insufficient space in which to open the ladder, it was usually leaned against the shelves with its legs closed. It was estimated that the ladder was used dozens of times each day by the employees, and Bakerman himself had used it hundreds of times without incident.
Bakerman complained about the danger to his store manager, who also used the ladder. The store manager testified that she, in turn, had repeatedly complained to Bombay Company's district manager and asked for a new ladder. The district manager testified that he did not recall the requests.
While at the top of the ladder trying to retrieve merchandise, Bakerman momentarily let go of the shelves and fell from the ladder. This fall pulverized the bones of Bakerman's left heel. Bakerman received workers' compensation benefits during his recovery but later sued Bombay, claiming that Bombay's actions constituted an intentional tort. At trial, Bombay asserted workers' compensation immunity in an unsuccessful motion for a directed verdict. By denying Bombay's motion for a directed verdict, the trial judge determined that the issue presented a question for the jury — whether the employer knew or should have known that its failure to replace the defective ladder was substantially certain to result in the injury or death of an employee. The jury concluded that the conduct was substantially certain to result in Bakerman's injury. As a result, the jury found Bombay sixty-seven percent liable and Bakerman thirty-three percent liable. After reduction for comparative fault, judgment was entered in favor of Bakerman for $118,228.20. Bombay appealed.
On appeal, Bombay asserted that the evidence was legally insufficient to support the verdict. On rehearing of its initial decision, the Third District reversed the trial court judgment and remanded the case for entry of judgment in favor of Bombay. The district court referred to this Court's decision in Turner v. PCR, Inc., 754 So.2d 683 (Fla.2000), to emphasize that the cases finding liability under the intentional tort exception contain "a common thread of evidence that the employer tried to cover up the danger, affording the employees no means to make a reasonable decision as to their actions." Bombay, 891 So.2d at 557 (quoting Turner, 754 So.2d at 691). Lacking any allegation of concealment of the danger and finding that the danger was evident to Bakerman, the Third District determined that the evidence was legally insufficient to support liability under the intentional tort exception to workers' compensation immunity and remanded the case for entry of judgment in favor of Bombay.1
The question before us is whether the substantial certainty test of the intentional tort exception to workers' compensation immunity has as an indispensable requirement that the employer conceal danger from the employee. This is a question of law subject to the de novo standard of review. See D'Angelo v. Fitzmaurice, 863 So.2d 311, 314 (Fla.2003) (); see also Armstrong v. Harris, 773 So.2d 7, 11 (Fla.2000) ().
Florida Workers' Compensation law sets forth a comprehensive scheme that provides disability and medical benefits to workers who are injured on the job during the course of their employment. See generally §§ 440.01-440.60, Fla. Stat. (2006). The system is "based on a mutual renunciation of common-law rights and defenses by employers and employees alike." § 440.015, Fla. Stat. (2006). Injured employees who fall within the scope of its provisions are to be swiftly provided compensation and necessary medical benefits by the employer, irrespective of fault as a cause of the injury. See §§ 440.09, 440.10(2), Fla. Stat. (2006). In exchange employers that comply with the provisions of the chapter are given immunity from civil suit by the employee, except in the most egregious circumstances. See § 440.11, Fla. Stat. (2006).
When an employer commits an intentional tort against an employee, it may be subject to civil action under a narrow exception to workers' compensation immunity. In Fisher v. Shenandoah General Construction Co., 498 So.2d 882 (Fla.1986), we held that "[i]n 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." Id. at 883.2 In Turner v. PCR, Inc., 754 So.2d 683 (Fla.2000), this Court reaffirmed the existence of an intentional tort exception to workers' compensation immunity, requiring an objective analysis to "measure whether the employer engaged in conduct which was substantially certain to result in injury." Id. at 691.3 The district court in Turner affirmed the trial court's grant of summary judgment for the employer, noting that the specific type of accident that resulted in the employee's death had never before occurred at the employer's plant. Applying the substantial certainty standard, this Court quashed that decision. Although we emphasized that the employee maintains the ultimate burden of demonstrating substantial certainty to the jury, we found that there was a genuine issue of material fact produced by the experts' affidavits. "Under an objective test for the substantial certainty standard, an analysis of the circumstances in a case would be required to determine whether a reasonable person would understand that the employer's conduct was `substantially certain' to result in injury or death to the employee." Id. at 688.
In the instant action, Bakerman contends that the Third District's decision conflicts with this Court's decision in Turner by adding a concealment of danger requirement to the objective substantial certainty standard. In reviewing the instant case on rehearing, the Third District acknowledged the applicable law and noted that the issue presents a jury question as to whether the employer had engaged in conduct that was substantially certain to result in injury or death. Bombay, 891 So.2d at 557. However, the Third District additionally said:
Of particular interest here, the Turner decision also points out that the cases finding liability under the intentional tort exception contain a "common thread of evidence that the employer tried to cover up the danger, affording the employees no means to make a reasonable decision as to their actions." 754 So.2d at 691 ().
That element is missing here. Here, as in Emergency One, the dangerous condition was evident to the employee and there was no concealment of the danger. For that reason we conclude that the evidence was legally insufficient to support liability under the intentional tort exception to workers' compensation immunity. Accordingly, we reverse the judgment and remand for entry of judgment in favor of Bombay.
Bombay, 891 So.2d at 557 (emphasis added). Thus, the court in Bombay effectively held concealment to be an indispensable criterion of the substantial certainty analysis of the intentional tort exception. As a result, an employer will enjoy immunity from civil suit unless the employee can affirmatively show that there was concealment of danger by the employer.
While Turner notes the existence of concealment by the employer in some of the cases, Turner does not hold that as a matter of law concealment is a necessary element of the substantial certainty analysis. Neither Cunningham v. Anchor Hocking Corp., 558 So.2d 93 (Fla. 1st DCA 1990), nor Connelly v. Arrow Air, Inc., 568 So.2d 448 (Fla. 3d DCA 199...
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