Brown v. Winn-Dixie Montgomery, Inc.

• Decision Date: 07 May 1985
• Docket Number: WINN-DIXIE,No. AL-219,AL-219
• Citation: 10 Fla. L. Weekly 1129,469 So.2d 155
• Parties: 50 Fair Empl.Prac.Cas. (BNA) 458, 10 Fla. L. Weekly 1129 Vicki BROWN and Lester Paul Brown, Appellants, v.MONTGOMERY, INC., Appellee.
• Court: Florida District Court of Appeals

Page 155

469 So.2d 155

50 Fair Empl.Prac.Cas. (BNA) 458, 10 Fla. L. Weekly 1129

Vicki BROWN and Lester Paul Brown, Appellants, v. WINN-DIXIE MONTGOMERY, INC., Appellee.

No. AL-219.

District Court of Appeal of Florida,

First District.

May 7, 1985.

Michael Wm. Mead, Fort Walton Beach, for appellants.

Kenneth G. Mall, Mary Esther, Frank C. Bozeman, Pensacola, Peter W. Zinober, John P. McAdams and Jeffrey A. Cramer, of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Tampa, for appellee.

Mary Ann Stiles, Tampa, for amicus curiae Associated Industries of Florida, Inc.

ON REHEARING EN BANC

PER CURIAM.

A majority of the court has determined to grant rehearing en banc pursuant to Fla.R.App.P. 9.331(c) and to substitute this opinion on rehearing for the panel's opinion previously issued, 427 So.2d 1065 (Fla. 1st DCA 1983).

Vicki Brown and her husband appeal from the trial court's order granting Winn-Dixie's motion for summary judgment. The trial court ruled that the Browns' tort claims ¹ against Winn-Dixie are barred by the exclusivity provisions of the Florida Workers' Compensation Act, Section 440 11(1), Florida Statutes (1979). ² The court did not grant summary judgment in favor of Winn-Dixie supervisor Jack Blaich, the other defendant. We agree with the trial court that such claims are barred as against the employer, Winn-Dixie.

This action instituted by the Browns arose out of an incident which occurred on November 18, 1980, when Mrs. Brown was on duty as an employee at a Winn-Dixie grocery store in Mary Esther, Florida. According to Mrs. Brown, a male supervisor, Jack Blaich, "reached over and grabbed her breast" during a discussion of store business. There is evidence that Winn-Dixie had been made aware of previous similar acts by Blaich against other female employees. No relationship existed between Blaich and Mrs. Brown outside the work setting. As a result of the incident, Mrs. Brown claims to have suffered mental anguish and instituted suit against Winn-Dixie and Blaich alleging the torts of battery and intentional infliction of mental distress.

Initially, we reject appellants' contention that Winn-Dixie is not immunized because of an exception recognized where the injury is caused by an intentional act of the employer. Appellants are not entitled to the benefit of that exception since the actor in the case at bar was only a supervisor. Although the appellants claim that Winn-Dixie was aware of a propensity of Blaich to commit such acts, such awareness does not bring this case within the above exception. We note with approval Professor Larson's observation:

When the person who intentionally injures the employee is not the employer in person nor a person who is realistically the alter ego of the corporation, but merely a foreman, supervisor or manager, both the legal and moral reasons for permitting a common-law suit against the employer collapse, and a substantial majority of modern cases bar a damage suit against the employer.

2A Larson's Workmen's Compensation law, Section 68.21 (1982). Moreover, although the complaint contains an allegation to the effect that Winn-Dixie expressly or impliedly authorized Blaich to commit the subject act, it is clear from the record that such was not the case and that there is no genuine issue with respect thereto, or with respect to any intentional conduct of the employer. And if we were to construe appellant's complaint, which as we have noted appears to be based upon intentional tort causes of action, as alleging against Winn-Dixie a cause of action in negligence, that is, negligent retention of a dangerous employee, see 2 Fla.Jur.2d Agency and Employment § 211, the appellants would fare no better regardless of the degree of such negligence. The workers' compensation immunity provision applies regardless of the degree of an employer's negligence.

An employer under this Act is not liable in tort to employees by virtue of the express language of the Act. Such immunity is the heart and soul of this legislation which has, over the years been of highly significant social and economic benefit to the working man, the employer and the State. And, whether the injury to the employee is caused by "gross negligence," "wanton negligence," "simple negligence" passive or active, or no negligence at all of the employer, is of no consequence. There is no semblance of suggestion in these statutes that the Legislature intended to make any distinction in degrees of negligence so far as the employer's immunity is concerned and we see no reason or logic in any distinction.

Seaboard Coast Line Railroad Company v. Smith, 359 So.2d 427, 429 (Fla.1978). See also Coney v. International Minerals & Chemical Corporation, 425 So.2d 171 (Fla. 2nd DCA 1983).

Appellants next contend that since Blaich's actions constitute intentional torts, the incident which caused the damages complained of by Mrs. Brown cannot be regarded as an accident and, therefore, the workers compensation law is not applicable. Such contention is without merit. In a number of prior decisions, assaults and intentional torts have been held to be compensable as accidents arising out of and in the course of employment. See Hill v. Gregg, Gibson & Gregg, Inc., 260 So.2d 193 (Fla.1972) (superintendent severely assaulted claimant after firing him); Tampa Maid Seafood Products v. Porter, 415 So.2d 883 (Fla. 1st DCA 1982) (claimant stabbed by fellow employee); Prahl Bros., Inc. v. Phillips, 429 So.2d 386, 387 (Fla. 1st DCA 1983) (claimant robbed by intruder).

Of course, if the origin of the assault is not the employment, then the assault cannot be regarded as arising out of the employment.

[W]hen it is clear that the origin of the assault was purely private and personal, and that the employment contributed nothing to the episode, whether by engendering or exacerbating the quarrel or facilitating the assault, the assault should be held non-compensable....

San Marco Co., Inc. v. Langford, 391 So.2d 326, 327 (Fla. 1st DCA 1980) (claimant shot at work by co-employee after they had quarreled the previous night); see also Lainhart & Potter v. Holland, IRC Order 2-3005 (1975) (origin of assault not the employment where, in love triangle, claimant was shot at work by former co-employee); Ivy H. Smith Company v. Wingo, 404 So.2d 1118 (Fla. 1st DCA 1981). The facts in those cases are patently distinguishable from those in the case at bar. There can be little doubt that the attack on Mrs. Brown arose out of her employment.

Appellants also argue that because of the nature of the act by Blaich and the type of injuries claimed by Mrs. Brown, there can be no workers compensation coverage and exclusivity does not therefore apply. Appellants point to Section 440.02(18), Florida Statutes (1979):

"Accident" means only an unexpected or unusual event or result, happening suddenly. A mental or nervous injury due to fright or excitement only ... shall be deemed not to be an injury by accident arising out of the employment. (Emphasis supplied.)

Mrs. Brown claims damages for emotional distress which she says that she suffered as a direct result of her supervisor's grabbing her breast. Although Mrs. Brown's claim was indeed for damages for "mental or nervous injury," it was not "due to fright or excitement only." (Emphasis supplied.) To the contrary, her injuries resulted from a battery by her supervisor.

Florida courts have recognized that mental distress or psychiatric disorders which are caused by a blow or some other type of physical contact are covered injuries under Chapter 440 even where the physical contact is relatively minor. In Watson v. Melman, Inc., 106 So.2d 433 (Fla. 3rd DCA 1958), cert. den. 111 So.2d 40 (Fla.1959), the employee was working at a sewing machine when one of her co-workers tossed a light cardboard spool (weighing 8 1/2 ounces) towards a nearby trash receptacle. Instead, the spool struck the claimant behind the ear. "[O]ther than a slight discoloration of the skin, no sign was left upon the area where the blow struck." 106 So.2d at 434. Although sustaining no other injury or disability, the employee claimed compensation benefits for a neurosis which developed directly from the trauma of the accident. It seems that her teenage son had previously died from a blow to the head, and the accident accordingly took on "symbolic significance." The court reversed the Industrial Commission's determination that the claim should be dismissed because "fright alone does not constitute an injury by accident." 106 So.2d at 434. The court reinstated the deputy commissioner's compensation award. See also Lyng v. Rao, 72 So.2d 53 (Fla.1954); Prahl Bros., Inc. v. Phillips, supra (disabling psychiatric impairment resulting from armed robbery involving handgun being placed to claimant's head and ring being removed from her finger); compare Williams v. Hillsborough County School Board, 389 So.2d 1218 (Fla. 1st DCA 1980); Indian River County Sheriff's Department v. Roske, 417 So.2d 1161 (Fla. 1st DCA 1982).

We conclude that Blaich's act of impermissibly and offensively grabbing Mrs. Brown's breast was the kind of physical injury or trauma sufficient to support a workers compensation claim for mental distress or injury directly resulting therefrom. ³ The fact that Mrs. Brown's mental distress or injury might not be of sufficient severity or quality so as to actually qualify for benefits under the worker's compensation law is of no moment. As this court stated in Grice v. Suwannee Lumber Mfg. Co., 113 So.2d 742, 746 (Fla. 1st DCA 1959):

Every accidental injury suffered by an employee which arises out of and in the course of his employment is within the scope of the Act if it is of such character that it results, or might have resulted, in a loss or diminution of earning capacity, either temporary or permanent, or for which the employer is obligated to furnish medical or other benefits. The fact that in a particular case the injury...