Cunningham v. Anchor Hocking Corp.
| Decision Date | 01 March 1990 |
| Docket Number | No. 88-1512,88-1512 |
| Citation | 558 So.2d 93 |
| Parties | 15 Fla. L. Weekly D570 Elizabeth CUNNINGHAM, Fred N. Harris, James Paul, III, George A. McCoy, Wilma S. Smith, Clifford Brown, Judith Brown, Charles O'Neal, Herman Harris, Hobart G. Creamer, S. Ross Williams, Sr., Nathan P. McLaughlin, Henry Caudill, Jesse D. O'Neal, James E. Lewis, Mary Jane Creamer, Denise Barbara Williams, Joseph N. Hogue, Dinah M. Taylor, Mary Master, and Teresa Cooner, Appellants, v. ANCHOR HOCKING CORPORATION, formerly known as Anchor Hocking Glass Corporation, Anchor Hocking Glass Container Corporation, formerly known as Anchor Hocking Corporation, and Anchor Glass Container Corporation, formerly known as Anchor Hocking Glass Corporation, Appellees. |
| Court | Florida District Court of Appeals |
Tyrie A. Boyer of Boyer, Tanzler & Boyer, Jacksonville, for appellants.
Alan C. Sundberg, A. Broaddus Livingston, and Sylvia H. Walbolt of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Tampa, for appellee Anchor Hocking Corp.
Harold H. Catlin of Howell, Liles & Milton, Jacksonville, for appellee Anchor Glass Container Corp.
This cause is before us on appeal from the trial court's dismissal with prejudice of appellants' complaint and from the court's rulings adverse to appellants on several discovery matters. We reverse in part, affirm in part, and remand.
Appellants, workers in appellees' glass manufacturing plant in Jacksonville, filed a joint complaint alleging that as a result of the intentional conduct of appellees, they were exposed to toxic substances resulting in respiratory problems, liver damage, brain tumors, pulmonary disease, cancer, and other disorders.
The issues are: (1) whether the allegations of battery and fraud and deceit are sufficient to overcome the exclusivity provision of the Workers' Compensation Act (Section 440.11, Florida Statutes); (2) whether the trial court erred in dismissing claims based on public nuisance (Section 376.205, Florida Statutes); (3) whether the trial court erred in dismissing claims based on common law and statutory strict liability (Section 376.313, Florida Statutes); (4) whether the trial judge erred in prohibiting appellants' attorneys from showing certain photographs of appellees' premises to witnesses during depositions; and (5) whether the trial judge erred in ordering appellant Cunningham to divulge the names of all persons with knowledge of the alleged special clean-up and/or the destruction of evidence in response to appellants' lawsuit.
In Fisher v. Shenandoah General Construction Company, 498 So.2d 882 (Fla.1986), and Lawton v. Alpine Engineering Products, Inc., 498 So.2d 879 (Fla.1986), the Florida Supreme Court held that an employee can bring a cause of action in tort if the employer's actions exhibit a deliberate intent to injure or if the employer engages in conduct which is substantially certain to result in injury or death. 1 The second amended complaint in the instant case alleged in part as follows:
5. As a direct and proximate result of the intentional conduct of the defendants, or one of them, hereinafter alleged, the plaintiffs suffered bodily injury and resulting pain and suffering, disability, disfigurement, mental anguish, loss of capacity for the enjoyment of life, expense of hospitalization, medical and nursing care and treatment, loss of earnings, loss of ability to earn money, and aggravation of previously existing conditions.
....
10. The defendants' failure to warn or advise the plaintiffs and other employees of the presence of the toxic substances at the defendants' plant and as to the health hazards and dangers posed thereby, as hereinafter alleged, was conscious and intentional ... was accomplished and performed by the defendants ... with a deliberate intent to injure the plaintiffs; alternatively, the conduct ... was substantially certain to result in injury to or the death of the plaintiffs.
....
12. During the period of the plaintiffs' employment by the defendants at said plant or facility for the manufacture of glass, glass products, and other products, the defendants intentionally battered the plaintiffs by deliberately and knowingly exposing the plaintiffs to toxic substances ....
(a) The defendants knew that toxic substances were present in virtually every area of said plant.
(b) ... [T]he toxicity or hazardous nature of the toxic substances was deliberately concealed from the plaintiffs in that the defendants intentionally removed or destroyed or caused to be removed or destroyed warning labels on the packages in which one or more of the toxic substances were packaged before such toxic substances were placed into the stream of production at the plant and before the daily workers such as the plaintiffs could see or read the labels, which warned of the health dangers posed by the toxic substances and which prescribed safety measures.
(c) The defendants deliberately diverted a smokestack designed to vent dangerous fumes comprised by or resulting from the toxic substances into the outdoor atmosphere such that the dangerous fumes and toxic substances, some of which were vaporous, gaseous or difficult to detect, emptied back into the plant or building and came into contact with the plaintiffs' skin, eyes and respiratory systems.
....
(e) In addition, the defendants knew that cleaning solvents, oil laced with sulphur and graphite, acidic vapors, and other toxic substances were airborne in the plant and that manufacturers of the ingredients for defendants' glass products recommended safety equipment (such as gloves, masks or respirators) so as to avoid contact of the toxic substances with human beings. Despite such knowledge, the defendants intentionally did not advise the plaintiffs of the dangers; did not make safety equipment available to the plaintiffs, or provided inadequate safety equipment, such as cotton gloves which absorbed rather than repelled the chemicals; knowingly and intentionally failed to heed the levels of the toxic substances airborne in the plant; knowingly and intentionally failed to repair the smokestack in a proper manner or to replace it with a proper environmental system, thereby intentionally subjecting its employees to hazardous levels of dangerous substances; and knowingly and intentionally failed to advise the plaintiffs of the substantial health risks posed by the toxic substances or of the manufacturers' warning labels which had been removed by the defendants.
(f) [D]efendants knowingly exposed the plaintiffs to an intense density of the toxic substances with specific intent to injure the plaintiffs for the sake of making a greater profit.... Despite such knowledge, not only did the defendants fail to provide adequate ventilation, but also ... on occasion simply turned off the existing inadequate exhaust system, thereby further deliberately intensifying the offensive contact between said toxic substances and the plaintiffs.
13. The said acts and conduct of the defendants were done and accomplished maliciously, with an utter indifference to the plaintiffs' rights and safety, and wantonly....
A third amended second count further alleged:
17.-A. During the period of the Plaintiffs' employment by the Defendants, the Defendants made the following material and false representations and misrepresentations to Plaintiffs:
(a) The Defendants falsely represented to the Plaintiffs that the materials utilized in the manufacture of the Defendants' glass products did not require that workers adjacent to the Defendants' machinery which piped and molded such products wear masks or gloves.... Defendants had, as a part of a fraudulent and malicious scheme to save money at the expense of the Plaintiffs' health, destroyed or discarded warning labels which indicated that special clothing or safety equipment should be worn. The Defendants instead represented that only the person who mixed the products together in "the hot area" need have a mask.... The Defendants further represented falsely that some employees who were to handle some of the chemicals would be adequately protected by cotton gloves, knowing that such gloves were insufficient protection and were contrary to the manufacturers' warnings that contact with skin should be avoided, inasmuch as such cotton gloves did not prevent contact between the toxic substances and the skin.
(b) The Defendants falsely represented to the Plaintiffs and other employees that the Defendants had an adequate system for exhaust or ventilation of toxic fumes which was in effect during working hours. However, in actuality the Defendants deliberately turned their system off, and in actuality the "system" was a scheme by which toxic fumes were distributed throughout the building rather than appropriately disbursed. The Defendants purposely misrepresented the adequacy of the exhaust system because the Defendants wished to avoid the cost and expense of providing an exhaust system into the atmosphere, which would have required environmental safety devices.
....
18.... Defendants made deliberate and knowing misrepresentations to Plaintiffs designed to cause and actually causing detrimental reliance by Plaintiffs.... [emphasis added]
Based on the above allegations, appellants properly alleged a cause of action in intentional tort outside the scope of the Workers' Compensation Act. Taking the allegations in the light most favorable to appellants as the nonmoving parties, we hold the complaint alleges an intent to injure appellants and a substantial or virtual certainty that the appellees' action would result in injury or death to appellants. Thus, the complaint alleges that appellees diverted the smokestack so that fumes would flow into, rather than outside of, the plant, and that they periodically turned off the plant ventilation system, thereby intensifying the level of exposure. The complaint further alleges...
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