Elec. Boat Corp. v. Fallen

Decision Date17 June 2022
Docket NumberCase No. 5D21-1519
Citation343 So.3d 1218
Parties ELECTRIC BOAT CORPORATION, Appellant, v. Sylvia FALLEN, Appellee.
CourtFlorida District Court of Appeals

Jay A. Yagoda, of Greenberg Traurig, P.A., Miami, and Gregory W. Kehoe and Danielle S. Kemp, of Greenberg Traurig, P.A., Tampa, for Appellant.

Brian J. Lee, of Morgan & Morgan, Jacksonville, for Appellee.

EISNAUGLE, J.

Electric Boat Corporation appeals an order granting Sylvia Fallen's motion for summary judgment, and denying Electric Boat's dueling motion, on Electric Boat's affirmative defense of horizontal workers’ compensation immunity pursuant to section 440.10, Florida Statutes (2014). We have jurisdiction1 and reverse because the undisputed facts at summary judgment establish that Electric Boat was not grossly negligent as a matter of law and is therefore immune from liability under the exclusive remedy provision of Florida's workers’ compensation statute.2 See § 440.10(1)(e)(2), Fla. Stat. (2014). We do not reach the other issues raised on appeal.

Facts at Summary Judgment

The material facts are not in dispute. In 2015, the United States Navy contracted for work on a large project in Cape Canaveral, Florida. Fallen's employer, Ivey's Construction, was a subcontractor on the project and was responsible for most of the construction work. Fallen was Ivey's supervisor on the project and had a mobile office trailer on site.

Electric Boat also performed work at the project site. While working the night shift on the evening before Fallen's injury, Electric Boat employees determined that the stairs on the south side of Fallen's mobile office were in their way. They checked the area and confirmed that no one was present at the site, and they knocked on the locked doors of the trailer to ensure no one was inside. However, they did not place barrier tape on the exterior of the south door, nor did they notify anyone at Ivey's that they were moving the stairs. Instead, they intended to move the stairs back before leaving, but they forgot to do so.

The next morning, Fallen arrived and noticed congestion at the worksite. She drove past the south door to her mobile office, parked, and entered the north office door. Fallen then walked to the southside window but could not see because it was still dark outside. Intent on resolving the congestion issue, she put on her hard hat, stepped out of the southside door, and fell three-and-a-half feet to the ground. She sustained injuries and receives workers’ compensation coverage for her injuries and lost wages.

Fallen filed suit below for gross negligence3 and moved for summary judgment, arguing that the undisputed facts established Electric Boat was grossly negligent as a matter of law. Electric Boat not only opposed Fallen's motion but filed for summary judgment itself, arguing that the undisputed facts in the summary judgment record established it was immune from suit because it was not grossly negligent. The trial court agreed with Fallen, concluding that Electric Boat was grossly negligent as a matter of law, and entered partial summary judgment against Electric Boat on its affirmative defense of horizontal immunity. The trial court denied Electric Boat's motion as a matter of law in the same order.

Electric Boat concedes that its employees should have returned the stairs. The summary judgment evidence also suggests that Electric Boat did not provide adequate oversight of its employees at the worksite and did not have procedures in place "for management, oversight and execution of work" at the site. However, it is also undisputed that an accident like this had not happened before Fallen's injury or since.

Analysis

On appeal, Electric Boat argues that the trial court erred when it entered partial summary judgment in favor of Fallen on the issue of horizontal immunity, and when the trial court denied Electric Boat's own motion for summary judgment. We agree.

We review an order granting summary judgment de novo. Thompson o/b/o R.O.B. v. Johnson , 308 So. 3d 250, 252 (Fla. 5th DCA 2020) ; Ramsey v. Dewitt Excavating, Inc. , 248 So. 3d 1270, 1272 (Fla. 5th DCA 2018). A trial court "shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fla. R. Civ. P. 1.510(a).

In this case, the parties agree that Electric Boat is immune from liability for simple negligence. See §§ 440.10–.11, Fla. Stat. (2014). Nevertheless, a subcontractor is not immune from liability where the "major contributing cause" of the accident was the subcontractor's own gross negligence. See § 440.10(1)(e)(2), Fla. Stat. (2014).

This court has explained the difference between simple and gross negligence as follows:

[S]imple negligence is that course of conduct which a reasonable and prudent man would know might possibly result in injury to persons or property whereas gross negligence is that course of conduct which a reasonable and prudent man would know would probably and most likely result in injury to persons or property. To put it another way, if the course of conduct is such that the likelihood of injury to other persons or property is known by the actor to be imminent or "clear and present" that negligence is gross, whereas other negligence would be simple negligence. Carraway v. Revell , 116 So. 2d 16 (Fla. 1959) ; Bridges v. Speer , 79 So. 2d 679, 682 (Fla. 1955). [G]ross negligence consists of a conscious and voluntary act or omission which is likely to result in grave injury when in the face of a clear and present danger of which the alleged tortfeasor is aware .... Accordingly, to establish a case submissible to a trier of fact there must be a prima facie showing of a composite of circumstances, which, together, constitute a clear and present danger; there must be a prima facie showing of an awareness of such danger; and there must be a prima facie showing of a conscious, voluntary act or omission in the face thereof which is likely to result in injury. Glaab v. Caudill , 236 So. 2d 180 (Fla. 2d DCA 1970).

Weller v. Reitz , 419 So. 2d 739, 741 (Fla. 5th DCA 1982) (alteration in original).

In other words, there are three elements to prove gross negligence: "(1) circumstances constituting an imminent or clear and present danger amounting to a more than normal or usual peril, (2) knowledge or awareness of the imminent danger on the part of the tortfeasor, and (3) an act or omission that evinces a conscious disregard of the consequences." Moradiellos v. Gerelco Traffic Controls, Inc. , 176 So. 3d 329, 335 (Fla. 3d DCA 2015) (citation omitted); see also Ramsey , 248 So. 3d at 1273. We recognize that the difference between simple negligence and gross negligence is "theoretically clear" but is sometimes "difficult-to-apply." Moradiellos , 176 So. 3d at 334.

These facts do not establish a prima facie case of gross negligence. Fallen argues that the act of moving the staircase itself "created an obvious clear and present danger of serious harm." However, this misses the point. The undisputed evidence here is that Electric Boat intended to replace the stairs before leaving the worksite.4 See Fleming v. Peoples First Fin. Sav. & Loan Ass'n , 667 So. 2d 273, 274 (Fla. 1st DCA 1995) ("Because Fleming presented no evidence demonstrating the existence of an issue or issues of fact, including fact-issues relating to intent, the trial court correctly entered summary judgment against him." (citation omitted)).5 Had they not forgotten to do so, no one would have been injured.

Therefore, when considering all the undisputed facts, we conclude that Electric Boat did not "evince the conscious disregard" required to establish gross negligence when it forgot to return the stairs. While Electric Boat might have been negligent, it was not grossly negligent.

As such, we reverse the order granting partial summary judgment in favor of Fallen and remand with instructions for the trial court to grant Electric Boat's motion for summary judgment on its affirmative defense of horizontal immunity.

REVERSED and REMANDED.

EDWARDS, J., concurs.

COHEN, J., concurs in part and dissents in part, with opinion.

COHEN, J., concurring in part and dissenting in part.

The line between simple and gross negligence is a matter of degree and fact-specific, and when the distinction between the two is unclear, the question should be submitted to the jury. See Courtney v. Fla. Transformer, Inc., 549 So. 2d 1061, 1065 (Fla. 1st DCA 1989) ("[W]here the line separating simple and gross negligence is doubtful or indistinct, ‘the question of whether the negligence is ordinary or gross is one which should be submitted to the jury.’ " (quoting Foy v. Fleming, 168 So. 2d 177, 178 (Fla. 1st DCA 1964) ). While I agree with the majority that the trial court erred in granting Fallen's motion for summary judgment on the issue of gross negligence, I cannot agree that Electric Boat is entitled to summary judgment on remand based on the record before us.

The majority opinion correctly sets out what a plaintiff must establish to make an initial showing of gross negligence. See Moradiellos v. Gerelco Traffic Controls, Inc., 176 So. 3d 329, 335 (Fla. 3d DCA 2015). My disagreement concerns whether Fallen demonstrated a disputed fact regarding Electric Boat's conscious disregard of the consequences sufficient to withstand summary judgment against her.

It is axiomatic that on summary judgment the court must accept the facts in the light most favorable to the nonmoving party, something the majority has failed to do. See Grazette v. Magical Cruise Co., 280 So. 3d 1120, 1123 (Fla. 5th DCA 2019). Here, to perform work at the job site, Electric Boat employees moved a set of ...

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