Kenann & Sons Demolition, Inc. v. Dipaolo, 94-1820

• Decision Date: 26 April 1995
• Docket Number: No. 94-1820,94-1820
• Citation: 653 So.2d 1130
• Parties: 20 Fla. L. Weekly D1009 KENANN & SONS DEMOLITION, INC., d/b/a Ken Hamann Demolition, and Kenneth Hamann, individually, Appellants, v. Michael DIPAOLO, Appellee.
• Court: Florida District Court of Appeals

Page 1130

653 So.2d 1130

20 Fla. L. Weekly D1009

KENANN & SONS DEMOLITION, INC., d/b/a Ken Hamann Demolition and Kenneth Hamann, individually, Appellants, v. Michael DIPAOLO, Appellee.

No. 94-1820.

District Court of Appeal of Florida Fourth District.

April 26, 1995.

Robert I. Buchsbaum of Conroy, Simberg & Lewis, P.A., Hollywood, for appellants.

James C. Blecke and Deutsch & Blumberg, P.A., Miami, for appellee.

PER CURIAM.

This is a timely appeal from an order of the trial court denying appellants' motion for summary judgment which appellants based on workers' compensation immunity. Having jurisdiction pursuant to Breakers Palm Beach, Inc. v. Gloger, 646 So.2d 237 (Fla. 4th DCA 1994), we reverse and remand.

Michael DiPaolo, a day laborer employed by Vittorio Forgiarini, was injured when he was struck by a crane truck. Forgiarini had turned on the truck while standing beside it.

The site was a demolition job. Kenann & Sons Demolition, Inc. (Kenann) contracted with the Broward County School Board to demolish bleachers on an athletic field. Forgiarini, an occasional scrap-dealer, paid Kenann for the privilege of ripping down the bleachers, expecting to profit by reselling the scrap steel.

An employer who properly secures workers' compensation coverage for its employees is immune from suit so long as the employer has not engaged in an intentional act designed to result in injury or death or conduct which is substantially certain to result in injury or death to an employee. Eller v. Shova 630 So.2d 537 (Fla.1993); Fisher v. Shenandoah Gen. Constr. Co., 498 So.2d 882, 883 (Fla.1986); Lawton v. Alpine Engineered Prod., Inc., 498 So.2d 879, 880 (Fla.1986); General Motors Acceptance Corp. v. David, 632 So.2d 123, 125 (Fla. 1st DCA), rev. dismissed, 639 So.2d 976 (Fla.1994).

The same immunities as employers enjoy extend also to fellow employees so long as they do not act with willful and wanton disregard or unprovoked physical aggression or with gross negligence when such acts result in injury or death or proximately cause injury or death. Kennedy v. Moree, 650 So.2d 1102, 1105-07 (Fla. 4th DCA 1995); Sec. 440.11(1), Fla.Stat. Since 1988, section 440.11(1), Florida Statutes, has given the same immunities as those of the employer to any sole proprietor, partner, corporate officer or director, supervisor or other person who in the course and scope of his duties acts in a managerial or policy making capacity, and the conduct causing the alleged injury arose within the course and scope of those duties and was not a violation of law for which the penalty is at least sixty days' imprisonment as set forth in section 775.082, Florida Statutes--in other words, a first degree misdemeanor or higher. Kennedy, 650 So.2d at 1105-07.

The conduct of appellants which plaintiff/appellee described as substantially certain to result in his death or injury, and the conduct of Ken Hamann, head of the company, described as constituting gross negligence, is as follows: failure to provide a safe place of work, by allowing unskilled labor to operate heavy equipment, and hiring an unskilled, unprofessional, unlicensed scrap dealer to do the actual demolition work, with the result that work was being performed in a reckless manner without regard to the safety of the workmen. A specific allegation was that Forgiarini, inexperienced in operating a crane, was allowed to use a borrowed crane which he operated himself, rather than renting a crane with a professional crane operator.

Considering that conduct of appellants alleged by plaintiff/appellee which may have been connected with his injury, as well as every reasonable inference from the allegations favorable to appellee, this court concludes the conduct does not rise to the level of an intentional act designed to result in injury or death or conduct substantially certain to have such a result; nor, in the case of Ken Hamann, a violation of law at the level of first degree misdemeanor or higher.

It has been said that the standard as regards the workers' compensation-furnishing employer requires virtual certainty of injury to an employee, and that the definition of intentional tort must be given a strict interpretation when applying the workers' compensation law. Fisher, 498 So.2d at 884; David, 632 So.2d at 125. The Fisher cou...