Merryman v. Mattheus

• Decision Date: 27 May 1988
• Docket Number: No. 87-2054,87-2054
• Citation: 13 Fla. L. Weekly 1291,529 So.2d 727
• Parties: 13 Fla. L. Weekly 1291 Holly Lynn MERRYMAN, as Personal Representative of the Estate of Larry Ray Merryman, deceased, Appellant, v. Michael MATTHEUS, Robert E. Wyrick, Jr., Cleveland A. McInnis and Clifford Dean Spotts, Appellees.
• Court: Florida District Court of Appeals

Page 727

529 So.2d 727

13 Fla. L. Weekly 1291

Holly Lynn MERRYMAN, as Personal Representative of the Estate of Larry Ray Merryman, deceased, Appellant, v. Michael MATTHEUS, Robert E. Wyrick, Jr., Cleveland A. McInnis and Clifford Dean Spotts, Appellees.

No. 87-2054.

District Court of Appeal of Florida Second District.

May 27, 1988.

Rehearing Denied June 22, 1988.

Albert M. Salem, Jr. of Albert Salem and Associates, P.A., Tampa, for appellant.

Ted R. Manry, III of Macfarlane, Ferguson, Allison & Kelly, Tampa, and Thomas J. Roehn, Tampa, for appellees.

LEHAN, Judge.

Plaintiff appeals from a partial summary judgment entered in favor of defendants in this wrongful death case. The trial court concluded as a matter of law that there had been no gross negligence by defendants so as to invoke the exception to the exclusivity of workers' compensation remedies under section 440.11, Florida Statutes (1985). We affirm.

The decedent, of whose estate plaintiff is personal representative, was killed when a load of steel dropped upon him from a malfunctioning crane in his employer's warehouse. The defendants who are appellees in this appeal and who have been sued as co-employees, see Streeter v. Sullivan, 509 So.2d 268 (Fla.1987), are Robert E. Wyrick, Jr., vice-president in charge of warehouse operations at Tampa Bay Steel (TBS); Cleveland A. McInnis, president of TBS; and Clifford Dean Spotts, warehouse manager of TBS.

The load dropped when a cable on the crane which was carrying the load broke. The cable broke when the crane was caused by the crane operator to be lifted higher than necessary and the limit switch, designed to limit the height of the crane, malfunctioned, thus permitting the crane's block to come into contact with the cable drum.

Appellees Wyrick and Spotts had been advised by Michael Mattheus, an electrical contractor who is a defendant in counts of the complaint not the subject of the partial summary judgment now on appeal, that the limit switch was functioning only intermittently and was to be replaced. They knew also that the switch had malfunctioned several days earlier, causing the crane's load to drop. Mattheus, who at that prior time had repaired the crane and advised of the problem with the limit switch, did not recommend that the crane not be used but indicated to appellees, who were not knowledgeable about crane operations, that the crane should be used with caution to be sure that it was not lifted too high. The employees who worked in that area, including decedent and the crane operator, were so advised. Appellees permitted the continued use of the crane as the work bay involved was the busiest at TBS.

Plaintiff vigorously argues that appellees were grossly negligent because the condition of the crane was extremely dangerous and appellees knew of that condition but nonetheless permitted the crane to continue operating. We cannot agree. The record shows that the crane, if operated properly, would have operated safely. If so operated, there was no clear and present danger. There was danger from the circumstances only if the crane operator disregarded the admonition to use the crane with caution and was negligent in lifting the load too high and the intermittently operating limit switch malfunctioned. The danger was, therefore, no more than a possibility, and appellees, by permitting the continued use of the crane, were not shown to have evinced such conscious disregard for the decedent's safety as is requisite for a finding of gross negligence on their parts. Their conscious disregard of the possibility of danger could under these circumstances be no more than simple negligence.

That another crane located in the same area of the warehouse could have been used instead is not determinative. If, as we have concluded, the trial court was correct that there was no gross negligence in continuing the use of the crane which caused the accident, there was no gross negligence in not using another crane.

In Glaab v. Caudill, 236 So.2d 180, 184 (Fla. 2d DCA 1970), this court generally explained these concepts as follows:

[I]t's logical to assume that at some point along the line in a potential gross negligence situation the composite of circumstances or conditions will present a risk of grave injury which a rational person of mature judgment is simply unwilling to assume. On the lower extreme, to illustrate, negotiating a sharp curve at twenty mph, with chargeable awareness that nine hundred ninety-nine out of a thousand cars safely do so, would unquestionably be a minim [sic] of risk; and taking such a risk, we can say, would not be negligence at all. As speed would increase, however, so of course would the risk, until a point is reached where an accident or injury, as a consequence of careless inattention, oversight or error in judgment, is foreseeably more than a mere possibility. Imprudence at this point would be a careless disregard [emphasis in original] of danger; and it can be said then, we...