Reeves v. Fleetwood Homes of Florida, Inc.

• Decision Date: 16 December 2004
• Docket Number: No. SC03-134.,SC03-134.
• Citation: 889 So.2d 812
• Parties: Allison Gae REEVES, etc., Petitioner, v. FLEETWOOD HOMES OF FLORIDA, INC., et al., Respondents.
• Court: Florida Supreme Court

889 So.2d 812

Allison Gae REEVES, etc., Petitioner, v. FLEETWOOD HOMES OF FLORIDA, INC., et al., Respondents.

No. SC03-134.

Supreme Court of Florida.

December 16, 2004.

Kevin A. Ashley and Robin Gibson of Gibson, Valenti and Ashley, Lake Wales, FL and John H. Shannon, Lakeland, FL, for Petitioner.

John W. Frost, II and Peter W. Van Den Boom of Frost, Tamayo, Sessums and Aranda, P.A., Bartow, FL, for Respondent.

Jacqulyn Mack, Englewood, FL, on behalf of the Academy of Florida Trial Lawyers as Amicus Curiae.

LEWIS, J.

We have for review Fleetwood Homes of Florida, Inc. v. Reeves, 833 So.2d 857 (Fla. 2d DCA 2002), in which the Second District Court of Appeal certified the following questions of law to be of great public importance:

1. MAY A DISTRICT COURT REVIEW A NONFINAL ORDER DENYING, "AS A MATTER OF LAW," A MOTION FOR SUMMARY JUDGMENT ON THE ISSUE OF WORKERS' COMPENSATION IMMUNITY IF IT IS CLEAR THAT THE TRIAL COURT INTENDS TO SUBMIT THE ISSUE OF GROSS NEGLIGENCE OR INTENTIONAL TORT TO THE JURY AS A QUESTION OF FACT?

2. IF AN EMPLOYER ALLOWS ITS EMPLOYEES TO PERFORM A NEGLIGENT PROCEDURE REPEATEDLY AND FOR A LONG PERIOD, MAY THE FIRST INCIDENT IN

WHICH THE PROCEDURE RESULTS IN INJURY OR DEATH BE TREATED AS AN INTENTIONAL TORT UNDER TURNER V. PCR, INC., 754 So.2d 683 (Fla.2000)?

We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. Because we answer the first certified question in the negative, and hold that the Second District did not have jurisdiction to review the nonfinal order of the circuit court, we decline to address the second certified question.

FACTS

Allison Reeves, the personal representative of the estate of Dennis Reeves, filed a wrongful death action against Dennis Reeves's employer, Fleetwood Homes of Florida (hereinafter "Fleetwood"), and two of Fleetwood's employees, Marvin Miller and Mickie Oliver. See Fleetwood Homes, 833 So.2d at 859. The Second District ably detailed the relevant facts of the accident that resulted in Dennis Reeves's death:

Dennis Reeves was an employee of Fleetwood, which manufactures homes in a factory. Although he normally had another job assignment, on April 1, 1991, he was assigned to work at a table inside the factory. The table was adjacent to an aisle used by the forklift operators to move supplies into the factory. A structural column that supported the roof of the factory was across the aisle from this table. A pipe ran up the aisle side of this column. Because of the layout of the factory near this column, for a distance of about 25 feet, the aisle was narrower at ground level than the width of some of the supplies that were transported by the forklifts. As a result, the forklift operators had been instructed to raise wide loads to approximately 14 feet in the air.

A common wide load that was transported by the forklifts was sheet metal used as roofing material for the manufactured homes. This sheet metal came in rolls that weighed about 600 pounds and were about 12-feet wide. The forklifts transported three rolls per trip. The roofing material was not strapped onto the forklifts. When the roofing material was raised 14 feet in the air, the forklift operators did not have a clear view of the column and had only a few inches of clearance. They relied upon a painted stripe on the floor to properly position their forklifts to negotiate this narrow location.

When a forklift entered the factory, the operator honked its horn. This was a signal for nearby workers to move out of the way. Affected workers were instructed to heed the warning provided by the horn, but workers did not always respond to the horn. The management at Fleetwood had instructed the forklift operators to continue transporting their loads even if another worker did not move. They were expected to report such a problem to management at a later time. Because Mr. Reeves had never worked at this table prior to the day of the accident, it is unclear whether he had been instructed to heed the horn.

On the day of this accident, Marvin Miller was the forklift operator. He sounded the forklift's horn as he entered this area with rolls of sheet metal. He did not know Mr. Reeves. He observed that Mr. Reeves was not leaving the table. He continued to transport the roofing material. As he was negotiating the narrow location by the column and the pipe, he was watching the painted marking on the floor for proper positioning. For some reason, the roofing material hit the pipe. The load was knocked off balance and a roll of the sheet metal slid off the driver's left side of the forklift, striking Mr. Reeves. He sustained severe injuries and died shortly after this accident.

The management at Fleetwood knew that forklift operators had occasionally bumped this pipe when transporting wide loads. Mr. Miller's foreman, Mickie Oliver, also knew that forklift operators had struck this pipe. There is no evidence, however, that a roll of roofing or any other wide load had ever previously fallen from a forklift or that any worker had ever been injured as a result of this procedure. Mr. Miller was a very experienced forklift operator. He had performed this maneuver on many occasions in the past. There is no evidence that he had any prior history of accidents, that he was driving too fast or recklessly at the time of this accident, or that he was under the influence of any unlawful substance. He simply misjudged the location of the pipe or the position of his load, and the accident happened.

OSHA investigated this accident. It declined to treat the accident as a willful violation of safety regulations. OSHA fined Fleetwood $7000 and ordered certain corrective action. Fleetwood is still allowed to raise wide loads into the air, but it now secures these elevated loads. It requires the forklift operators to clear employees from this area before transporting such loads. Fleetwood is taking greater steps to make certain that all employees are aware of this danger. Although it apparently was not required by OSHA, Fleetwood has moved the table away from the location of this accident.

Id. at 859-61.

Allison Reeves's second amended complaint contained six counts, only three of which are relevant to our review.¹ Count four of the amended complaint alleged gross negligence against the forklift operator, Marvin Miller. Similarly, count five alleged gross negligence against Miller's foreman, Mickie Oliver. Finally, count six alleged that Fleetwood had engaged in "conduct substantially certain to result in Dennis Reeves's injury or death," i.e., the complaint alleged that Fleetwood had committed an intentional tort. The Second District explained the substance of the counts:

The fourth count attempted to allege gross negligence as to the conduct of Mr. Miller. It alleged that (1) he knew, prior to this accident, that other workers had not been getting out of his way when he drove the elevated loads; (2) he knew Mr. Reeves did not respond to his warning and remained in an area of danger at the time of this accident; (3) he knew he had poor visibility and a small margin of error in which to maneuver this elevated load; (4) he knew the load was not secured; and (5) he knew these procedures were dangerous and a violation of safety policies. This count included an allegation that Mr. Miller had engaged in a course of conduct that a reasonably prudent person would know was probably and most likely to result in injury to persons.

The fifth count attempted to allege gross negligence against the foreman, Mr. Oliver. It realleged the risks described in the count against Mr. Miller and explained that Mr. Oliver was an experienced forklift operator who worked essentially as a foreman with the responsibility to supervise Mr. Miller's work and to assure that it was performed safely. The complaint concluded that he too should have known that these circumstances were probably and most likely to result in injury to persons.

The sixth count attempted to allege an unspecified intentional tort against Fleetwood. It realleged the conduct of Mr. Miller and Mr. Oliver. It alleged that management at Fleetwood had knowledge of these circumstances. It alleged that Fleetwood pressured its workers to maintain a high degree of productivity and did not provide adequate safety training or properly respond to the known safety issues created by the forklifts. It concluded that the "course of conduct" of the Fleetwood employees was such that a reasonably prudent person would know that it was "substantially certain to result in injury or death."

Id. at 861.

After the action had been pending for a number of years and the parties had engaged in extensive discovery, Fleetwood and its employees requested the entry of a summary final judgment. See id. The respondents argued that they were entitled to immunity pursuant to the Workers' Compensation Act, section 440.11 of the Florida Statutes (Supp.1990). The trial court conducted a lengthy hearing and ultimately denied the respondents' motion for summary judgment. See id.

With respect to counts four and five of the second amended complaint (the claims of gross negligence against the forklift operator and his foreman), the trial court explained in its written order:

[T]he Court finds that the occurrence of the subject incident was inevitable, given the violations alleged by plaintiff (which are disputed by defendant but, which must be accepted as true on a Motion for Summary Judgment).

The facts of this case and the allegations of the plaintiff, viewed in the light most favorable to the plaintiff, create a factual basis for a composite of circumstances which, together, constituted an imminent or clear and present danger amounting to more than normal and usual peril, show a chargeable knowledge or awareness of the imminent danger, and evince a conscious disregard of consequences. These circumstances taken in combination presented a high risk of serious injury.

Therefore, as to these Counts, as a matter of

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