Shova v. Eller

• Decision Date: 04 September 1992
• Docket Number: No. 91-02087,91-02087
• Parties: 7 Indiv.Empl.Rts.Cas. (BNA) 1271, 17 Fla. L. Week. D2095 Randy SHOVA, Individually, and as Personal Representative of the Estate of Felicia Shova, Appellant, v. Karl ELLER, Robert Dearth and Richard Yarnell, Appellees.
• Court: Florida District Court of Appeals

Page 400

606 So.2d 400

7 Indiv.Empl.Rts.Cas. (BNA) 1271, 17 Fla. L. Week. D2095

Randy SHOVA, Individually, and as Personal Representative of the Estate of Felicia Shova, Appellant, v. Karl ELLER, Robert Dearth and Richard Yarnell, Appellees.

No. 91-02087.

District Court of Appeal of Florida,

Second

District.

Sept. 4, 1992.

Rehearing Denied Oct. 20, 1992.

James A. Sheehan, St. Petersburg, for appellant.

A. Wade James, Hampp, Schneikart & James, P.A., St. Petersburg, for appellees.

RYDER, Acting Chief Judge.

We have for review an issue concerning the trial court's dismissal of Randy Shova's second amended complaint in this action for gross negligence. We reverse.

The complaint was filed against fellow employees of the deceased, Felicia Shova, for simple negligence and for gross negligence which was alleged to have caused Felicia's death. Randy Shova was Felicia's husband and is the personal representative of her estate.

Mr. Shova's complaint alleged that appellee, Karl Eller was the chairman of the board of Circle K Corporation where Felicia worked and was responsible for formulating the policies of Circle K at the time of the incident which caused Felicia's death. Appellee, Robert Dearth, was the president of Circle K and was responsible for implementing the policies of Circle K at the time of the incident that caused Felicia's death. Appellee, Richard Yarnell, was the regional manager of Circle K and was responsible for implementation of policies, supervision, staffing and security at Circle K stores in west central Florida and in particular, the store where Felicia worked at the time of her death, which was located at the corner of Armenia and Waters Avenues in Tampa (the store).

Mr. Shova's complaint alleged that Felicia was employed continuously as an assistant manager and store manager by Circle K from July 1987 until January 26, 1990 at the store. The store is only one of a number of Circle K stores located in the Tampa Bay area. The complaint alleged that the geographic area in which the store is located has, for the past five years, experienced a significantly high crime rate in Hillsborough County which has increased each year. Most of the incidents of crime in the area where the store is located have occurred at the store. The store had been opened for two years at the time of the incident that caused Felicia's death. During that time, six to eight robberies had occurred at the store, five of them being armed robberies. Felicia had been a victim of one of these armed robberies in December of 1988. Theft was routine.

For most of the period that the store had been in operation prior to January 26, 1990, it had operated twenty-four hours a day. Felicia was a supervisor at the store. Immediately prior to January 26, 1990, Felicia had a problem with low sales and decreasing inventory on the 11:00 p.m. to 7:00 a.m. shift. In order to determine what was causing the problems on the late shift, Felicia had to work the shift herself. It was the policy of Circle K at that time that only one person worked the late shift.

Mr. Shova's complaint further alleged that on January 26, 1990, the store was not equipped, by Circle K, with adequate security equipment such as additional personnel, bulletproof enclosures and automatic door locks even though Circle K and appellees were well aware of the existence of these devices and of the effectiveness of these devices in preventing crime and protecting the employee. On the night of January 26, 1990, Felicia was working the 11:00 p.m. to 7:00 a.m. shift at the store alone. At approximately 11:30 p.m., the store was robbed by an individual later identified as Anthony Hill. In the course of the robbery and without provocation, Hill shot and killed Felicia.

The original complaint was a two-count complaint alleging gross negligence on the part of appellees as fellow employees, and alleging simple negligence against appellees as employees working in unrelated employment. The basis of both counts was that appellees knew that the store was located in a high crime area; that previous incidents of armed robbery involving guns and knives occurred at the store; that the majority of armed robberies and injuries due to armed robberies occur between the hours of 11:00 p.m. and 7:00 a.m.; and that the store in this location, operating twenty-four hours a day, with little or no effective security devices, presented an unreasonably dangerous situation for employees working the overnight shift.

The original complaint was dismissed on November 20, 1990 and an amended complaint was filed on December 13, 1990. The amended complaint was essentially the same as the original complaint except additional allegations were made in paragraph 26 to the effect that appellees were aware of the dangers of keeping the store open without adequate safeguards between the hours of 11:00 p.m. and 7:00 a.m., and knowing the dangers, they made a conscious decision to keep the store open with the knowledge that this decision was going to result, at some time, in great bodily injury to their employees.

This amended complaint was also dismissed on February 27, 1991, and a second amended complaint was filed on March 20, 1991. The second amended complaint was a one-count complaint essentially the same as the previous two complaints except Mr. Shova added the allegation that appellees' knowledge of the likelihood of serious bodily harm increased to a certainty because the store was located in a high crime area and previous armed robberies had occurred in that store. The second amended complaint also alleged that the failure to provide adequate safety devices and a conscious decision to keep the store open under all the facts and circumstances amounted to an infliction, by appellees, of actual personal injury on Felicia. The negligence claim asserting appellees were coemployees engaged in unrelated works did not appear in appellant's final complaint. The second amended complaint was also dismissed by order dated June 13, 1991. The trial court found the Florida workers' compensation system provided the exclusive remedy for appellant's injury. The court held section 440.11(1), Florida Statutes (1989), was constitutional. The final order dismissed the case with prejudice. This timely appeal followed.

[W]here a right of access to the courts for redress for a particular injury has been provided by statutory law predating the adoption of the Declaration of Rights of the Constitution of the State of Florida, or where such right has become a part of the common law of the State pursuant to Fla.Stat. Sec. 2.01, F.S.A., the Legislature is without power to abolish such a right without providing a reasonable alternative to protect the rights of the people of the State to redress for injuries, unless the Legislature can show an overpowering public necessity for the abolishment of such right, and no alternative method of meeting such public necessity can be shown.

Kluger v. White, 281 So.2d 1, 4 (Fla.1973). The Kluger court noted that in McMillan v. Nelson, 149 Fla. 334, 5 So.2d 867 (1942), the court approved the automobile guest statute which raised the degree of negligence necessary to maintain a tort action from negligence to gross negligence.

The supreme court approved a similar change when, in 1978, the legislature amended section 440.11(1), Florida Statutes (1977). See Iglesia v. Floran, 394 So.2d 994 (Fla.1981). This amendment grants immunity from tort liability to coemployees who, while in the course of their employment, negligently injure other employees of the same employer, unless the employees act with willful and wanton disregard or unprovoked physical aggression or with gross negligence. Iglesia. Relying on what the court in Kluger stated about McMillan, the supreme court in Iglesia approved the 1978 amendment to section 440.11(1) which raised the degree of negligence to gross negligence in cases where an employee sues a fellow employee for injuries received within the scope of employment. Iglesia held that the legislative amendment which changed the degree of negligence does not violate the access to courts provision of the Florida Constitution.

In 1987, the Florida Supreme Court held that the term "employee" includes corporate officers and directors, thereby permitting a suit in gross negligence to be brought against officers and directors. Streeter v. Sullivan, 509 So.2d 268 (Fla.1987). The result of the Streeter decision was that an officer or director could be sued by a fellow employee just as any other coemployee could be sued for willful and wanton disregard or unprovoked physical aggression or for gross negligence under section 440.11(1).

In 1988, the legislature again amended section 440.11(1). This second amendment grants immunity from tort liability 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 policymaking capacity and the conduct which caused the alleged injury arose within the course and scope of said managerial or policymaking duties and was not a violation of a law, whether or not a violation was charged, for which the maximum penalty which may be imposed exceeds 60 days imprisonment as set forth in s. 775.082.

Sec. 440.11(1), Fla.Stat. (Supp.1988). This amendment raises the degree of negligence necessary to maintain a civil tort action against a coemployee in a supervisory/managerial position from gross negligence to culpable negligence constituting a misdemeanor of the first degree. See Sec. 775.082(4)(a), (b), Fla.Stat. (1989). Section 784.05(2) provides that a person commits a first degree misdemeanor when that person, "through culpable negligence, inflicts actual personal injury on another."

Appellant argues that when the legislature amended section 440.11(1) in 1988, it essentially abolished a cause of action without providing a reasonable alternative in violation...