IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
ELECTRIC BOAT CORPORATION,
Appellant,
v.
Case No. 5D21-1519
LT Case No. 2016-CA-043968
SYLVIA FALLEN,
Appellee.
________________________________/
Opinion filed June 17, 2022
Nonfinal Appeal from the Circuit Court
for Brevard County
,
Curt Jacobus
, Judge.
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
2
immunity pursuant to section 440.10, Florida Statutes (2014). We have
jurisdiction
1
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
1
Fla. R. App. P. 9.130(a)(3)(C)(v).
2
The summary judgment order in this case was rendered pursuant to
Florida’s revised summary judgment rule. See In re Amends. to Fla. R. Civ.
P. 1.510, 317 So. 3d 72, 81 (Fla. 2021).
3
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 negligence
3
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
3
Fallen initially alleged both simple negligence and gross negligence.
However, she later abandoned her simple negligence claim.
4
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).
5
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).
6
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. &
4
Importantly, we can identify no summary judgment evidence from
which a jury could reasonably draw an inference that would put Electric
Boat’s intent to return the stairs in dispute, and Fallen has identified none.
7
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.
5
See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986)
(rejecting respondents’ argument that “the defendant should seldom if ever
be granted summary judgment where his state of mind is at issue and the
jury might disbelieve him or his witnesses as to this issue”).
8
CASE NO: 5D21-1519
LT Case No: 2016-CA-043968
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.
9
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 stairs from the exit of an office trailer.
They did not place barrier tape on the door to prevent anyone from exiting
the trailer before the stairs were returned. At the conclusion of their assigned
task, the employees failed to replace the stairs, much to the detriment of
Fallen. The majority focuses on the fact that the employees testified that they
intended to replace the stairs but forgot. While that may be true, it is a rare
defendant who admits that he or she consciously intended to cause injury to
the plaintiff. That would fit the definition of an intentional tort, which is not the
issue here. But under the majority’s analysis, all a tortfeasor has to do to
avoid the issue of gross negligence from being submitted to the jury is
declare that he or she did not intend to harm the victim.
Rather than focus on what the employees said long after the incident,
we should look to their actions and the circumstances constituting an
imminent danger, the knowledge or awareness of the imminent danger, and
whether the act or omission evinces a conscious disregard of the
consequences. See Moradiellos, 176 So. 3d at 335. The majority appears to
10
acknowledge that Fallen presented sufficient evidence of the first two
elements, properly focusing on the issue of conscious disregard. That
element, of course, implicates the state of mind of the employees involved.
We should look at what the employees did, not only what they said after
becoming aware that someone was seriously injured by their actions, to
guide our decision in this case.
Taking the facts in the light most favorable to Fallen, Electric Boat’s
employees violated their own policies by removing the stairs without
receiving permission from their safety representative. Knowing the removal
of the stairs would pose a significant risk to anyone within the trailer, the
employees took prophylactic measures to ensure no one was inside. Yet
they did not place barrier tape—not an arduous task—to protect any person
who might enter the trailer and use the exit. One employee acknowledged
the obvious: failure to replace the stairs created a considerable hazard.
Despite being aware of the imminent danger, the employees left the job site
without any effort whatsoever to ensure that the hazard they created had
been remedied. In my view, that is sufficient evidence of conscious disregard
of the consequences to allow for a jury to determine whether Electric Boat
was grossly negligent; simply forgetting to conduct a critical safety measure
11
to protect against an admittedly significant danger does not eviscerate the
possibility of conscious disregard.
The cases relied upon by the majority in support of their decision to
enter summary judgment against Fallen are so factually distinguishable as
to render them of no value. In Anderson v. Liberty Lobby, Inc., 477 U.S. 242
(1986), the issue involved a defamation action pursuant to New York Times
Co. v. Sullivan, 376 U.S. 254 (1964). As such, the evidentiary standard to be
applied by the trial court was clear and convincing evidence as to whether a
genuine issue of actual malice existed, a far higher evidentiary standard than
that of the instant case. Moreover, the United States Supreme Court in
Anderson noted, “When determining if a genuine factual issue as to actual
malice exists in a libel suit brought by a public figure, a trial judge must bear
in mind the actual quantum and quality of proof necessary to support liability
under New York Times.” 477 U.S. at 254. Stated differently, “in ruling on a
motion for summary judgment, the judge must view the evidence presented
through the prism of the substantive evidentiary burden.” Id. It seems illogical
to analogize the instant case to one that concerned a vastly different
evidentiary burden.
The other case relied upon by the majority, Fleming v. Peoples First
Financial Savings & Loan Association, 667 So. 2d 273 (Fla. 1st DCA 1995),
12
is just as factually inapposite. There, summary judgment was granted on
counterclaims for alleged violations of RICO and TILA,
6
as well as claims for
breach of promise and defamation of credit. Id. While the majority quotes
language in Fleming helpful to their disposition, they ignore that the court
also stated, “generally, fact issues relating to intent do not lend themselves
to summary judgment.” Id. at 274. In the instant case, where conscious
disregard of the consequences necessarily involves a question of the
tortfeasor’s state of mind, the grant of summary judgment is improper.
Simply put, the fundamental issue in this case is who should make the
determination of whether Electric Boat’s actions were sufficient to constitute
gross negligence. The majority believes they are better suited to make that
determination. I respectfully submit it should be made by a jury.
6
“Racketeer Influenced Corrupt Organization” and “Truth In Lending
Act.”
