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1. Imminent or clear and present danger amounting to a more than normal or usual peril;
2. Defendant knew of the imminent danger; and
3. An act or omission that evinces a conscious disregard of the consequences.

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1. Imminent or clear and present danger amounting to a more than normal or usual peril;
2. Defendant knew of the imminent danger; and
3. An act or omission that evinces a conscious disregard of the consequences.

Florida’s Workers’ Compensation Act provides immunity to employers and their employees from suits for simple negligence. This immunity does not extend to cases where the injury is caused by an employer’s intentional tort or by a fellow employee’s gross negligence, willful and wanton misconduct or unprovoked physical aggression. § 440.11(b), Fla. Stat. (2023); Fred G. Wright, Inc. v. Edwards, 642 So. 2d 808, 809 (Fla. 2d DCA 1994).

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FLORIDA STATE COURTS

Supreme Court:  Reeves v. Fleetwood Homes of Fla., Inc., 889 So. 2d 812, 816 (Fla. 2004).

First District: Courtney v. Fla. Transformer, Inc., 549 So. 2d 1061, 1064 (Fla. 1st DCA 1989).

Second District: Fred G. Wright, Inc. v. Edwards, 642 So. 2d 808, 809 (Fla. 2d DCA 1994); Glaab v. Caudill, 236 So. 2d 180, 183 (Fla. 2d DCA 1970).

Third District: Vallejos v. Lan Cargo S.A., 116 So. 3d 545, 552 (Fla. 3d DCA 2013); Kline v. Rubio, 652 So. 2d 964, 965 (Fla.3d DCA 1995).

Fourth District: Hoyt v. Corbett, 559 So. 2d 98, 100 (Fla. 4th DCA 1990); Boston v. Publix Super Mkts., Inc., 112 So. 3d 654, 659 (Fla. 4th DCA 2013).

Fifth District: Ramsey v. Dewitt Excavating, Inc., 248 So. 3d 1270, 1273 (Fla. 5th DCA 2018); Weller v. Reitz, 419 So. 2d 739, 741 (Fla. 5th DCA 1982).

FLORIDA FEDERAL COURTS

Southern District: Chubb Seguros Chile S.A. v. Freight Logistics Int’l LLC, 588 F. Supp. 3d 1312, 1317 (S.D. Fla. 2022).

Middle District: Deutsche Bank Nat. Tr. Co. v. Foxx, 971 F. Supp. 2d 1106, 1117 (M.D. Fla. 2013).

Northern District: Greathouse v. Ceco Concrete Const., L.L.C., No. 5:06CV2RSAK, 2007 WL 624550, at *4 (N.D. Fla. Feb. 23, 2007).

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2 Defenses to Claim for Gross Negligence – Employee v. Employer

(1) R. Civ. P. 1.110(d) (pleading affirmative defenses), and other standard defenses. See § 1.

(2) Statute of Limitations: § 95.11(4)(a), Fla. Stat (two years).

(3) Fellow employee’s conduct does not meet the legal standard for gross negligence: “[C]onduct that is so reckless or wanting in care that it constitutes a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct.” Foreman v. Russo, 624 So. 2d 333, 335 (Fla. 4th DCA 1993).

(4) The injury was not caused by Employer’s Intentional tort. Employer must have “deliberately intended to injure the employee,” or engaged in conduct that was “virtually certain to result in injury and deliberately misrepresented the danger to prevent the employee from exercising informed judgment about whether to perform the work.” § 11(b), Fla. Stat.

(5) If an employee already filed for and received benefits through workers’ compensation, “a subsequent negligence suit is barred.” This principle also applies to suits against a fellow employee. Ferraro v. Marr, 467 So. 2d 809, 810 (Fla. 2d DCA 1985).

(6) Immunity against suit does not extend to fellow employees “when each is operating in the furtherance of the employer’s business but they are assigned primarily to unrelated works within private or public employment.” 440.11(1)(b), Fla. Stat.

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