$2.7 Million Judgment Reversed

January 24, 2013
By Mark A. Kaire on January 24, 2013 6:15 PM |

Workplace accidents in Florida are an everyday occurrence. Florida law provides that an injured worker is entitled to Workers Compensation benefits, and in extremely rare cases, an injured worker can sue his employer in Negligence. The major distinction between the two is that in Negligence an injured worker is entitled to receive damages such as:

Pain and Suffering;
Loss of Enjoyment of Life;
Future Lost Wages or Loss of Earning Capacity

Alternatively, Workers Compensation is an antiquated system that provides the injured worker with medical care and lost wages for up to 104 weeks.

The difference in damages recoverable are significant. However, in order to sue an employer for negligence the injured workers burden of proof is nearly insurmountable.

Specifically an injured worker must prove by clear and convincing evidence that:


1. The employer deliberately intended to injure the employee; or

2. The employer engaged in conduct that the employer knew, based on prior similar accidents or on explicit warnings specifically identifying a known danger, was virtually certain to result in injury or death to the employee, and the employee was not aware of the risk because the danger was not apparent and the employer deliberately concealed or misrepresented the danger so as to prevent the employee from exercising informed judgment about whether to perform the work.

As a Miami Personal Injury Lawyer, I am forced to tell injured workers that despite the fact they have been catastrophically injured, they are not entitled to damages for their Pain and Suffering, and that is exactly what the 4th D.C.A. said by reversing a $2.7 Million judgment.

The facts are that Phiteau Dalien was employed by List Industries Inc., a Pompano Beach manufacturer of steel lockers. Mr Dalien was injured in 2005, when he slipped and fell into machinery that crushed his hand.

A jury concluded that List Industries was negligent because:

Safety guards were not used,
the foot pedal was covered with grease,
no videos were used to train workers, and
previous accidents on different machines caused injuries.

Despite the obvious negligent conduct, the award was reversed because Mr. Dalien did not prove that he was unaware of the risk of operating a machine that was obviously and inherently dangerous. The court reasoned that, "There can be no question that it was obvious to the employee that the machine could crush a hand,"
"He was trained on the equipment, and he was supervised in its operation. He had operated the equipment for more than a month before the accident occurred."

This case demonstrates the difficulty in pursuing a negligence claim against an employer. The difficulty is not in proving that the conduct was was virtually certain to result in injury or death to the employee, but rather in proving that the employee was not aware of the risk because the danger was not apparent and the employer deliberately concealed or misrepresented the danger so as to prevent the employee from exercising informed judgment about whether to perform the work.

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