Florida Court Reaffirms Tests For Exception to Workers’ Compensation Immunity

Written by: Rayford Taylor, Esq.


Plaintiffs seeking damages from employers or co-employees allegedly arising from the negligence in a workplace accident must properly plead and prove facts which support intentional or grossly negligent conduct to defeat workers’ compensation immunity.


Mr. and Mrs. Ramsay, as personal representatives of their son’s estate, sued the employer and a co-employee for the death of their son, Randy. The trial court ruled that workers’ compensation immunity protected the employer and the co-employee and dismissed the case. The parents appealed.

Generally speaking. Section 440.11 of the Florida Statutes provides for workers’ compensation immunity for employers and employees working in furtherance of the employer’s business. However, there is an exception.

The Fifth District Court of Appeal concluded that the employer was entitled to workers’ compensation immunity, but the co-employee was not entitled to immunity based upon the allegations in the Complaint. The parents alleged that the co-employee was liable for operating a cement mixing pug mill while their son was still inside the mixing box causing his death.

The Court held the parents had to show there were circumstances constituting an eminent or clear and present danger amounting to more than a normal or usual peril; knowledge or awareness of the eminent danger on the part of the co-employee, and an act or omission on the part of the co-employee that evinced a conscious disregard of the consequences.

The record indicated the co-employee directed the son into the pug mill for cleaning and later activated it without using any of the safety systems normally utilized by pug mill workers, or checking to see if the son was even inside. That being the case, a jury could find the co-employee had been grossly negligent. Accordingly, the co-employee was not entitled to workers’ compensation immunity and the parents should be given an opportunity to prove their gross negligence claim.

The point of the ruling in this case is that whenever you have employees who act in a manner which can be considered gross negligence, the potential exists for liability by them or the employer for damages outside of the workers’ compensation immunity. Employers must require their employees to implement required safety measures and apply them in every instance. If not, employers may be found not to be entitled to workers’ compensation immunity.