Boston v. Publix Super Markets, Inc.
112 So. 3d 654
Fla. Dist. Ct. App.2013Background
- Boston, as personal representative of Keith L. Jackson, Jr., appeals a final summary judgment that Publix and Ramos are protected by worker’s compensation immunity.
- The trial court held Publix immune under § 440.11 because its conduct was not virtually certain to cause injury, meeting the statutory exception only if proven by clear and convincing evidence.
- The trial court also granted summary judgment for Ramos, finding no gross negligence to defeat employee immunity.
- The accident occurred at Publix’s Deer-field Distribution Center when Ramos, driving an Ottawa tractor, backed a trailer near a loading dock where Jackson was located; Jackson was crushed and died.
- An inoperative backup alarm on the Ottawa 934 was discovered after the incident; Ramos knew it had been non-functional for months and did not report it or file maintenance inspections.
- OSHA later cited Publix for the inoperative backup alarm; prior center accidents did not involve backing over an employee with Ottawa tractors.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Publix is immune under § 440.11 | Boston argues the employer’s conduct was virtually certain to cause injury or death. | Publix contends the evidence shows no virtual certainty and no concealment or deliberate misrepresentation. | Publix immunity affirmed; no virtual certainty shown. |
| Whether Ramos is immune as a fellow-employee or liable for gross negligence | Boston contends Ramos was grossly negligent, defeating immunity. | Ramos argues no gross negligence to defeat immunity. | Summary judgment reversed on Ramos for gross-negligence issue; material facts exist. |
Key Cases Cited
- Gorham v. Zachry Indus., 105 So.3d 629 (Fla. 4th DCA 2013) (sets the 'virtual certainty' standard for employer immunity preemption)
- List Indus. v. Dalien, 107 So.3d 470 (Fla. 4th DCA 2013) (reiterates narrow immunity and summary-judgment gateway)
- Fleetwood Homes of Fla., Inc. v. Reeves, 833 So.2d 857 (Fla. 2d DCA 2002) (discusses threshold for hostile-standard reasoning on immunity)
- Hoyt v. Corbett, 559 So.2d 98 (Fla. 4th DCA 1990) (defines gross negligence in worker’s compensation context)
- E. Qualcomm Corp. v. Global Commerce Ctr. Ass’n, 59 So.3d 347 (Fla. 4th DCA 2011) (summary-judgment appropriateness when facts raise doubt)
- Cummins v. Allstate Indem. Co., 732 So.2d 380 (Fla. 4th DCA 1999) (trial court should not rely on chance favorable outcomes in summary judgment)
- Fischer v. Bernard’s Surf, 217 So.2d 576 (Fla. 4th DCA 1969) (summary judgment limits; cannot substitute trial with guesswork)