Gorham v. Zachry Industrial, Inc.
105 So. 3d 629
Fla. Dist. Ct. App.2013Background
- Gorham, an employee of Zachry Industrial, sued for an intentional tort arising from a construction-site injury.
- Zachry contracted with Florida Power & Light to build a natural gas plant in Loxahatchee, Florida; Gorham was injured while rigging a nine-ton wall.
- Safety procedures included a wind/weather evaluation; a lift was planned with tag lines and wind considerations.
- Disputes arose over whether wind-speed readings were checked and by whom; Gorham claimed foremen failed to verify wind conditions.
- The trial court granted summary judgment, concluding Zachry was immune under § 440.11(1) and that Gorham failed to prove the strict elements of the intentional-tort exception.
- Appellant Gorham appeals the summary judgment, arguing issues on knowledge of danger, warning adequacy, and deliberate concealment by Zachry.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Zachry's conduct met the virtual-certainty standard. | Gorham: employer knew explicit warnings and risks were virtually certain to injure. | Zachry: no evidence of virtually certain injury; conduct was negligent but not intentional. | No; no virtual certainty proven; immunity affirmed. |
| Whether Gorham proved all three elements of § 440.11(l)(b)2. | Gorham contends foremen knew danger and concealed or misrepresented it. | Zachry argues no evidence of deliberate concealment; risk not shown as virtually certain. | No; elements not satisfied; summary judgment for Zachry maintained. |
Key Cases Cited
- Turner v. PCR, Inc., 754 So.2d 683 (Fla. 2000) (adopts strict framework for intentional-tort exception to workers' comp immunity)
- Travelers Indem. Co. v. PCR Inc., 889 So.2d 779 (Fla. 2004) (recognizes virtual-certainty standard for employer conduct)
- Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 161, 501 A.2d 505 (N.J. 1985) (illustrates Millison standard; Florida adopts stricter virtual-certainty standard)