ELECTRIC BOAT CORPORATION vs SYLVIA FALLEN

• Court: District Court of Appeal of Florida
• Decided: June 17, 2022
• Docket: 21-1519
• Status: Published

Opinion

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

ELECTRIC BOAT CORPORATION,

Appellant,

v. Case No. 5D21-1519 LT Case No. 2016-CA-043968

SYLVIA FALLEN,

Appellee. ________________________________/

Opinion filed June 17, 2022

Nonfinal Appeal from the Circuit Court for Brevard County, Curt Jacobus, Judge.

Jay A. Yagoda, of Greenberg Traurig, P.A., Miami, and Gregory W. Kehoe and Danielle S. Kemp, of Greenberg Traurig, P.A., Tampa, for Appellant.

Brian J. Lee, of Morgan & Morgan, Jacksonville, for Appellee.

EISNAUGLE, J.

Electric Boat Corporation appeals an order granting Sylvia Fallen’s

motion for summary judgment, and denying Electric Boat’s dueling motion,

on Electric Boat’s affirmative defense of horizontal workers’ compensation immunity pursuant to section 440.10, Florida Statutes (2014). We have

jurisdiction1 and reverse because the undisputed facts at summary judgment

establish that Electric Boat was not grossly negligent as a matter of law and

is therefore immune from liability under the exclusive remedy provision of

Florida’s workers’ compensation statute. 2 See § 440.10(1)(e)(2), Fla. Stat.

(2014). We do not reach the other issues raised on appeal.

Facts at Summary Judgment

The material facts are not in dispute. In 2015, the United States Navy

contracted for work on a large project in Cape Canaveral, Florida. Fallen’s

employer, Ivey’s Construction, was a subcontractor on the project and was

responsible for most of the construction work. Fallen was Ivey’s supervisor

on the project and had a mobile office trailer on site.

Electric Boat also performed work at the project site. While working

the night shift on the evening before Fallen’s injury, Electric Boat employees

determined that the stairs on the south side of Fallen’s mobile office were in

their way. They checked the area and confirmed that no one was present at

the site, and they knocked on the locked doors of the trailer to ensure no one

1 Fla. R. App. P. 9.130(a)(3)(C)(v). 2 The summary judgment order in this case was rendered pursuant to Florida’s revised summary judgment rule. See In re Amends. to Fla. R. Civ. P. 1.510, 317 So. 3d 72, 81 (Fla. 2021).

2 was inside. However, they did not place barrier tape on the exterior of the

south door, nor did they notify anyone at Ivey’s that they were moving the

stairs. Instead, they intended to move the stairs back before leaving, but

they forgot to do so.

The next morning, Fallen arrived and noticed congestion at the

worksite. She drove past the south door to her mobile office, parked, and

entered the north office door. Fallen then walked to the southside window

but could not see because it was still dark outside. Intent on resolving the

congestion issue, she put on her hard hat, stepped out of the southside door,

and fell three-and-a-half feet to the ground. She sustained injuries and

receives workers’ compensation coverage for her injuries and lost wages.

Fallen filed suit below for gross negligence3 and moved for summary

judgment, arguing that the undisputed facts established Electric Boat was

grossly negligent as a matter of law. Electric Boat not only opposed Fallen’s

motion but filed for summary judgment itself, arguing that the undisputed

facts in the summary judgment record established it was immune from suit

because it was not grossly negligent. The trial court agreed with Fallen,

concluding that Electric Boat was grossly negligent as a matter of law, and

Fallen initially alleged both simple negligence and gross negligence. 3

However, she later abandoned her simple negligence claim.

3 entered partial summary judgment against Electric Boat on its affirmative

defense of horizontal immunity. The trial court denied Electric Boat’s motion

as a matter of law in the same order.

Electric Boat concedes that its employees should have returned the

stairs. The summary judgment evidence also suggests that Electric Boat did

not provide adequate oversight of its employees at the worksite and did not

have procedures in place “for management, oversight and execution of work”

at the site. However, it is also undisputed that an accident like this had not

happened before Fallen’s injury or since.

Analysis

On appeal, Electric Boat argues that the trial court erred when it

entered partial summary judgment in favor of Fallen on the issue of horizontal

immunity, and when the trial court denied Electric Boat’s own motion for

summary judgment. We agree.

We review an order granting summary judgment de novo. Thompson

o/b/o R.O.B. v. Johnson, 308 So. 3d 250, 252 (Fla. 5th DCA 2020); Ramsey

v. Dewitt Excavating, Inc., 248 So. 3d 1270, 1272 (Fla. 5th DCA 2018). A

trial court “shall grant summary judgment if the movant shows that there is

no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fla. R. Civ. P. 1.510(a).

4 In this case, the parties agree that Electric Boat is immune from liability

for simple negligence. See §§ 440.10–.11, Fla. Stat. (2014). Nevertheless,

a subcontractor is not immune from liability where the “major contributing

cause” of the accident was the subcontractor’s own gross negligence. See

§ 440.10(1)(e)(2), Fla. Stat. (2014).

This court has explained the difference between simple and gross

negligence as follows:

[S]imple negligence is that course of conduct which a reasonable and prudent man would know might possibly result in injury to persons or property whereas gross negligence is that course of conduct which a reasonable and prudent man would know would probably and most likely result in injury to persons or property. To put it another way, if the course of conduct is such that the likelihood of injury to other persons or property is known by the actor to be imminent or “clear and present” that negligence is gross, whereas other negligence would be simple negligence. Carraway v. Revell, 116 So. 2d 16 (Fla. 1959); Bridges v. Speer, 79 So. 2d 679, 682 (Fla. 1955). [G]ross negligence consists of a conscious and voluntary act or omission which is likely to result in grave injury when in the face of a clear and present danger of which the alleged tortfeasor is aware. . . . Accordingly, to establish a case submissible to a trier of fact there must be a prima facie showing of a composite of circumstances, which, together, constitute a clear and present danger; there must be a prima facie showing of an awareness of such danger; and there must be a prima facie showing of a conscious, voluntary act or omission in the face thereof which is likely to result in injury. Glaab v. Caudill, 236 So. 2d 180 (Fla. 2d DCA 1970).

5 Weller v. Reitz, 419 So. 2d 739, 741 (Fla. 5th DCA 1982) (alteration in

original).

In other words, there are three elements to prove gross negligence:

“(1) circumstances constituting an imminent or clear and present danger

amounting to a more than normal or usual peril, (2) knowledge or awareness

of the imminent danger on the part of the tortfeasor, and (3) an act or

omission that evinces a conscious disregard of the consequences.”

Moradiellos v. Gerelco Traffic Controls, Inc., 176 So. 3d 329, 335 (Fla. 3d

DCA 2015) (citation omitted); see also Ramsey, 248 So. 3d at 1273. We

recognize that the difference between simple negligence and gross

negligence is “theoretically clear” but is sometimes “difficult-to-apply.”

Moradiellos, 176 So. 3d at 334.

These facts do not establish a prima facie case of gross negligence.

Fallen argues that the act of moving the staircase itself “created an obvious

clear and present danger of serious harm.” However, this misses the point.

The undisputed evidence here is that Electric Boat intended to replace the

stairs before leaving the worksite.4 See Fleming v. Peoples First Fin. Sav. &

4 Importantly, we can identify no summary judgment evidence from which a jury could reasonably draw an inference that would put Electric Boat’s intent to return the stairs in dispute, and Fallen has identified none.

6 Loan Ass’n, 667 So. 2d 273, 274 (Fla. 1st DCA 1995) (“Because Fleming

presented no evidence demonstrating the existence of an issue or issues of

fact, including fact-issues relating to intent, the trial court correctly entered

summary judgment against him.” (citation omitted)). 5 Had they not forgotten

to do so, no one would have been injured.

Therefore, when considering all the undisputed facts, we conclude that

Electric Boat did not “evince the conscious disregard” required to establish

gross negligence when it forgot to return the stairs. While Electric Boat might

have been negligent, it was not grossly negligent.

As such, we reverse the order granting partial summary judgment in

favor of Fallen and remand with instructions for the trial court to grant Electric

Boat’s motion for summary judgment on its affirmative defense of horizontal

immunity.

REVERSED and REMANDED.

EDWARDS, J., concurs. COHEN, J., concurs in part and dissents in part, with opinion.

5 See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986) (rejecting respondents’ argument that “the defendant should seldom if ever be granted summary judgment where his state of mind is at issue and the jury might disbelieve him or his witnesses as to this issue”).

7 CASE NO: 5D21-1519 LT Case No: 2016-CA-043968

COHEN, J., concurring in part and dissenting in part.

The line between simple and gross negligence is a matter of degree

and fact-specific, and when the distinction between the two is unclear, the

question should be submitted to the jury. See Courtney v. Fla. Transformer,

Inc., 549 So. 2d 1061, 1065 (Fla. 1st DCA 1989) (“[W]here the line separating

simple and gross negligence is doubtful or indistinct, ‘the question of whether

the negligence is ordinary or gross is one which should be submitted to the

jury.’” (quoting Foy v. Fleming, 168 So. 2d 177, 178 (Fla. 1st DCA 1964))).

While I agree with the majority that the trial court erred in granting Fallen’s

motion for summary judgment on the issue of gross negligence, I cannot

agree that Electric Boat is entitled to summary judgment on remand based

on the record before us.

The majority opinion correctly sets out what a plaintiff must establish

to make an initial showing of gross negligence. See Moradiellos v. Gerelco

Traffic Controls, Inc., 176 So. 3d 329, 335 (Fla. 3d DCA 2015). My

disagreement concerns whether Fallen demonstrated a disputed fact

regarding Electric Boat’s conscious disregard of the consequences sufficient

to withstand summary judgment against her.

8 It is axiomatic that on summary judgment the court must accept the

facts in the light most favorable to the nonmoving party, something the

majority has failed to do. See Grazette v. Magical Cruise Co., 280 So. 3d

1120, 1123 (Fla. 5th DCA 2019). Here, to perform work at the job site,

Electric Boat employees moved a set of stairs from the exit of an office trailer.

They did not place barrier tape on the door to prevent anyone from exiting

the trailer before the stairs were returned. At the conclusion of their assigned

task, the employees failed to replace the stairs, much to the detriment of

Fallen. The majority focuses on the fact that the employees testified that they

intended to replace the stairs but forgot. While that may be true, it is a rare

defendant who admits that he or she consciously intended to cause injury to

the plaintiff. That would fit the definition of an intentional tort, which is not the

issue here. But under the majority’s analysis, all a tortfeasor has to do to

avoid the issue of gross negligence from being submitted to the jury is

declare that he or she did not intend to harm the victim.

Rather than focus on what the employees said long after the incident,

we should look to their actions and the circumstances constituting an

imminent danger, the knowledge or awareness of the imminent danger, and

whether the act or omission evinces a conscious disregard of the

consequences. See Moradiellos, 176 So. 3d at 335. The majority appears to

9 acknowledge that Fallen presented sufficient evidence of the first two

elements, properly focusing on the issue of conscious disregard. That

element, of course, implicates the state of mind of the employees involved.

We should look at what the employees did, not only what they said after

becoming aware that someone was seriously injured by their actions, to

guide our decision in this case.

Taking the facts in the light most favorable to Fallen, Electric Boat’s

employees violated their own policies by removing the stairs without

receiving permission from their safety representative. Knowing the removal

of the stairs would pose a significant risk to anyone within the trailer, the

employees took prophylactic measures to ensure no one was inside. Yet

they did not place barrier tape—not an arduous task—to protect any person

who might enter the trailer and use the exit. One employee acknowledged

the obvious: failure to replace the stairs created a considerable hazard.

Despite being aware of the imminent danger, the employees left the job site

without any effort whatsoever to ensure that the hazard they created had

been remedied. In my view, that is sufficient evidence of conscious disregard

of the consequences to allow for a jury to determine whether Electric Boat

was grossly negligent; simply forgetting to conduct a critical safety measure

10 to protect against an admittedly significant danger does not eviscerate the

possibility of conscious disregard.

The cases relied upon by the majority in support of their decision to

enter summary judgment against Fallen are so factually distinguishable as

to render them of no value. In Anderson v. Liberty Lobby, Inc., 477 U.S. 242

(1986), the issue involved a defamation action pursuant to New York Times

Co. v. Sullivan, 376 U.S. 254 (1964). As such, the evidentiary standard to be

applied by the trial court was clear and convincing evidence as to whether a

genuine issue of actual malice existed, a far higher evidentiary standard than

that of the instant case. Moreover, the United States Supreme Court in

Anderson noted, “When determining if a genuine factual issue as to actual

malice exists in a libel suit brought by a public figure, a trial judge must bear

in mind the actual quantum and quality of proof necessary to support liability

under New York Times.” 477 U.S. at 254. Stated differently, “in ruling on a

motion for summary judgment, the judge must view the evidence presented

through the prism of the substantive evidentiary burden.” Id. It seems illogical

to analogize the instant case to one that concerned a vastly different

evidentiary burden.

The other case relied upon by the majority, Fleming v. Peoples First

Financial Savings & Loan Association, 667 So. 2d 273 (Fla. 1st DCA 1995),

11 is just as factually inapposite. There, summary judgment was granted on

counterclaims for alleged violations of RICO and TILA, 6 as well as claims for

breach of promise and defamation of credit. Id. While the majority quotes

language in Fleming helpful to their disposition, they ignore that the court

also stated, “generally, fact issues relating to intent do not lend themselves

to summary judgment.” Id. at 274. In the instant case, where conscious

disregard of the consequences necessarily involves a question of the

tortfeasor’s state of mind, the grant of summary judgment is improper.

Simply put, the fundamental issue in this case is who should make the

determination of whether Electric Boat’s actions were sufficient to constitute

gross negligence. The majority believes they are better suited to make that

determination. I respectfully submit it should be made by a jury.

6 “Racketeer Influenced Corrupt Organization” and “Truth In Lending Act.”