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special to the national law journal Michael L. Forte is an associate at Tampa, Fla.’s Rumberger, Kirk & Caldwell, where he practices in the areas of lemon law, premises liability and products liability. When an employer procures workers’ compensation insurance, that employer becomes immune from tort suit for employee injuries incurred within the scope of employment. Instead, the employee’s only recourse is to file a claim for workers’ comp benefits. However, one of the exceptions to this rule permits an employee to sue when the employer injured the employee through conduct that was “substantially certain to result in injury or death to the employee.” Turner v. PCR Inc., 754 So. 2d 683 (Fla. 2000); see also Davis v. CMS Continental Natural Gas Inc., 23 P.3d 288 (Okla. 2001) (citing case law from jurisdictions including Illinois, Alabama, North Carolina and Missouri). “Substantially certain” is a nebulous phrase, and takes on meaning only within the context of an individual case. This article provides guidelines to assist employers in anticipating the types of conduct courts are likely to consider substantially certain. The topic is especially relevant given the rising cost of workers’ compensation insurance. A 2002 study conducted by the Council of Insurance Agents and Brokers revealed that almost half of the agents and brokers polled reported a 10% to 30% increase in premiums, while about one-sixth reported a 30% to 50% increase. See State of Texas Research and Oversight Council on Workers’ Compensation, “Study of Workers’ Compensation Coverage Costs in Texas,” at www.roc.state.tx.us/IRDES.htm. The rising cost of premiums partially may be attributable to benefit delivery expenses, which are incurred during the administration of workers’ compensation claims. See Duncan S. Ballantyne and Carol A. Telles, Why Are Benefit Delivery Expenses Higher in California and Florida? (Abstracts) at www.wcrinet.org/studies/public/ abstracts/ben_delivery_exp-ab.html. If an employer is able successfully to assert workers’ compensation immunity, money currently paid out for such expenses could be used instead to help ease the costs paid by employers. See id. Generally, conduct will qualify as substantially certain when the employer creates a danger and then misrepresents the seriousness of that danger. But to take advantage of this observation, employers must be aware of the different types of conduct that may constitute misrepresentation. Such misrepresentations may be divided into four main forms. The first form is affirmative misrepresentation, such as telling employees a dangerous condition is not dangerous. See, e.g., Handley v. Unarco Industries Inc., 463 N.E.2d 1011 (Ill. App. Ct. 1984) (concluding that an employee had a right to sue in tort despite workers’ compensation coverage, based on the employee’s allegation that the employer “represented to plaintiffs that asbestos dust was not harmful” in an attempt to retain employees); but see Namislo v. Akzo Chemical Co., 671 So. 2d (Ala. 1995) (concluding that an employer is not liable for injuries resulting to an employee due to the employer’s misrepresentation, when the employer is unaware of the representation’s falsity at the time the statement was made); Briggs v. Pymm Thermometer Corp., 537 N.Y.S.2d 553 (N.Y. App. Div. 1989) (an employer’s intentional misrepresentation of workplace dangers does not abrogate the employer’s workers’ compensation immunity). For example, in Cunningham v. Anchor Hocking Corp., 558 So. 2d 93 (Fla. Dist. Ct. App. 1990), employees alleged that their employer modified a smokestack to cause fumes to flow into the workplace and periodically turned off the workplace’s ventilation system. The complaint further alleged that the employer misrepresented the dangerousness of toxic substances and the need for safety equipment. The court ruled that the employer’s actions took the case outside of the scope of workers’ compensation. One way to defend against an accusation of affirmative misrepresentation would be to argue that the injury-causing danger was obvious to the employee. E.g., Quick v. Myers Welding & Fabricating, 649 So. 2d 999 (La. Ct. App. 1995) (reversing summary judgment in favor of the employer because the record was unclear as to whether the dangers of employment were obvious to the injured employee). For example, in Subileau v. Southern Forming Inc., 664 So. 2d 11 (Fla. Dist. Ct. App. 1995), an employee was killed after falling off an elevated construction site. The Occupational Safety and Health Administration had cited the employer several times for failing to provide guardrails, and the employer knew of its employees falling off elevated construction sites in the past. When the deceased employee’s wife attempted to sue the employer in tort, the court ruled the suit was barred by the employer’s workers’ compensation immunity. The court reasoned that the danger of working on elevated construction sites without guardrails was obvious to the employees. In effect, when a danger is obvious to an employee, the employer did not succeed in affirmatively misrepresenting that danger. See also Tinoco v. Resol Inc., 783 So. 2d 309 (Fla. Dist. Ct. App. 2001) (employer retained immunity when employee was injured by an obviously defective machine). Concealed dangers The second form is passive misrepresentation (i.e., concealing the dangerousness of employment without expressly stating that the employment does not involve danger). E.g., Day v. NLO Inc., 811 F. Supp. 1271 (S.D. Ohio 1992) (an employer’s concealment of radioactive hazards in the workplace entitles employees to sue in tort for resulting injuries, despite the existence of workers’ compensation insurance); Johnson v. W.R. Grace & Co., 642 F. Supp. 1102 (D. Mont. 1986) (company’s doctor’s intentional concealment of employees’ asbestos-related injuries entitled the employees to sue the employer in tort); Millison v. E.I. du Pont de Nemours & Co., 501 A.2d 505 (N.J. 1984) (an employee’s complaint stated a valid cause of action, despite the existence of workers’ compensation insurance, by alleging that an employer concealed the presence of asbestos in the workplace). For example, in Connelly v. Arrow Air Inc., 568 So. 2d 448 (Fla. Dist. Ct. App. 1990), the widow of a co-pilot killed on the job sued the airline for which the co-pilot worked. The complaint alleged that the airline deliberately and routinely reduced the safety of its planes to save money, and kept this information from its employees. The court ruled that under these facts, the employer was “considered to have acted in a ‘belief that harm is substantially certain to occur.’ “ Because of the nature of passive misrepresentation, an employer relying on the argument that the injury-causing danger was obvious to the employee is unlikely to succeed in retaining its immunity. Unlike the situation in Subileau, in which the employee was capable of using common sense to assess the dangerousness of working on an elevated construction site, the co-pilot in Connelly did not have all of the information required to assess accurately the dangers of his work environment. In fact, an employer may lose its immunity even if employees become aware of certain dangers despite the employer’s passive misrepresentation. In Connelly, for example, the facts indicated that several crew members were aware of general maintenance problems and flight risks. Presumably, the deceased co-pilot was aware of at least the more obvious of these problems, as the crew on the plane that crashed was required to retard the throttle during takeoff to compensate for a malfunctioning engine. But see Davis v. Lockheed Corp., 17 Cal. Rptr. 2d 233 (Calif. Ct. App. 1993) (affirming summary judgment in favor of an employer who allegedly concealed the presence of asbestos in the workplace, partly because the injured employee discovered the danger and voluntarily returned to work). Disappearing warning labels The third form of misrepresentation is the removal of warning labels and safety devices from workplace machinery. See, e.g., Tomeo v. Thomas Whitesell Constr. Co., 823 A.2d 769 (N.J. 2003) (ruling that an employer’s removal of safety devices from workplace machinery may abrogate workers’ comp immunity depending on the facts of the case); Fryer v. Kranz, 616 N.W.2d 102 (S.D. 2000) (noting that an employer’s hiring of employees unable to read warning labels may abrogate workers’ comp immunity depending on the facts of the case); Moisei v. Pilkington Barnes-Hind Inc., 1997 Conn. Super. Lexis 2293 (Conn. Super. Ct. 1997) (ruling that an employee’s complaint stated a cause of action in tort, despite the existence of workers’ comp insurance, by alleging that the employer ordered the employee to operate machinery without safety devices or warning labels). An employer did just that in Myrick v. Luhrs Corp., 689 So. 2d 416 (Fla. Dist. Ct. App. 1997). The court considered such actions sufficient to abrogate workers’ comp immunity. In a way, removing warning labels and safety devices is akin to passive misrepresentation. Both forms prevent an employee from understanding the true extent of the danger in a given situation. However, similar to an employer accused of affirmative misrepresentation, an employer accused of removing warning labels and safety devices may defend itself by demonstrating that the injured employee nevertheless was aware of the dangers associated with operating the machinery. For example, in Wilks v. Boston Whaler Inc., 691 So. 2d 629 (Fla. Dist. Ct. App. 1997), an employer required its employees to work with dangerous chemicals, but did not pass on to the employees warning labels promulgated by the chemicals’ manufacturer. The court ruled that the resulting injuries were not substantially certain, because the injured employee was informed of the dangerousness of the chemicals through training sessions. See also Kline v. Rubio, 652 So. 2d 964 (Fla. Dist. Ct. App. 1995) (ruling that an employer was protected by workers’ comp immunity even though an employee was injured after the employer removed safety devices and warning labels from an obviously dangerous machine); but see Schefsky v. Evening News Ass’n, 425 N.W.2d 768 (Mich. Ct. App. 1988) (ruling that an employer was entitled to workers’ comp immunity despite the employer’s transfer of dangerous chemicals from their original containers, to which warning labels had been affixed, to unlabeled containers). The fourth form of misrepresentation is specifically ordering an employee to perform a task that the employer knows is unreasonably dangerous. See Kilminster v. Day Mgt. Corp., 919 P.2d 474 (Ore. 1996) (ruling that an employer’s workers’ comp immunity was abrogated when the employer ordered the employee to climb a radio tower with defective climbing equipment); Kielwein v. Gulf Nuclear Inc., 783 S.W.2d 746 (Texas App.-Houston [14th Dist.] 1990) (reversing summary judgment in favor of an employer where the employer ordered an employee to decontaminate a radioactive area without safety equipment); Boudeloche v. Grow Chemical Corp., 728 F.2d 759 (5th Cir. 1984) (reversing the dismissal of an employee’s tort suit, and concluding that an employer’s order to an employee to paint the interior of a tank without ventilation equipment was substantially certain to result in injury to the employee). In such cases, the danger of carrying out the employer’s order usually is apparent to both the employer and employee. Thus, in a practical sense, ordering an employee to perform an unreasonably dangerous task is not “misrepresentation.” Nevertheless, courts analyzing such cases tend to focus on the employer’s (as opposed to the employee’s) awareness of the respective danger. One can view this phenomenon as the courts utilizing a legal fiction, that is, in effect, treating the employer’s order as a “certification” that the task is safe. So in this sense, one may view such an order as a species of misrepresentation. For example, in EAC USA Inc. v. Kawa, 805 So. 2d 1 (Fla. Dist. Ct. App. 2001), an employee was injured after an employer removed a safety guard from a printing press and then ordered the employee to work on one of the press’s unguarded areas while the press was running. The court ruled a complaint containing such facts was sufficient to allege substantially certain conduct. However, courts traditionally have been reluctant to recognize this form of misrepresentation as a means by which workers’ comp immunity may be abrogated. For example, before the Turner case in 2000, courts had ruled that employers were protected by workers’ comp immunity even when the employers ordered their employees to perform tasks in which the dangerousness was known only to the employer. E.g., Clark v. Gumby’s Pizza Sys. Inc., 674 So. 2d 902 (Fla. Dist. Ct. App. 1996); United Parcel Service v. Welsh, 659 So. 2d 1234 (Fla. Dist. Ct. App. 1995); General Motors Acceptance Corp. v. David, 632 So. 2d 123 (Fla. Dist. Ct. App. 1994). One explanation of this result is that before Turner, courts interpreted the substantial-certainty standard as requiring virtual certainty of injury or death to an employee. Id. If these cases were decided today, courts would be more likely to rule that such conduct does rise to the lesser threshold of substantial certainty. In other jurisdictions, courts often have provided case-specific reasons for this reluctance. E.g., Suarez v. Dickmont Plastics Corp., 698 A.2d 838 (Conn. 1997) (concluding that an employee’s injury was not substantially certain because when the employer ordered the employee-with his bare hands-to clean hot plastic material away from the machines that were still operating, the employer did not truly believe injury was likely); Brazones v. Prothe, 489 N.W.2d 900 (S.D. 1992) (concluding that an employer’s order that employees clean a petroleum storage tank without adequate safety equipment or training amounted to a probable risk of injury, but a probable risk is less than a substantial certainty). An employer will increase its chances of retaining workers’ compensation immunity when it strives to avoid the forms of misrepresentation outlined above. Probably few employers are guilty of affirmatively misrepresenting workplace dangers. However, employers should be aware of the less obvious forms of misrepresentation, such as passive misrepresentation, removing warning labels and safety devices, and assigning tasks without providing the safeguards necessary to prevent that task from being viewed as unreasonably dangerous.

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