Recent statutory changes and case law have drastically limited the rights of employees injured by the conduct of their employers. However, employees injured by the conduct of their employers can still pursue a lawsuit against their employer outside the workers’ compensation scheme under certain circumstances.

The general rule under Florida’s workers’ compensation act is that if the employee is injured during the course and scope of employment, the remedy is to seek the limited compensation available under workers’ compensation laws. At the same time, the employer is generally immune from civil lawsuits brought by the employee due to the conduct of the employer that caused the employee harm. Before 2003, to overcome the employers workers’ compensation immunity, a plaintiff was required to prove the employer’s conduct was “substantially certain” to result in injury or death.

In 2003, the Legislature amended Section 440.11 of Florida statutes. According to the amendment, one exception from workers’ compensation immunity is an intentional tort under Section 440.11(1)(b)2. In cases where the employee has alleged the “virtual certainty” exception, the plaintiff must prove at trial by clear and convincing evidence 1) employer knowledge of a known danger, based upon prior similar accidents or explicit warnings specifically identifying the danger that was virtually certain to cause injury or death to the employee, 2) the employee was not aware of the danger because it was not apparent and 3) deliberate concealment or misrepresentation by the employer, preventing employee from exercising informed judgment as to whether to perform the work. Gorham v. Zachary Industrial, 105 So. 3d 629, 633 (Fla. 4th DCA 2013).

Before this amendment took effect, Florida appellate courts permitted plaintiffs to pursue claims for intentional torts against their employers. Since the amendment, the appellate courts are routinely ruling against injured employees under the intentional tort exception. The first appellate decisions to apply the 2003 amendment were decided recently—all in favor of the employer and against the employee. For example, see Gorham affirming summary judgment in favor of the employer finding the conduct was not “virtually certain” to result in injury; Boston v. Publix Supermarkets, 112 So. 3d 654 (Fla. 4th DCA 2013) affirming summary judgment in favor of the employer based on workers’ compensation immunity; Figueroa v. Delant Construction, 118 So. 3d 272 (Fla. 3d DCA 2013); List Industries v. Dalien, 107 So. 3d 470, 471 (Fla. 4th DCA. 2013) reversing a $2.7 million jury award to an employee whose hand was amputated while using a steel press machine; Vallejos v. Lan Cargo, 116 So. 3d 545 (Fla. 3d DCA 2013) finding immunity for general contractors and subcontractors.

Is this the end of the intentional tort exception to workers’ compensation immunity? And is this the end of an employees’ ability to pursue a civil lawsuit against his or her employer for injuries caused by the intentional or negligent conduct of their employer? The answer to both questions is no.

One of the intentional tort exceptions has been significantly limited by the 2003 amendment and recent appellate decisions.

However, this does not mean the intentional tort exception has been abolished. Each case will stand on its own specific facts.

Clients who have been injured as a result of their employers’ intentional or negligent conduct should contact a lawyer with experience in navigating the various other exceptions to workers’ compensation immunity. Several avenues other than the intentional tort exception exist where clients can pursue full and fair compensation directly against their employer, co-employees and/or third party tortfeasors.