Highway work zones are dangerous both for the motorists who navigate them and the workers employed there.
The U.S. Department of Transportation reports an estimated 88,000 crashes happened in work zones in 2010. Most of these don’t lead to fatalities, but when they do, it can leave families reeling. When a worker is killed, he or she is often a major contributor to the family household income, and it’s important for families to explore all viable options for compensation to ensure future financial security.
Luckily, most if not all of these workers are entitled to some form of workers’ compensation. This is money paid out to an injured worker or, in the event of the worker’s death, his or her surviving, dependent family members. It is not necessarily in a workers’ compensation action to prove negligence, only that the accident occurred in the course and scope of employment. However, workers/family members who collect these benefits cannot pursue legal action against the employer for negligence. There may be an opportunity to file a third-party liability action, but that will depend on the circumstances of the case.
The only exception to this exclusive remedy clause is if there is gross negligence, and that is an almost impossibly high standard to achieve because it means the worker has to prove the company took action they knew would likely cause imminent danger of death or injury to the worker.
Third parties such as private motor vehicle drivers and their insurers clearly could not claim protection under this statute. However, there may be situations in which general contractors and others would be extended this immunity under the guidelines as “statutory employers.”
It’s a complex area of law, and our Orlando work injury attorneys recommend anyone with questions seek legal counsel from a law firm with extensive experience in these matters.
The recent and tragic case of Moradiellos v. Gerelco Traffic Controls, Inc. reveals some of the challenges people can face in overcoming these hurdles.
According to court records, the case involved a roadway construction project wherein crews were widening the Florida Turnpike for a stretch of 17 miles. This was an FDOT project, and the contractor was Community Asphalt, which in turn hired a number of subcontractors, including Gerelco. Decedent was an employee of Community.
Gerelco was responsible for repair and maintenance of existing highway lighting. Decedent was an asphalt surveyor.
Accident happened at 3 a.m. when decedent was determining where road markings and traffic lines should be painted. He had a headlamp, and although the lighting overhead had not functioned for more than a year (in spite of repeated warnings from FDOT to fix it), his employer didn’t request portable lamps because he was working far away from where the other construction vehicles were located.
The accident happened when the driver of a dump truck, owned by decedent’s employer, backed over him. That driver had been specifically instructed only to drive forward, but he did not heed this construction. In doing so, he violated company policy and it resulted in the death of this worker.
Worker’s estate filed a wrongful death lawsuit against numerous parties, including Gerelco. Estate claimed the subcontractor failed to keep the high mast light near the crash in working order.
Discovery would show the company had tried to activate the light numerous times, but there were technical issues.
Gerelco argued in court it was entitled to immunity under workers’ compensation laws. Trial court granted summary judgment in favor of Gerelco.
Decedent’s estate appealed. It argued first the subcontractor was involved in “unrelated works,” and therefore was not entitled to employer immunity exception. The court rejected this theory because the subcontractor had obtained workers’ compensation for the site per the terms of the contract with general contractor.
Estate alternatively argued defendant acted with gross negligence, and therefore an exception should be granted to the employer immunity rule. Appeals court rejected this argument too. Although the concepts of simple negligence and gross negligence would seem straightforward, the differences can be tough to ascertain. In order to find conduct is grossly negligent, one must show the conduct is such that the likelihood of injury to other persons or property is known to be imminent or clear and present. The court did not find a reasonable jury could reach this conclusion in this case.
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Moradiellos v. Gerelco Traffic Controls, Inc. , August 2015, Florida’s 3rd District Court of Appeal
More Blog Entries:
Chin v. Koryo Corp. et al. – Construction Site Fall Nets $2.8M Verdict, Aug. 28, 2015, Orlando Work Injury Attorney Blog