Langham: Not Always an Accident

January 7, 20206

Workers' compensation is a system designed to protect employers and employees from "unexpected events happening suddenly." That phrase, or one like it, is featured in various statutes across the country.

The Florida version is:

“Accident" means only an unexpected or unusual event or result that happens suddenly.

But what if the event is neither unexpected nor particularly unusual? What if the event is even intentional?

I had thoughts on this recently as a news story evolved around workplace hazing. The event resulted in criminal charges of kidnapping, robbery and battery against multiple workers. The victim is reportedly back at work, and the alleged perpetrators are seeking opportunities for remuneration elsewhere (fired).

As with too much today, the alleged incident is said to have started with social media. The victim apparently had a dance video on his phone, and his co-workers "began taunting ... about the video."

As a rhythm-challenged person, I can identify with this. This taunting allegedly led to violence perpetrated against the victim. This, according to WFTV. Further details are in an earlier WFTV report.

I spare the details, but if the allegations are true, the battery portion may be readily perceived. Hitting people is not a great idea in any circumstance. My students often struggle with battery and accepting that merely touching someone could lead to arrest. A recent People story about a flight attendant supports that.

Admittedly, there is nothing in the reporting on the recent hazing that suggests this is an instance of work injury or even that medical care was required. Some battery is worse than others. Nonetheless, the situation described reminded me of several cases I litigated eons ago in a galaxy far, far, away (Jacksonville). One of those was a severe enough beating to require significant medical care.

Does the workers' compensation law consider the potential that a co-worker might be responsible for, or contribute to, an injury? The right place to begin such an analysis is Section 440.11, the "exclusivity" provision.  This exclusivity is seen by many as the main benefit that employers enjoy from workers' compensation.

What is less discussed is that this section provides "the same immunities from liability (for injury) enjoyed by an employer" to "each employee of the employer" in many or even most instances. Thus, co-workers who contribute to an "accident" enjoy some protection from civil (tort) liability, just as the employer itself does.

But, there is an important exception that follows in that same statute section:

Such fellow-employee immunities shall not be applicable to an employee who acts, with respect to a fellow employee, with willful and wanton disregard or unprovoked physical aggression or with gross negligence when such acts result in injury or death or such acts proximately cause such injury or death.

So, if an employee beats a co-worker, there is at least some chance that the workers' compensation law will not protect the beater from a lawsuit by the beatee.

There is also a broad provision that might preclude the payment of workers' compensation in such a beating. Section 440.09(3) might preclude the beatee from receiving compensation if the injury arose in an instance where the beatee began as the beater (the "aggressor").

Thus, the analysis can be complex at times. Nonetheless, there is the potential for violence in the workplace to create workers' compensation liability for the employer and potentially tort liability for co-workers. It is all worthy of review and consideration.