Should FL Shadow TX in Defining Gross Negligence?

West Palm Beach, FL (WorkersCompensation.com) - To be or not to be remains the question with workers' compensation and gross negligence.

In the case of Villalta v. Cornn International, the death of a Florida drywall worker who was killed due to alleged gross negligence brings up the fine line between blatant abandon and straightforward negligence, according to workers' compensation experts and attorneys, Phil Griffs and Nicholas Romanello.

Currently, Florida law bars contractors and subcontractors from being sued for gross negligence when another subcontractor employs and insures its own crew. But this was not the case in this instance, according to the Villalta estate, who alleged the wrongful death of its loved one was caused by the HVAC company Tropic Aire, which did not warn workers on site of potential danger by properly covering up and labeling a hole in the floor.

The trial court disagreed, claiming the estate's evidence did not support a finding of gross negligence. In its appeal, the Villalta estate supplied testimony from other workers, who stated the employee fell to their death due to an uncovered cutout in the floor. Consequently, the court changed its position and sent the case to a jury.

Discussing the Florida case, West Palm Beach attorney Nicholas Romanello, vice president and chief risk officer at Health First, a not-for-profit healthcare delivery system, said the decision to send the Villalta case to a jury underscores the greater debate in the nation over "judicial activism and the courts mental gymnastics to get what they believe to be the preferred result."

"The decision has the potential to create a great deal of uncertainty and lack of clarity for the folks in Florida,” said Romanello, who was awarded with Trend Magazine's Florida Legal Elite in 2011 and 2015. 

Texas attorney Phil Griffs, who specializes in civil litigation, explains that after all is said and done, there are potentially four different sets of eyes looking at a case: a trial judge, the jury, the court of appeals, and the Supreme Court.

"You have to hope someone along that line will say it doesn't meet the definition of gross negligence," Griffs said out of his Houston-based office. "In Texas, most state attorneys don't include gross negligence because they know if they do, defense lawyers will ignore it, because they know it is never going to happen.”

And if it does, Griffs said it would be likely that "you would do what this company [Cornn International] did and ask the trial court to throw it out before it ever gets to trial."

The Lone Star State attorney, certified as a Trial Specialist by the National Board of Trial Advocacy, said Florida is a bit more liberal when it comes to findings of gross negligence. "Here in Texas, we have strict laws on what constitutes gross negligence and how those cases are to be tried," he said, noting that in Texas to be awarded with blatant abandon requires a unanimous jury.

"If it does go to a jury, the findings will be picked apart with a fine-tooth comb and put under a microscopic to see if it really rises to the level of gross negligence."

Per Romanello, workers’ compensation law is Byzantine to begin with, and the Florida case only confounds matters. "It [workers' compensation law] is unlike other areas of the law. You are adding confusion to an already confusing and hyper-complex system and it is difficult for workers, lawyers and employers to operate [within that system]," he said. "That is the real issue I see with the decision."

Romanello reports that at any given time, tens of millions of dollars of development in construction projects are ongoing in Florida. "Our economy is built in large part upon construction and development. For a decision like this to integrate this level of uncertainty is troubling," he said. "That is why you see here in Florida, Gov. Rick Scott often kind of models what he wants to do legislatively and legally based upon what Texas does."

While attempting to move forward with what works, Romanello said in the interim, the back and forth fight "is such a huge waste of time and resources."

According to Griffs, ultimately leaving it in the hands of a jury in Texas could be the smartest move of all. 

"If we let juries decide whether or not someone is or isn't going to get the death penalty, it seems to make sense to empower them with the decision to on whether or not a company is grossly negligent," he said.

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