01-3585 BYERS V. RITZ

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State: Florida

Court: Florida Third District Court

Docket No: 01-3585 BYERS V. RITZ

Case Date: 12/15/2004

Preview:IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM, A.D. 2004

JOHN M. BYERS, as Personal Representative of the Estate of JOHN M. BYERS, JR., deceased Appellant, vs. DAVID RITZ and PAUL BARCINAS, Appellees.

** ** ** ** ** ** ** CASE NO. 3D01-3585 LOWER TRIBUNAL NO. 94-437

Opinion filed December 15, 2004. An appeal from the Circuit Court for Monroe County, Luis M. Garcia, Judge. Eversole & Rudd, P.A.; Albert Gordon; Hersch & Talisman, P.A. and Patrice A. Talisman, for appellant. Lane, Reese, Aulick, Summers & Field and Paul Field; David L. Markarian, for appellees.

Before SCHWARTZ, C.J., and COPE, LEVY, GERSTEN, GODERICH, GREEN, FLETCHER, SHEVIN, RAMIREZ, and SHEPHERD, JJ. ON MOTION FOR REHEARING EN BANC GREEN, J. We grant the appellees' motion for rehearing and rehearing en

banc, withdraw our previous opinion filed November 26, 2003, and issue the following in its stead. The plaintiff/appellant, John M. Byers, appeals from a final judgment entered in favor of the defendants/appellees, David Ritz and Paul Barcinas, in a wrongful death action. Because we find

that this action is barred by worker's compensation immunity, we affirm the final judgment in favor of the appellees. I. Facts This case arises out of the tragic death of John M. Byers, Jr., which occurred in the aftermath of Hurricane Andrew. On

August 24, 1992, Hurricane Andrew hit South Florida and caused substantial property damage. As a result of the storm, the

community of Ocean Reef, in Monroe County, was without electricity and phone service for weeks. Many of the roads were blocked by fallen debris and trees. Crew workers from the Monroe County Public Works Department were sent to clear the roads. The workers could On the day

not get the emergency vehicles through the debris.

after the storm, the public safety workers were manually clearing debris and trees when Delgado, a co-worker of Byers, spotted a backhoe at a gas station. The backhoe was owned by a construction

company named Pieco which had left it at the station to ride out the storm. Delgado thought that using the backhoe would be more efficient in their clearing efforts so he returned to the Public Safety Building to share his idea of taking and using this backhoe with his superiors, appellees David Ritz and Paul Barcinas. Once

Delgado allegedly received permission from Ritz and Barcinas to 2

take and use the backhoe, Delgado, Byers and others returned to the gas station, hot-wired the backhoe, and drove it back to the Public Safety Building. They could not contact the owner of the backhoe

because there was no telephone service at the time. At the Public Safety Building, Delgado used the backhoe to clear fallen roof tiles and to move a fallen antenna and propane tank. Delgado's superiors allegedly either approvingly watched him After the

operate the backhoe and/or directed him in its use.

parking lot was cleared, the decision was made to use the backhoe to clear the roads of Ocean Reef so emergency vehicles could pass. At approximately five o'clock in the afternoon, Delgado and Byers took the backhoe to Sunset Cay, a cul-de-sac, to clear a very large tree that had fallen across the road. Delgado and Byers used

a chainsaw to cut some of the heavier branches from the tree and pushed them out of the way with the backhoe. Delgado testified

that he then directed Byers to move away and that Byers moved at least 15 to 30 feet, if not 40 to 50 feet away from the backhoe. Delgado then attempted to move one of the recently cut tree limbs. When he put the backhoe into gear he heard a loud crack, felt a jolt, and looked over to see Byers lying on the ground.

Apparently, Delgado's actions had released another limb which unexpectedly broke free, pivoted in the air and struck Byers in the head causing massive injuries. Byers was airlifted to Jackson

Memorial Hospital where he remained in intensive care for five days before he died. Delgado later testified that 3 he was familiar with the

operation of heavy equipment and that he had operated a backhoe prior to the accident. This prior experience, however, did not

include the removal of tree limbs and he had not foreseen the possibility that another tree branch would suddenly be released. II. Proceedings Below

Byers' father filed this wrongful death action against his son's supervisors, Ritz and Barcinas. He alleged that because Ritz

and Barcinas had committed a crime (i.e., participating in the theft of the backhoe) that caused his son's death, they were not entitled to worker's compensation immunity as set forth in section 440.11(1), Florida Statutes (1991). pertinent part that: The same immunity provisions enjoyed by an employer shall also apply to any . . . supervisor, or other person who in the course and scope of his duties acts in a managerial or policymaking capacity and the conduct which caused the alleged injury arose within the course and scope of said managerial or policymaking duties and was not a violation of law, whether or not a violation was charged, for which the maximum penalty which may be imposed exceeds 60 days imprisonment as set forth in s. 775.082. (emphasis added). Both parties moved for summary judgment. Ritz and Barcinas This statute provides in

moved on grounds that the entire action was barred by worker's compensation immunity, asserting that the theft of the backhoe was not the legal cause of the decedent's death and, therefore, the criminal acts exception was not applicable. denied. This motion was

Byers moved for partial summary judgment on the issue that

the Ritz and Barcinas' taking and continued use of the backhoe constituted a violation of law, namely, grand theft, for which the 4

maximum penalty exceeds sixty days. matter of law, the appellees

1

Byers claimed that, as a not entitled to worker's

were

compensation immunity.

This motion was granted. The jury returned a defense

The case proceeded to trial.

verdict concluding that neither Ritz nor Barcinas were guilty of theft of the backhoe. evidentiary and Byers appealed and claimed that a number of irregularities occurred during the

procedural

trial, requiring reversal.

Ritz and Barcinas cross-appealed on

several issues, including the denial of their motion for summary judgment on the worker's compensation issue. This court affirmed See Byers Ritz and

that denial but reversed and remanded on other grounds. v. Ritz, 859 So. 2d 1282, 1285-86 (Fla. 3d DCA 2003).

Barcinas moved for rehearing and rehearing en banc, which we now grant. III. Law

Under Florida's Worker's Compensation Act ("the Act"), an employer who secures worker's compensation coverage for his

employees receives extensive immunity from suit by injured workers. Immunity is lost, however, if the employer engages in an

intentional act designed to cause, or substantially certain to Section 812.014, Florida Statutes (1991) provides that a person commits a theft if he knowingly obtains or uses . . . the property of another with intent to, either temporarily or permanently: (a) Deprive the other person of a right to the property or a benefit therefrom; [or] (b) Appropriate the property to his own use or to the use of any person not entitled thereto. 5
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cause, injury or death to an employee. 537, 540-41 (Fla. 1993).

Eller v. Shova, 630 So. 2d

This immunity also applies to managerial

or policymaking employees unless their actions amount to culpable negligence, id. at 541, which is defined as "`reckless Id.

indifference' or `grossly careless disregard' of human life". at 541 n.3.

This broad immunity fits in with the overall purpose

of the Act to provide employees with compensation for on-the-job injuries, regardless of fault, in exchange for giving employers and managers immunity, with few exceptions, from civil suits. at 542. Florida courts have routinely interpreted the Act broadly to preserve immunity in the face of sometimes egregious acts by employers and managers as long as those acts fell short of See id.

intentional torts or culpable negligence.

See, e.g., Mekamy Oaks,

Inc. v. Snyder, 659 So. 2d 1290, 1291 (Fla. 5th DCA 1995) (holding that employer retained worker's compensation immunity where

supervisor removed safety switch from lawnmower, causing plaintiff to be thrown from mower and cut his foot); Emergency One, Inc. v. Keffer, 652 So. 2d 1233, 1235 (Fla. 1st DCA 1995) (finding that employer retained worker's compensation immunity where supervisor refused to obtain plastic brushes because of expense, and this refusal led to employee's being severely burned). Moreover,

managers who had passively exposed a worker to injury have been found to retain immunity even though the manager's conduct could otherwise be deemed culpable negligence. See Kennedy v. Moree, 650 So. 2d 1102, 1106 (Fla. 4th DCA 1995). Thus, the courts have 6

routinely found that a high degree of culpability is necessary to vitiate the Act's immunity. Id.

One of the few exemptions from this broad immunity is the "criminal acts" exception, where a managerial or policymaking employee loses immunity for conduct which causes injury to an employee and violates a law that has a maximum penalty exceeding 60 days imprisonment. In this case, assuming for the purposes of

summary judgment that the appellees did give permission to steal and use the backhoe, the issue is whether the theft was the legal cause of Byers' death. The appellant claims that the taking of the

backhoe caused Byers' injury because had the backhoe not been taken and used to move the trees, Byers would not have been injured.
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This, however, is merely a statement of "but for" cause, or causation-in-fact, which does not address the crucial question of whether the appellees' actions were the proximate or legal cause of Byers' death. Important policy considerations underlie
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the

distinction

between cause-in-fact and proximate cause.

As this court has said:

Indeed if this were the correct legal standard, it could be argued that, "but for" the occurrence of the hurricane the decedent would not have been killed, or "but for" the fact that the decedent went to work on the date of the accident, he would not have been killed. See Stahl v. Metropolitan Dade County, 438 So. 2d 14, 17 (Fla. 3d DCA 1983), wherein we stated: 7
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Florida courts . . . have for good reason been most reluctant to attach tort liability for results which, although caused-in-fact by the defendant's negligent act or omission, seem to the judicial mind highly unusual, extraordinary, bizarre, or, stated differently, seem beyond the scope of any fair assessment of the danger created by the defendant's negligence. Plainly, the courts here have found no proximate cause in such cases based solely on fairness and policy considerations, rather than actual causation grounds. Stahl v. Metropolitan Dade County, 438 So. 2d 14, 19 (Fla. 3d DCA 1983). To this end, the Florida Supreme Court has held that

proximate cause is concerned with whether and to what extent a defendant's conduct foreseeably and substantially caused the

plaintiff's injury. 502 (Fla. 1992).

McCain v. Fla. Power Corp., 593 So. 2d 500,

Most recently, in Florida Power & Light Co. v.

Goldberg, 856 So. 2d 1011 (Fla. 3d DCA 2003) (en banc), review granted, No. 03-1942 (Fla. March 11, 2004), we concluded that where an electrical utility company terminated the power to a traffic light and a fatal automobile accident ensued, any negligence on the part of the utility company regarding the traffic light could not be the legal or proximate cause of the collision because it was causally superseded, as a matter of law, by the actions of the drivers. Id. at 1034.

Similarly, the Fifth District applied this proximate cause the "proximate cause" element of a negligence action embraces, at the very least, a causation-in-fact test, that is, the defendant's negligence must be a cause-infact of the plaintiff's claimed injuries. . . . [T]here can be no liability for any tort unless it be shown that the defendant's act or omission was a cause-in-fact of the plaintiff's claimed injuries. To be sure, such a showing, without more, is insufficient to establish the "proximate cause" element of a negligence action, but it 8

principle to a criminal case in Todd v. State, 594 So. 2d 802 (Fla. 5th DCA 1992). There, the defendant stole $110 from the collection A member of the congregation who had a

plate at a church.

preexisting heart condition gave chase in his car, experienced cardiac dysrhythmia, lost control of his car, and collided with a tree at low speed. He died of cardiac arrest. Id. at 803. The state charged The Fifth District,

the defendant with manslaughter.

using a tort analysis, found that although the defendant's petty theft may have been a cause-in-fact of the heart attack, it was not the proximate or legal cause of his death. relied on a First District case, with Id. at 805. similar The court which

facts,

concluded that in a criminal case, "a closer relationship between the result effected and that intended or hazarded is required." Id. at 805 (quoting Penton v. State, 548 So. 2d 273, 275 (Fla. 1st DCA 1989)). In analyzing the nexus between the crime committed and

the result effected in Todd, the court found that: [a]lthough the petty theft did trigger a series of events that concluded in the death of [the victim] and was, in that sense, a Acause@ of the death, the petty theft did not encompass the kind of direct, foreseeable risk of physical harm that would support a conviction of manslaughter. The relationship between the unlawful act committed (petty theft) and the result effected (death by heart attack during pursuit in an automobile) does not meet the test of causation historically or currently required in Florida for conviction of manslaughter. Todd, 594 So. 2d at 806. Section 440.11 plainly states that supervisors will have the same immunity as an employer if the conduct which caused the is plainly a sine qua non ingredient thereof. 9

employee's injury: 1) arose within the course and scope of the supervisor's duties, and 2) was not a violation of law. Given the
4 legislature's intent to provide employers with broad immunity, and

the court's practices of preserving this immunity,5 the "cause" described in section 440.11 can mean nothing other than "proximate" or "legal" cause. IV. Conclusion In this case, although the theft of the backhoe triggered a series of events that ultimately resulted in Byers' death, the theft was not the "proximate cause" of death because it was causally superseded, as a matter of law, by the unintentional actions of Delgado, the backhoe's operator. 2d at 1034. See Goldberg, 856 So.

Thus, because the stolen status of the backhoe was not

the legal cause of Byers' death, the criminal acts exception is inapplicable and this entire action is barred by worker's

compensation immunity.6 For this reason, we affirm the final judgment finding the appellees not liable. See Chase v. Cowart, 102 So. 2d 147, 150

(Fla. 1958) (holding result in trial court must be affirmed if
4

See Eller v. Shova, 630 So. 2d 537, 541 (Fla. 1993).

See Mekamy Oaks, Inc. v. Snyder, 659 So. 2d 1290 (Fla. 5th DCA 1995) and the other worker's compensation cases cited and discussed above. Indeed, had the backhoe in this case been borrowed, rented or purchased from its owner at the time of the accident, there would be no question that this action is barred by worker's compensation immunity. Given the way the accident actually occurred, it makes no sense to conclude that the result should be different because of the legal status of the backhoe. 10
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right, even if right for wrong reason). Affirmed. SCHWARTZ, C.J., and COPE, LEVY, GERSTEN, FLETCHER, SHEVIN, and SHEPHERD, JJ. Concur.

Byers etc. v. Ritz et al. Case no. 3D01-3585

GODERICH, Judge (dissenting). I respectfully dissent. Contrary to the majority's en banc

opinion, I believe that the "criminal acts" exception,

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