These are not mutually exclusive options, but it is true that if your employer carried workers’ compensation and your injury occurred in the course and scope of employment, you can’t sue your employer. There are very rare exceptions, but generally, this is the rule. It’s referred to as exclusive remedy.
Where the waters begin to muddy is when questions arise regarding who is an employer and how do we define an employee. The answers to these questions are sometimes not so straightforward as they may seem. In the case of Slora v. Sun ‘N Fly-In, Inc., plaintiff was injured while working security at an air show. There was no doubt she was working at the time of her injury, and her employer was the security company. However, when she sought damages from the operation that organized the event – defendant in this case – defense asserted that it was a contractual employer, and thus entitled to immunity.
Although trial court agreed with defense and granted summary judgment, Florida’s 2nd District Court of Appeals reversed.
According to court records, defendant operates air shows for general public enjoyment. Because of the nature of operation, it is regulated by the Federal Aviation Administration (FAA). This agency has the authority to waive compliance with application and certification subject to appropriate conditions. Failure to comply with federal air safety regulations is illegal.
This particular air show in question was held in Lakeland at the local regional airport in March and April of 2011. For this show, the organization sought FAA waivers for allowing flights over congested areas, allowing aerobatic flight in certain airspace and for allowing planes to fly at lower than the otherwise minimum altitude. The FAA granted these requests, but it did require the air show to have adequate policing and security that would help with confining spectators to certain areas. In compliance with this requirement, the organization contracted with a security firm to provide security guards. Plaintiff worked for that security firm.
On one of the first days of the show, a horrible storm struck the area. Plaintiff was working inside a security “shack” when a tornado hit. The force of the storm resulted in the shack being lifted off the ground, overturned then thrown into a nearby ditch. This all happened while the security guard was still inside. She suffered personal injury.
She filed a workers’ compensation claim with her employer, the security company. She then filed a civil tort lawsuit against the organizers of the event, arguing the storm and the tornado was foreseeable and the organizer failed to make sure the shack was in reasonably safe condition and to warn of injury from bad weather.
Organizers filed an answer, asserting an affirmative defense of workers’ compensation immunity. Trial court in granting this motion found that a contractual relationship existed between the FAA and the organization which required the organizer to contract with plaintiff’s employer, the organizer was entitled to immunity.
However, appeals court disagreed. The waiver was not a contract, the appeals court ruled, but rather regulatory permits and/or licenses. These alone do not grant defendant immunity as a matter of law.
If you have questions about potential third-party liability lawsuits following a Florida work injury, contact our offices today.
If you have been injured in an accident, contact the Hollander Law Firm at (888) 751-7770 for a free and confidential consultation. There is no fee unless we win.
Slora v. Sun ‘N Fly-In, Inc., Aug. 26, 2015, Florida’s Second District Court of Appeal
More Blog Entries:
Cooper v. Takeda Pharmaceuticals – Actos Lawsuit Decided in Plaintiff’s Favor, Aug. 23, 2015, Boca Raton Work Injury Attorney Blog