Losing More Than Four Fingers

This week, Florida’s Third District Court of Appeal dismissed the case of Ernesto Vallejos, a forklift operator who was injured while working at Miami International Airport as an employee of Professional Aviation Management, Inc., which provided workers to load and unload cargo for Lan Cargo.

On the day of the accident, Mr. Vallejos was driving his forklift.  When he was asked by a Mr. Robaina—who worked for Infinity, another subcontractor and who was not Mr. Vallejos’s supervisor—to assist in the transfer of a small dumpster to a large dumpster by using a makeshift rope that would allow the operator to dump the hopper without having to exit the cab of the forklift. The contraption was designed by employees to be used when a dumpster needed to be moved by someone who did not have the security clearance to perform the task.

Forklifts are more dangerous than you think.

Forklifts are more dangerous than you think.

Mr. Vallejos then wrapped one end of the rope around his hand, but because the other end was dragging on the ground, it got tangled in the forklift, yanking Mr. Vallejos from the cab, injuring his shoulder and back, and amputating four fingers. Mr. Vallejos filed a worker’s compensation claim against his employer and received $267,729.84 after signing a broadly worded release.

Two years later, he sued Lan—who owned the hopper and failed to purchase the safety retaining chain, rope cleat, and instructions and warnings in Spanish—along with Infinity for gross negligence and intentional tort for their conduct in wrongfully modifying the hopper and failing to provide the adequate safeguards, instructions, and warnings to Mr. Vallejos when Mr. Robaina asked him to perform the task. He did not sue Mr. Robaina individually.

The Miami-Dade trial court dismissed the entire case on the basis that Mr. Vallejos failed to prove that the employer’s conduct rose to the level of gross negligence. And of course, the Third District Court of Appeal agreed, issuing another opinion in favor of big business at the expense of an injured victim. Leer este artículo en español.

Three Elements to Prove a Florida Employer’s Gross Negligence:

  1. An Imminent or clear and present danger.
  2.  Knowledge of the imminent danger.
  3. Acts that evidence a conscious disregard of the consequences.

Imminent Danger

 To prove an imminent danger, as a work accident lawyer Miami, FL, I know the employee must show that the conduct of the employer would “probably” or “most likely” result in an injury. The conduct in this case might possibly have caused an accident, but did not necessarily rise to “probably” since the method of pulling the makeshift rope to dump the hopper had been used several times a day for over five years without an incident.

Knowledge of the Imminent Danger

Mr. Vallejos presented no evidence that Infinity had knowledge of an imminent danger as it did not buy the hopper nor was it aware that additional safety features are available for purchase if a rope is added. And since the makeshift rope had been used for five years without a single incident, I know as a work accident lawyer Miami, FL, that history created a significant doubt that Infinity could have been aware that what Mr. Vallejos did had put him in any danger at all.

Act of Omission That Evinces a Conscious Disregard for the Consequences

Mr. Vallejos argued that Infinity should be responsible since Mr. Robaina never should have asked him to dump the hopper in the first place, especially without instruction. However, Mr. Vallejos’s own testimony showed that he was aware that part of the rope was dragging on the ground when he was driving the forklift.

Elements to Prove the Intentional Conduct of a Florida Employer

  1. The employer “knew” based upon prior similar accidents or warnings that a known danger was “virtually certain” to result in injury or death to the employee.
  2. The employee was not aware of the risk.
  3. The employer concealed or misrepresented the risk to the employee

In this case evidence produced showed that Lan knew and concealed the risk to Vallejos because there were safety parts and warning labels available for purchase that it was aware of but chose not to install on the hopper. Unfortunately, the Third District Court did not find this to be enough—holding instead that for a virtual certainty to exist, an injured worker must show that a given danger will result in an accident “every or almost every time.” Since there had been no other cases where this had happened, the court reasoned there was no evidence of a certainty of injury.

This case stands as a reminder to anyone who is injured while working in Florida. First, before signing any documents which may release your legal rights, you should consult with an experience, work injury lawyer Miami, FL. Often there are legal rights and additional money available beyond worker’s compensation benefits. Currently, our law firm is representing a Miami man who was seriously injured when he was hit by a car during renovations on Biscayne Boulevard.

We are passionate about protecting the rights of Florida’s workers who are injured on the job. If you have a potential case or claim, Email me, Spencer Aronfeld, work accident lawyer Miami, FL, or contact our South Florida personal injury lawyers at 305-441-0440 or Toll Free at 866-597-4529 for a free legal consultation.

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