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Florida Employer Cited for Safety Violations After Death of Workers


A Florida employer is under fire from the federal government after three employees died from a gas leak, according to an article by Bloomberg BNA. On July 18, 2017, the Occupational Safety and Health Administration (OSHA) cited D.N. Higgins Inc. (DNH) for “serious safety violations” and proposed fines of approximately $120,000.

On January 16, 2017, DNH was performing work to underground utilities in Key Largo, Florida. After entering a manhole, Elway Gray stopped responding to his coworkers. In an effort to help Gray, colleagues Louis O’Keefe and Robert Wilson entered the manhole as well. But none of those men would escape alive, due to deadly levels of carbon monoxide and hydrogen sulfide.

“The hazards of working in manholes are well established, but there are ways to make it safe,” Area Director Condell Eastmond stated in an OSHA press release. “Three employees needlessly lost their lives and others were injured due to their employer’s failure to follow safe work practices.”

Among the OSHA citations were DNH’s alleged failure to:

  • Test for or detect hazardous conditions;
  • Eliminate hazardous conditions before allowing employees to begin work;
  • Provide proper training for workers; and
  • Supply monitoring equipment or emergency and rescue equipment.

As a result of this incident, Wilson’s family is contemplating a wrongful death lawsuit against DNH. But that course of action raises an important legal question concerning workers’ compensation.

Does Workers’ Compensation Prohibit Lawsuits Against Employers? 

Florida Statutes under Chapter 440 provide that the workers’ compensation system is exclusive and overrides any other liability. Essentially, this means that employees and employers are required to use the workers’ compensation system to deal with work-related injuries or deaths. 

That being said, Chapter 440 does outline an important exception to the exclusivity of workers’ compensation. Section 440.11(b) provides that employers are not immune from liability or lawsuits when an “employer commits an intentional tort that causes the injury or death of the employee.”

This intentional tort standard can apply if the “employer deliberately intended to injure the employee.” Alternatively the standard can apply if the employer acts in a way that is “virtually certain to result in injury or death to the employee.”

Overall, employers are not completely protected from lawsuits for work-related incidents. But the employee bears the burden of proof and must show that the employer committed an intentional tort.

Reach Out to Us for Help Today 

Whether you are an employee or employer, it can be a challenge to navigate the ins and outs of labor and employment law. With a convoluted web of federal, state and local regulations, it can be easy to get overwhelmed. That is where a knowledgeable employment attorney can have a positive impact, guiding you toward an effective and efficient resolution.

Operating out of Miami, Florida, Penichet Law is experienced in the practice of labor and employment law. If you need legal counsel related to labor or employment, please do not hesitate and contact us immediately.