Memorandum To Clients

During the dog days of summer, you may be inclined to offer a cold drink to a worker or a worker may have a beer without being offered. Either way, the significance of the drink may be substantial. Before you offer an alcoholic drink to a worker, you likely will want to confirm that all work is complete, particularly if the job requires dexterity.

Florida community associations which have employees will be interested in a recent Florida appellate court decision which held that an alcoholic drink may disqualify an employee from seeking compensation for injuries sustained while trimming trees. The court determined that a jury must decide whether a worker supplied with alcohol was at fault for his injuries when the worker fell from a tree.

The lawsuit, Pearce v. Deschesne, 31 Fla. L. Weekly D1862 (Fla. 4^th DCA, July 12, 2006), involved a landowner who hired a man to trim her trees. During the work, the landowner supplied the worker with at least six drinks, leading to the worker’s intoxication. The worker fell to the ground and suffered serious injury.

The worker sued the landowner for negligence. The landowner claimed the worker’s negligence caused his injuries. After the worker admitted he was intoxicated, the landowner moved for summary judgment, meaning that the landowner asserted that there were no factual disputes requiring a trial. Agreeing with the landowner, the trial court ruled the worker was at least 50 percent at fault and granted judgment to the landowner.

The appellate court reversed the trial court’s decision. The appellate court noted that a relatively new law, Section 768.36(2), Fla. Stat. (2003) provides:

In any civil action, a plaintiff may not recover any damages for loss or injury to his or her person or property if the trier of fact finds that, at the time the plaintiff was injured:

(a) The plaintiff was under the influence of any alcoholic beverage or drug to the extent that the plaintiff’s normal faculties were impaired or the plaintiff had a blood or breath alcohol level of 0.08 percent or higher; and

(b) As a result of the influence of such alcoholic beverage or drug the plaintiff was more than 50 percent at fault for his or her own harm. 

(Emphasis added). The court explained that usually the jury must determine whether the plaintiff was more than 50 percent at fault, not the judge.

Here, the appellate court noted the evidence did not clearly show that the intoxication of the worker was the sole cause of his injuries. The appellate court reversed the decision of the trial court so that the jury could decide how to apportion the fault.

Associations may receive complaints about workers drinking on the job. Associations may avoid liability when there is an injury if the association removes an intoxicated worker from the job site. Even if someone working for the association offers a drink to someone while they are working, the association may not be liable for injuries.

Often associations may ask companies that the association does business with to execute hold harmless and indemnification agreements. These agreements usually state that if an association is sued as a result of something the company does, the company will reimburse the association for losses the association sustains. It turns out that the these agreements may not provide the protection an association expects.

Recently, a Florida appellate court ruled that a subcontractor was entitled to immunity from claims because of application of workers’ compensation laws which bar an employee’s claim when the employee is covered by workers’ compensation insurance. In American Engineering & Development Corp. v. Sanchez, 31 Fla. L. Weekly D1881 (Fla. 3^rd DCA, July 12, 2006), Guillermo Izaguirre was employed by a help supply company. The company sent Izaguirre to a construction site where the subcontractor instructed and supervised Izaguirre. While working on the construction site, a grader ran over Izaguirre and crushed him to death.

Izaguirre’s Estate filed a wrongful death action against the subcontractor. The subcontractor moved for summary judgment, arguing that the subcontractor was entitled to immunity under workers’ compensation protection barring claims. Although the Estate agreed the subcontractor would normally be protected from claims under the workers’ compensation laws, the Estate argued that the subcontractor’s right to immunity was waived by a hold harmless and indemnification agreement signed by the help supply company. The trial court agreed and entered judgment in favor of the Estate.

The appellate court found that the subcontractor was entitled to immunity from claims under the workers’ compensation laws and reversed the decision of the trial court. The appellate court concluded there was nothing in the hold harmless agreement indicating the subcontractor waived its statutory right to immunity.

It is important for associations to recognize the potential liability when workers are within a community. It is imperative for associations to confirm the status of workers’ compensation coverage. Associations should also ensure that their contracts have proper language concerning workers’ compensation insurance and obtain from contractors and subcontractors proper documentation of coverage.

The firm’s offices will be closed Monday, September 4, 2006 in observance of Labor Day.

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As this memorandum is being sent for printing, Tropical Storm Ernesto is approaching South Florida. Recognizing that this will arrive after the storm passes, we hope that everyone has survived safe and sound.