Walt Disney World and SeaWorld are both facing wrongful death claims through the workers’ compensation system. In both cases, regulators cited the companies for serious worker safety violations that resulted in the workers’ deaths. But neither company is likely to end up paying a dime to the families of those workers.

This was the conclusion of a recent article in the Orlando Sun Sentinel. Why? Florida law provides employers with “near-ironclad protection from lawsuits sparked by on-the-job injuries and fatalities,” according to legal experts.

In a premises liability case for a non-worker injured at an amusement park, for example, the plaintiff has to prove the park was negligent. An injured worker has to prove much more: a company’s knowing concealment of a risk virtually certain to lead to injury or death.

In Order to Get Workers’ Compensation, Employee Has to Prove the Serious, Knowing Conduct by Employer
Walt Disney World is being sued by the mother of a monorail driver who was killed in a train collision in July of 2009. After that accident and several others involving the monorails, federal investigators cited Disney with a “serious” safety violation and noted multiple enforcement lapses in their stated monorail policies.

SeaWorld Orlando faces a potential claim from the husband of Dawn Brancheau, the SeaWorld killer-whale trainer who drowned in February. Regulators had already charged SeaWorld with “willful” safety violations and had recommended that trainers never be allowed unprotected contact with the killer whale that killed her.

However, even if the plaintiffs can prove that the parks knew they were engaging in conduct that was likely to get a worker hurt or killed, the plaintiffs aren’t likely to win their cases. That’s because, in Florida, the standard of proof required in a workers’ compensation case is much higher than in other cases.
Why Is the Law So Strict in Worker Injury and Wrongful Death Cases?

According to the Sun Sentinel, the law was changed under the Jeb Bush administration in 2003 after heavy lobbying by the business community. The change in the law “dramatically re-strengthened businesses’ lawsuit shield.”

The change was made after a 2000 Florida Supreme Court holding that injured workers could prevail if they could prove that a company knew or should have known that its actions were likely to lead to workers’ injuries or wrongful death.
The business community was outraged. One of Florida’s largest business trade groups, Associated Industries of Florida, charged that “the language the Supreme Court had put out could really and significantly erode the protections from tort liability that the employers are paying workers’ comp coverage to have.”

In a 182-page rewrite of Florida’s workers’ comp laws, lawmakers changed the rule from “knew or should have known” to essentially “knew or was virtually certain” that its conduct would lead to injury or death. Furthermore, employees now have to prove that the risk was not apparent and the employer deliberately concealed that risk.
Finally, the employee would have to prove those claims by “clear and convincing evidence,” which is a tougher standard than the “preponderance of the evidence” standard used in virtually all other civil lawsuits, such as premises liability and tourist accidentclaims.

Sarasota workers’ comp lawyer Matthew Noyes of Perenich, Caulfield, Avril & Noyes calls that standard “nearly impossible” to meet and “a horrible burden on the injured worker.”
“The practical effect,” he points out, “is that employers don’t feel the pressure to make their workplace as safe as possible for their workers.”

Source:
“Disney, SeaWorld accident lawsuits face tough odds” (Orlando Sun Sentinel, September 13, 2010)