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McClanahan v. State9/5/2003
e as if the issue had been properly raised, the employees suffered no harm from their failure to amend.
Finally, the employees dispute the circuit court's conclusion that the intentional tort exception did not apply to this case. In Turner, the Florida Supreme Court reaffirmed the existence of an intentional tort exception to workers' compensation immunity under which an employer may be held liable in tort if it has engaged in conduct that was intended to or substantially certain to result in an employee's injury or death. The court disavowed suggestions in earlier decisions that the "substantial certainty of injury" standard for avoiding workers' compensation immunity requires a showing that the employer's conduct created a "virtual certainty" of injury. See Turner, 754 So. 2d at 687 n.4; see also EAC USA, Inc. v. Kawa, 805 So. 2d 1 (Fla. 2d DCA 2001).
The Turner court also held that when applying the "substantial certainty of injury " standard, the employer's conduct must be evaluated under an objective test, as opposed to a subjective one. In other words, the plaintiff need not show that the employer actually knew that its conduct was substantially certain to cause an injury. Rather, the employer may be held liable if it "should have known . . . that the conduct complained of was `substantially certain to result in injury or death.' " Id. at 688-89. Therefore, " nder an objective test for the substantial certainty standard, an analysis of the circumstances in a case would be required to determine whether a reasonable person would understand that the employer's conduct was `substantially certain' to result in injury or death to the employee." Turner, 754 So. 2d at 688.
The Turner court observed that proving the intentional tort exception requires a showing that the employer engaged in conduct that is at least worse than "gross negligence." Turner, 754 So. 2d at 687 n.4. In this case we have carefully reviewed the evidence of record. Considered in the light most favorable to the employees, with all conflicts resolved and inferences drawn in their favor, the evidence could prove that the agencies were made aware of problems with the air quality in the building, that they did little to remedy the situation other than to clean and replace air conditioning filters, and that they were less than candid with the employees about the extent of the problems or the risks they posed. Thus, the evidence might support a conclusion that the agencies negligently exposed the employees to increased risk. But, we agree with the circuit court that, under all the circumstances of this case as reflected in the summary judgment record, the agencies' acts or omissions were not substantially certain to result in injury or death. See Turner, 754 So. 2d at 688.
Affirmed.
FULMER and CASANUEVA, JJ., Concur.
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