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Byers v. Ritz11/26/2003
The plaintiff, John M. Byers etc. [the Estate], appeals from a final judgment in favor of the defendants, David Ritz and Paul Barcinas, in a wrongful death action. The defendants cross-appeal, in part, from the denial of their motion for summary judgment on the issue of worker's compensation immunity. We reverse and remand for a new trial consistent with this opinion.
John M. Byers, Jr. [Officer Byers] died as a result of an accident that occurred on Ocean Reef the day after Hurricane Andrew. The accident occurred when a backhoe, which was taken without permission, was being used to push a tree. The Estate filed a wrongful death action against Officer Byers' supervisors, Ritz and Barcinas, based on the "criminal acts" exception to worker 's compensation immunity. ยง 440.11(1), Fla. Stat. (1991). Following discovery, the trial court granted partial summary judgment in favor of the Estate finding that "the use and taking of the backhoe constituted a violation of law for which the maximum penalty exceeds sixty days." The trial court, however, did not make any findings as to who committed the theft. The defendants defended the action, in part, by claiming that there was no theft of the backhoe because its taking was justified by the emergency present at the time.
At trial, the evidence showed that Ritz was the community administrator of the Ocean Reef Community Association [ORCA]. Two of ORCA's departments were the Ocean Reef Public Safety Department and the Ocean Reef Volunteer Fire Department [collectively referred to as Departments]. Barcinas was the captain of the Departments, and Byers was an officer of the Departments. The day after Hurricane Andrew, Officer Byers and his co-workers were manually clearing debris and trees. Officer Delgado, one of Officer Byers' co-workers, saw a backhoe that was owned by a construction company at a local gas station. Officer Delgado testified that he went back to the command center to share this information with Ritz, Barcinas, and others. The consensus of the group, including Ritz and Barcinas, was that using this backhoe was a good idea. Officer Delgado then went back to the gas station and hot-wired the backhoe without attempting to contact the owner because there was no phone service. Officer Delgado used the backhoe to clear debris at the Public Safety Building. Several of Officer Byers' co-workers testified that Ritz and Barcinas either gave instruction to Officer Delgado regarding the use of the backhoe or saw Delgado operate the backhoe. Later that day, as instructed, Officers Delgado and Byers went to Sunset Cay to remove a large tree that had fallen across the road. While they were removing the tree, the fatal accident occurred.
At trial, Ritz testified that he did not remember one way or the other whether he had talked to Delgado regarding the backhoe. Barcinas, however, testified that he did not authorize the use of the backhoe.
The Estate requested that the jury be given the following jury instruction on theft which is derived directly from the Florida Standard Jury Instructions (Criminal):
A theft is committed when a person knowingly obtains or uses the property of another with the intent to either temporarily or permanently appropriate the property to his own use or to the use of any person or entity not entitled to it. "Obtains or uses" means any manner of taking or exercising control over the property or making any unauthorized use, disposition or transfer of the property.
The trial court, however, refused to give the last sentence of the instruction defining the term "obtains or uses." The trial court, over the Estate's objection, also instructed the jury on the defen
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