A construction worker injured by falling debris on the job can proceed with a gross negligence claim against the subcontractor whose employees where handling the material at the time of the accident, according to the U.S. District Court for the Southern District of Florida’s recent ruling in Blanco v. Capform.

Jose Blanco suffered permanent brain damage as the result of an accident at a downtown Miami construction site in October 2007. An employee of general contractor Pavarini Construction Company, Blanco was sweeping the ground near the 900 Biscayne Bay project when he was struck by a large piece of metal known as a “taper tie” that fell from the building’s fourteenth floor. Blanco was standing outside of the 24-foot area directly below the building that had been taped off, but the taper tie ricocheted off the thirteenth floor before reaching the ground.

Two employees of subcontractor Capform allegedly made a number of mistakes in removing the taper tie, including failing to “tie off” the taper tie – a procedure that likely would have prevented it from falling- using torches in violation of Pavarini policy, neglecting to use a safety net to prevent the tie from falling below the fourteenth floor and declining to block off the entire street below the project.

Blanco sued Capform, alleging that the company’s gross negligence caused his injuries and seeking damages for himself and his wife. The company then filed a motion for summary judgment, arguing that Blanco’s claim laid out a case for simple negligence, covered under state worker’s compensation law.

Florida’s Workers’ Compensation Act provides that a subcontractor is not liable to an employee of another subcontractor or the general contractor for injuries covered under the statute so long as the subcontractor has worker’s compensation insurance for its own employees and the injury was not caused by the subcontractor’s gross negligence. Thus, because Blanco was injured while working for Pavarini, his only means of recovery for the injuries is from Pavarini under the FWCA unless Capform committed gross negligence.

As the court explained, “gross negligence” is “an act or omission that a reasonable, prudent person would know is likely to result in injury to another.” Here, the court found that an issue of fact remained as to whether the Capform employees’ actions in removing the taper tie met this standard.

The parties presented competing evidence as to whether the workers should have known that the taper tie might fall outside of the taped off area on the ground below. Indeed, Blanco argued that there were at least 13 incidents of debris falling from the building and landing outside the zone prior to the accident. He also alleged that Capform employees removed certain devices meant to catch falling debris, failed to use a “spotter” on the ground to alert people to falling material and did not have the requisite training to use a blow torch in the procedure.

As a result, the court denied Capform’s motion for summary judgment.

If you or a loved one was recently injured in a construction accident and are interested in pursuing a claim, contact the South Florida personal injury attorneys at Anidjar & Levine today. Our lawyers represent clients throughout South Florida, including in Boca Raton, Hollywood and Pompano Beach.

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