(CN) - The family of a Florida construction worker who was killed by a 1-ton falling steel column cannot collect a $2.4 million judgment from his employer, a state appeals court ruled.
Victor Lizarraga worked as a foreman for Metal Bilt, a subcontractor on a warehouse expansion project. His company worked on the 33-foot-tall steel columns that would support the building.
The general contractor, R.L. Haines Construction, told the Metal Bilt employees to begin settling the steel columns after the epoxy had been drying for 44 hours, rather than the recommended 72 hours.
Lizarraga was tightening a wire attached to one of the columns when the column fell on him and killed him.
His wife, Eva Santamaria, and their two children sued R.L. Haines for wrongful death. The trial court agreed with them that the case fell within the intentional tort exception to workers' compensation immunity and awarded them $2.4 million.
Florida's Fifth District Court of Appeals reversed 2-1 on Sept. 19, saying the standard Santamaria had to meet was that her husband's injury was "virtually certain."
"Appellees were required to establish, among other elements, that as a result of the shortened epoxy cure time, the column was virtually certain to fall and injure the decedent," Associate Judge D.E. Silverman wrote for the majority. "This court must, therefore, review the facts and circumstances of this case to determine whether the evidence was sufficient to satisfy this 'extraordinarily high' standard."
For the majority, the evidence did not meet that standard.
"The record is devoid of evidence of prior similar accidents," Silverman said. "Moreover, the remaining three columns in the set - all of which were subject to the same shortened curing period - remained anchored to the base and standing upright."
Even if the column was virtually certain to fall, no expert said it was virtually certain to kill someone, the ruling notes.
Judge Jay Cohen wrote in dissent that R.L. Haines ignored the "red flag" of the movement of an anchor bolt on the set of columns and that the company falsely assured the employees of their safety.
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