The road to justice for workers injured in Florida is winding and littered with the carcasses of claims that have been unable to pierce a nearly bullet proof wall of legislation and case law. That wall has been erected to prevent people from getting compensated when they have been maimed, disabled, or killed while working.

My entire career has been dedicated to fighting for those who have been hurt by corporations that have put their own profits ahead of the safety of their customers or patients. Unfortunately, in most cases when an employee is injured at work, the legal means that protect them are different; and their claims are not adjudicated by the same kind of judge or jury as is anyone else who might be injured in the same way, but “off the clock.” The laws are completely different.



For example, if I slip and fall and break my leg at Home Depot because of grease that is left for an unreasonably long time in an aisle, I could, if I wanted to, sue Home Depot in Circuit Court in Miami Dade County and demand compensation for any time I might lose from work, all my medical bills, pain, suffering and even my wife’s loss of consortium and services as well. My case would be heard by a judge and a Miami jury, who would ultimately decide how much, if any at all, I would be entitled to.

However, if an employee of Home Depot were to slip and fall in the same aisle on the same grease and break her leg, she would have no right to sue Home Depot, no right to a judge, jury, or any money for her pain and suffering. Her rights would be limited to those solely available to her under Florida’s Workers Compensation Law Section 440, which has exclusive jurisdiction over claims made by those injured on the job.

The heightened standard of proof required to pierce the immunity of Section 440 has given more and more employers a false sense of security that they can freely place their desperate or ill- informed employees in high-risk situations without fear of being held legally liable for their injuries or death, beyond those remedies otherwise available under Worker’s Compensation.


There are exceptions to the exclusive rights when the conduct of the employers is so egregious and reckless that they are undeserving of the statutory immunity provided by Section 440.

And I have represented a number of injured employees in Florida, and I have at times alleged that the employer’s conduct was not just merely negligent but grossly negligent.

Proving that a Florida employer is guilty of conduct that is grossly negligent under Florida law is very difficult, and many lawyers who represent injured employees believe that it is almost impossible. However, I am pleased to report that I am now seeing an increasing trend in recent Florida appellate court opinions, finding more and more instances when employees are seriously injured because the employer has placed them in harm’s way.

For example, Florida’s 2nd Court of Appeal released its opinion in Patrick Pyrek v. Valleycrest Landscape Development, Inc., a Florida construction worker was catastrophically hurt when a palm tree fell on him when while he was at work, in this case installing an aluminum fence in a residential development in Fort Myers.


He sued his employer, ValleyCrest, outside of Worker’s Compensation by alleging that his boss’s conduct was grossly negligent and therefore the company should not be allowed to enjoy the protections afforded employers by Florida law. To successfully pierce that immunity, one must prove Gross Negligence by establishing the following:

1. A Clear and Present Danger

2. The Employer’s Awareness of the Danger

3. Acts by the Employer Likely to Result in Injury

To prove a “clear and present danger,” an employee must prove that the danger is created by a “composite of circumstances.” In this case, the record reflects that ValleyCrest had just planted multiple palm trees ranging from 18 to 30 feet in height a few days before the accident near where Mr. Pyjek and his crew were installing the fencing. A few hours before Mr. Pyjek began working, a newly planted 30-foot palm tree fell because of gusty winds, causing damage to the newly installed fence and equipment. ValleyCrest employees righted the fallen tree and replanted it. And the crew continued working.


In my opinion, as lawyer who has represented hundreds of employees who were hurt at work across Florida for over 22 years, ValleyCrest did not just place Mr. Pyjek in a vulnerable and dangerous situation; rather, they made it more than likely that he would be injured.

The facts are in dispute as to how the tree was re-planted, whether it was supported by stakes, and if it was planted in the same or a different hole. In addition, fences are installed by digging holes, than inserting a fence post anchored by concrete.

The records are unclear on whether the Mr. Pyjek’s fencing crew working near the newly re-planted palm tree, may have unknowingly loosened the soil around the recently re-planted tree. An expert witness testified that after the palm tree fell, it should have been more closely inspected and supported by stakes to ensure that it would not fall again. According to Mr. Pyjek’s complaint, no precautionary steps were taken by ValleyCrest. Not surprisingly, the trial court judge in Lee County Florida dismissed his case–on summary judgment–meaning Mr. Pyrek never even got to a the jury. He then appealed.

The appellate court reversed the trial court and reinstated his case,-primarily because the facts are in such dispute as to what if anything ValleyCrest did after knowing the palm tree had just fallen, yet sending Mr. Pyjek to work literally underneath it.

This is a significant case because it is sending a message to trial judges to control their knee- jerk reactions to seeing cases by injured employees against employers by automatically dismissing all cases without first clearly establishing whether or not the employer’s conduct was grossly negligent, and by giving an injured employee at least a chance to present his or her case to a jury. I wish Mr. Pyjek the best in his continued search for justice.

Our law firm is dedicated to protecting the legal rights of those injured at work by holding employers accountable for putting their employees in situations where they are likely to to be hurt or killed. We provide free legal consultations to anyone who has a potential worker’s compensation claim, or if you believe that you have been injured by being placed in a clear and present danger by your employer, please Email me, Spencer Aronfeld, or call our office 24 hours a day at 305-441-0440 or Toll Free: 1-866-597-4529.