A forklift operator is seriously injured after his employer, despite explicit warnings that running the forklift without its safety interlock was virtually certain to injure the operator, disabled the interlock and hid that from him; the danger was not apparent. Can the employee sue the employer in civil court despite Florida's WC exclusive remedy?

Why this is the answer

Under §440.11, workers' compensation is the exclusive remedy for an employee's workplace injury: the employee cannot sue the employer in civil court for negligence, however severe. The statute keeps a narrow intentional tort exception that the employee must prove by clear and convincing evidence: either the employer deliberately intended to injure the employee, or the employer engaged in conduct it knew, based on prior similar accidents or explicit warnings specifically identifying a known danger, was virtually certain to result in injury or death, the employee was not aware of the risk because the danger was not apparent, and the employer deliberately concealed or misrepresented the danger (§440.11(1)(b)). The forklift facts meet the second test. The exception does not turn on whether a supervisor rather than an owner acted, and no rule requires exhausting WC administrative appeals before an intentional tort suit. Knowing that injury is merely 'substantially certain', the older court-made test, is no longer enough on its own.