South Florida Personal Injury Blog

Employer Status for Discrimination Case in Florida.
In April of 2001, the state District Court of Appeal for the Third District of Florida heard a case involving a wrongful discharge complaint against a nursing home and a management company. (See Martinolich v. golden Leaf Management, Inc., 786 So.2d. 613 (3rd DCA 2001)). In this case, the plaintiff brought a lawsuit against a nursing home and management company as joint employers. Id. At trial, the management company moved for a directed verdict asking to be let out of the case. Id. The trial court granted the motion. Id. At the end of the trial, the jury found the nursing home had wrongfully discharged Mr. Martinolich in retaliation. Id. On appeal, the appellate court reversed the issue of dismissing the management company holding that the trial court should not have done that. That the issue and question as to whether or not the management company was a “joint employer” for purposes of holding the management company liable was a question for the jury to decide and not the judge. Id.
“A trial court may direct a verdict only when the evidence and ll reasonable inferences fail to prove a plaintiff’s case. (cites omitted). In determining a motion for directed verdict, the evidence, and all reasonable inferences, there from, must be viewed in a light most favorable to the non-moving party. (cites omitted). Where evidence is conflicting, or will admit of different reasonable inferences, the issue should be submitted to the jury as a question of fact, and not passed upon by the judge as a matter of law.” (cites omitted). Id.
The appellate court stated that it had “three circumstance in which it is appropriate to aggregate multiple entities for the purposes of counting employees.” Id. It discussed the single employer, joint employer, and agency tests to determine if the separate but related entities should be aggregated for purposes of employment and labor statutes. Id. If the two ostensibly separate entities are ‘highly integrated with respect to ownership and operation’ it may be considered a single employer. Id. If the two entities contract with each other for the performance of some task and one retains sufficient control over the terms and conditions of employment of the other company’s employees, this may be considered a joint employer situation. Id. And finally if the “employer delegates sufficient control of some traditional rights over employees to a third party, we may treat the third party as an agent of the employer and aggregate the two when counting employees. This is the agency test. Id.
In the case at hand, the nursing home contracted with the management company for personnel and management services. Though the two companies are separate, they are owned by the same individual and have the same president. Id. The management company acts as the agent of the nursing home. It recruits and evaluates the staff, it establishes personnel policies, wage structures and staff schedules. It establishes bookkeeping and accounting procedures, and prepares the proposed annual budget. And finally, the agreement was signed by the same person for both companies. Id.
“In 1996, after consulting with the personnel officer at the management company, the nursing home administrator fired Mr. Martinolich.” Id. “The personnel officer concurred in the firing decision.” Id. And thus, the appellate court held that there did exist a jury question as to whether the management company should be treated and Mr. Martinolich’s employer, along with the nursing home. Id.
If you have been involved in a joint employer racial discrimination case that may involve more than one employer and you would like to find out the answers to your questions, please call and speak to joint employer racial discrimination lawyers Andrew S. Alitowski or William Ryan Moore at 888-ASK-ANDREW (275-2637). We are available 24 hours a day, 7 days a week.

If you are injured…Ask Andrew!!!

Employer Status for Sexual Harassment Case in Florida.
In 2001, the United States District Court Northern District of Florida heard a case involving a temporary help company that had supplied another company with a worker who later alleged sexual harassment and turned around and sued both companies. In Neal v. Manpower International, Inc. and Wayne-Dalton Corp., 2001 WL 1923127 (N.D.Fla.), Wayne-Dalton corporation is a company that manufactures garage doors. Id. Manpower is a temporary help company that pursuant to a contract provides temporary workers to Wayne-Dalton’s Pensacola, Florida location. Id. The facts are as follows.
As it relates to Wayne-Dalton, Manpower neither takes part in the management or operations of Wayne-Dalton. Id. Manpower has no authority or control over the Wayne-Dalton employees. Manpower does recruit and interview them, has an office at the Wayne-Dalton plant and provides the salaries. Id. Manpower does not unilaterally terminate an employee, rather it takes direction for terminations from Wayne-Dalton supervisors. Id. Manpower has a formal written policy prohibiting sexual harassment. Id. If Manpower receives a complaint of sexual harassment from a Wayne-Dalton employee, Manpower has its own internal investigation guidelines to follow. Id.
On June 22, 1999, Ms. Shneirdre Neal applied for a job with Manpower for the Wayne-Dalton facility. On the application she lied about a few things. If Manpower would have known of these lies, Manpower would have terminated her right away. Id. But, they did not find about them right away and she got the job. On June 24, 1999, she began working for Wayne-Dalton. Id. Ms. Neal was supervised in part by a Mr. Woodson who from day one sexually harassed her asking her if she had a boyfriend, that “she looked fine,” “to bend over,” “asking her what she was doing after work,” “asking her if she had a man,” and a few other things. Id.
On August 4, 1999, a confrontation occurred between Ms. Neal and a co-worker. Id. Then, later that day, Mr. Woodson called Ms. Neal into his office and told her she was doing a great job and to keep up the good work. Id. Then the next day Mr. Woodson singled out Ms. Neal for a minor incident that she claims he never did to anyone else. Id. On August 9, 1999, Ms. Neal went to talk to Manpower about Mr. Woodson. But, when she got there, Ms. Neal had found out that she had been fired by Wayne-Dalton. Id. She was told she was fired for poor performance. Id. She then told Manpower about the sexual harassment by Mr. Woodson. Id. A full investigation was conducted and Ms. Neal was asked to come in and discuss the matter. She never did and Manpower was informed that she had found other work. Id.
Ms. Neal then filed a complaint for sexual harassment and retaliation. Id. Manpower filed a motion for summary judgment arguing that it was not Ms. Neal’s employer within the meaning of the Florida Civil Rights Act. Id. The Appellate Court reviewed many cases which stood for the proposition that an employment agency is not plaintiff’s employer where it exercised no control over him as employee. Id. Ms. Neal tried to argue that under a borrowed servant doctrine or the joint employer doctrine, that Manpower was her employer. Id. But, the Appellate court did not agree for the following reasons. Id. Ms. Neal cited a 1997 case from North Carolina that did hold that a temporary staffing company could become an employer in certain circumstances. (cites omitted). Id. But, that the temporary service agency could only be held liable if there was a basis for holding the employer liable for the alleged harassment. Id. Holding “an employer is liable for sexual harassment created by a supervisor or other employee only if the employer knew or should have known of the illegal conduct and ailed to take prompt and remedial action. (cites omitted). Id.
Also, Ms. Neal argues that Manpower is liable under a ‘joint employer’ theory. Id. Again, under that theory, the court instructed that to be liable the “plaintiff must show that the defendant knew or should have known of the discriminatory conduct and that it failed to take those corrective measures within its control.” (cites omitted). Id. Ms. Neal tries to argue that Manpower should be held liable in that it was her employer and thus it did not need notice in that it was vicariously liable. Id. But, the Appellate Court did not agree. Id. The difference to the case at hand and the cases that Ms. Neal cited was that in both of those cases, the supervisors that did the harassing “were also employees of the same employer as the plaintiff and vicarious liability was assessed to the employers due to an agency relationship. (cites omitted). Id. In the case at hand, no such relationship exists. Id. Mr. Woodson was not an employee of Manpower. Id.
The Appellate Court for argument’s sake went on to determine that even if Manpower was considered Ms. Neal’s employer, the next question to answer was whether or not Manpower “took a tangible employment action against Ms. Neal.” Id. And the answer to this is no. Wayne-Dalton fired Ms. Neal, not Manpower.
Further, the Court went on to discuss that even if Manpower was considered her employer, it would still be granted summary judgment in that Ms. Neal admits that she never made Manpower aware of the sexual harassment. Id. And for the same reasons, the Court held that Manpower could not be sued for retaliation in that Ms. Neal could not establish all the elements that 1) she engaged in a protected activity, 2) her employer was aware of that activity, 3) an adverse employment action, and 4) a causal link. (cites omitted). Id.
Wayne-Dalton also filed a motion to dismiss. Id. The Appellate Court stated the guidelines Ms. Neal need to prove her case. That “1) she belongs to a protected group, 2) that she as been subject to unwelcome sexual harassment, such as sexual advances, request for sexual favors, and other conduct of a sexual nature, 3) that the harassment was based on her sex, 4) that the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatorily abusive working environment, and 5) a basis for holding the employer liable.” (cites omitted). Id. The court held that there was sufficient evidence on the record to maintain a cause of action for sexual harassment against Wayne-Dalton. Id. The actions by Mr. Woodson were severe and pervasive and all the other requirements were satisfied. Id.
Further, as to the retaliation claim, the Appellate Court held that Wayne-Dalton’s motion to dismiss was denied. In order to establish a prima facie case of retaliation Ms. Neal must prove “1) she engaged in statutorily protected activity, 2) her employer was aware of that activity, 3) she suffered an adverse employment action, and 4) the adverse action was causally related to the protected activity.” (cites omitted). Id. Though the Appellate Court did discuss the fact that Ms. Neal’s case in this matter was not the strongest of cases, Ms. Neal at this point of time had submitted enough evidence to defeat Wayne-Dalton’s motion and that the issue of retaliation should be submitted to a jury. Id.
If you have been involved in a joint employer sexual harassment case that may involve more than one employer and you would like to find out the answers to your questions, please call and speak to joint employer sexual harassment lawyers Andrew S. Alitowski or William Ryan Moore at 888-ASK-ANDREW (275-2637). We are available 24 hours a day, 7 days a week.

Case Update for Wrongful Death & Personal Injury Attorneys:

Under Florida law, at least under Florida law as predicted by the Eleventh Circuit Court of Appeals based precedent out of the Third District Court of Appeal, loss of consortium claim is derivative and abates upon injured spouse's or child's death. Bravo v. U.S., 532 F.3d 1154 (11th Cir. 2008).
Survival action alleging that hospital's negligence caused patient's death, and seeking damages for patient's physical and mental pain and suffering and loss of enjoyment of life, was barred by Wrongful Death Act provision stating that, when personal injury to decedent results in death, no action for personal injury survives. West's F.S.A. §§ 46.021, 768.20. Salfi v. Columbia/JFK Medical Center Ltd. Partnership, 942 So. 2d 417 (Fla. Dist. Ct. App. 4th Dist. 2006).
In a case where a suit was filed before a nursing home resident's death, all deprivation of nursing home and related health care facility rights, including those resulting in the death of a resident but not exclusive of those, should survive the death of the nursing home resident. West's F.S.A. § 400.001 (Repealed). Estate of Youngblood v. Halifax Convalescent Center, Ltd., 874 So. 2d 596 (Fla. Dist. Ct. App. 5th Dist. 2004), reh'g denied, (June 10, 2004).
Guardian's action against nursing home alleging negligent treatment and care of her mother that had been brought before mother's death, survived her mother's death, although claims of deprivation of mother's rights did not cause or contribute to mother's death. West's F.S.A. § 400.023. Estate of Youngblood v. Halifax Convalescent Center, Ltd., 874 So. 2d 596 (Fla. Dist. Ct. App. 5th Dist. 2004), reh'g denied, (June 10, 2004).

Florida Negligence Law: Lakes & Swimming Pools

Injury lawyers often state that a property owner is not liable for dangerous conditions that occur in natural or artificial bodies of water, except where there is an unusual condition not typically present in a similar body of water, or the condition constitutes a trap, or the landowner performs a willful or wanton negligent act that causes the injury. Accordingly, owners of artificial lakes, fish ponds, mill ponds, gin ponds, and other pools, streams, and bodies of water are not guilty of actionable negligence on account of drowning therein unless they are constructed so as to constitute a trap or raft or unless there is some unusual element of danger lurking about them not existent in ponds generally.
Thus, a minor deviation in the depth of a lake does not constitute a dangerous condition where lakes typically change depth by reason of the amount of rainfall, nor does the presence of plant life and debris constitute an unusual condition sufficient to impose liability on the property owner. A deep-water drop-off in a lake may or may not constitute a concealed danger so as to impose liability on the property owner in a drowning case. Further, neither an allegedly steep and precipitous drop-off at the border of a canal, nor an allegation that the area is dark at night and the canal scarcely visible, transform an ordinary body of water into a trap or hidden danger.
Caution: Although the fact that water is shallow, and insufficient for diving, may not ordinarily render it a dangerous condition, it may be a dangerous condition where a person would not be aware of the shallow depth.
An owner of a body of water, natural or artificial, is not required to fence it or post guards or erect signs in areas that are not designated for swimming.
Swimming Pool Injury Lawyer Observation: A governmental entity operating a public swimming area will have the same operational-level duty to invitees as a private landowner, that is, the duty to keep the premises in a reasonably safe condition and to warn the public of any dangerous conditions of which it knows or should have known. The test for whether the governmental entity owes such an operational-level duty to safely operate the public swimming area is not whether the body of water has been formally designated as a public swimming area. Rather, the test is whether, under all the circumstances, the actions of the government entity has held the area out to the public as a swimming area or has led the public to believe the area was designated a swimming area.
The sponsor of a water skiing competition can be held liable for injuries sustained by a participating water skier, pursuant to the statute governing vessel safety during marine events, even though the competition is held in a non-navigable man-made lake.

If you have additional questions about a swimming accident resulting in injury of death, contact a negligence attorney at your convenience.

For information regarding private pool fencing criteria to prevent drowning, please review Saftey Barrier Guidelines CPSC (pdf).

Injury attorney Andrew Alitowski recently authored an article about an insurance issue that involves a swimming pool accident. In May of 2008, the Nautica Isles West Homeowners Association and GRS Management Associates were sued in Palm Beach County state court regarding a swimming pool accident. The allegations of the law suit are that the plaintiff was exposed to dangerous, hazardous, and unsafe sanitary conditions while in the defendant’s swimming pool. (See First Specialty Insurance Corporation v. GRS Management Associates, Inc., et. al., 2009 WL 2524613 (S.D.Fla.)). The plaintiff claimed that he contracted a viral infection from contaminants within the water of the swimming pool. Id. An expert toxicologist’s report submitted by the plaintiff stated that plaintiff contracted the Coscackie virus as a result of ingesting swimming pool water from the defendant’s swimming pool. Id.
There was a primary insurance policy that had a bodily injury coverage in the amount of 1 million dollars. Id. But, it had an exclusi9on section that stated in part the insurance did not apply to pollution and that a pollutant meant “any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste…” Id. There was also an excess policy for 2 million dollars. Id. This policy too had the same exclusion language. And there was a general liability policy that also had a similar exclusion policy. Id.
The insurance companies that had these policy exclusions filed motions for summary judgment to get out of the case. Id. They both claimed that they had no duty to defend or indemnify as per the insurance policies. Id. The state court looked at the complaint and saw that it alleged that the plaintiff got sick from ingesting ‘contaminants’ within the water of the swimming pool. Id. The court then looked at the insurance policies and saw that they both had exclusion provisions for ‘contaminants.’ Id. “As defined under the plain language of the policy, the meaning of the term pollutant includes contaminant. Furthermore, cases from this jurisdiction have ruled that similar pollutant clauses encompass “contaminants” and microbes.” Id.
Accordingly, the court granted the summary judgment motions and dismissed the cases with regard to the insurance policy coverage regarding the swimming pool accident.

For information on how to secure your swimming pool safely visit The U.S. Consumer Product Safety Commission

If you have been involved in a swimming pool personal injury case that you would like to find out the answers to, please call and speak to swimming pool personal injury attorney Andrew S. Alitowski or William Ryan Moore at 888-ASK-ANDREW (275-2637). We are available 24 hours a day, 7 days a week.
If you are injured…Ask Andrew!!!