CLARK v. BETTER CONST. CO., INC., 420 So.2d 929 (Fla.App. 3 Dist. 1982)

No. 81-1378.District Court of Appeal of Florida, Third District.
October 26, 1982.

Appeal from the Supreme Court, Dade County, Jon I. Gordon, J.

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Highsmith Strauss and Philip Glatzer, Miami, for appellant.

Magill, Reid, Kuvin Lewis and Fred Lewis, Talburt, Kubicki
Bradley and Betsy E. Hartley and Jon Derrevere, Miami, for appellees.

Before NESBITT, BASKIN and DANIEL S. PEARSON, JJ.

BASKIN, Judge.

Better Construction Company, a general contractor engaged to renovate a house, hired subcontractor Nelson’s Crane Service to install steel beams. Clark, an employee of Nelson’s Crane, was electrocuted when a cable used to hoist beams came into contact with overhead electrical wires. At the time, Clark and appellee Downey were engaged in lifting and placing the steel beams. After his death, Clark’s wife brought an action against Better Construction Company, Inc., its Vice President Ortega, and crane operator Downey, among others, despite the fact that Clark received workmen’s compensation. At the close of plaintiff’s case, the trial court directed a verdict and entered final judgment in favor of appellees. This appeal ensued.

In reviewing a directed verdict, the test we apply is “whether it appears as a matter of law that no proper view of the evidence could possibly sustain the position of the party against whom the verdict is sought to be directed.” Cook v. Mills, 374 So.2d 599, 601 (Fla. 3d DCA 1979). Holding that appellees are immune from liability as a matter of law, we affirm the trial court’s decision.

Workmen’s compensation statutes provide employers immunity from liability for negligent conduct. § 440.10, Fla. Stat. (1975);[1] § 440.11, Fla. Stat. (1975).[2] The

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degree of the negligence is irrelevant to the question of liability. Under chapter 440, the general contractor becomes the statutory employer of employees of its subcontractor and is required to furnish workmen’s compensation for all employees. In return, the contractor is afforded immunity from liability. Thus, in exchange for enabling injured workers to receive compensation without fault, employers receive immunity from suit. Th Workmen’s Compensation Cases, 243 U.S. 188, 37 S.Ct. 247, 61 L.Ed. 667 (1917); Motchkavitz v. L.C. Boggs Industries, Inc., 407 So.2d 910 (Fla. 1981); Jones v. Florida Power Corp., 72 So.2d 285 (Fla. 1954). Workmen’s compensation statutes provide injured workers an exclusive remedy. The trial court correctly directed a verdict in favor of Better Construction Company.

Although, in Chase v. Tenbroeck, 399 So.2d 57 (Fla. 3d DCA 1981), we discussed guidelines for determining the relationship between different subcontractors of a general contractor, we do not apply those guidelines to these proceedings because we are not here concerned with employees of different subcontractors. Consequently, no need exists for a decision concerning the extent of control exercised by the employer as would be necessary under the Chase analysis.

Turning to the action filed against Charles Downey, we examine the allegations of negligence contained in the complaint. A supervisor[3] enjoys the immunity afforded his employer unless he engages in conduct which, by direct involvement on his part, constitutes an affirmative act of negligence “going beyond the scope of his employer’s non-delegable duty.” Zurich Insurance Co. v. Scofi, 366 So.2d 1193 (Fla. 2d DCA), cert. denied, 378 So.2d 348 (Fla. 1979). Since failure to provide a safe place to work has been ruled a corporate employer’s obligation subject to protection from lawsuits, Kruse v. Schieve, 61 Wis.2d 421, 213 N.W.2d 64 (1973); see West v. Jessop, 339 So.2d 1136 (Fla. 2d DCA 1976), a supervisor owes a duty to provide a safe work place, not to the employee, but to the employer. Kruse v. Schieve. The supervisor is personally liable only if he “increases the risk of injury to the employee.” Lupovici v. Hunzinger Construction Co., 79 Wis.2d 491, 255 N.W.2d 590 (1977).

The complaint against Downey alleges:

30. The Defendant, CHARLES L. DOWNEY, was negligent and careless in the following respects:
(a). In negligently and carelessly operating the aforesaid crane in such a manner as to allow said crane or its component parts to come in contact with the aforesaid high-tension electrical wires;
(b). In negligently and carelessly failing to warn the deceased, DELVERT WAYNE CLARK, that said crane or its component parts then and there being operated by Defendant, CHARLES L. DOWNEY, was about to come in contact with the aforesaid high-tension electrical wires.

That Downey engaged in independent acts of negligence and breached a duty owed to an employee so as to establish liability on his part, Dessert v. Electric Mutual Liability Insurance Co., 392 So.2d 340 (Fla. 5th DCA 1981), cannot be concluded from the record before us. The only witness called by the plaintiff concerning Downey’s alleged negligence was Downey himself.[4]
He testified that the crane had been stopped before the accident. Clark stumbled

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over scrap lumber while rotating a beam. Attempting to break his fall, Clark took hold of the beam and sustained a fatal injury when a cable holding the beam came into contract with overhead power lines. Downey testified that he had instructed Clark: “Look up, we got power lines.” Because the evidence failed to support the allegations contained in the complaint,[5] the trial court correctly directed the verdict in favor of appellee Downey.

For these reasons, we affirm the judgment.