Amanda Brennan, Esq. and Kory Watson, Esq. (St. Petersburg, FL) (Negligence) obtained an order granting Final Summary Judgment on behalf of Defendant Mauricio Cabada in an action for gross negligence. The cause of action arose from a golf cart accident that occurred on May 22, 2019, when Defendant Cabada reversed a golf cart and struck Nicholas Berger in the leg while both were in the course of employment with Ritchie Brothers Auctioneers.
Prior to initiating this lawsuit against Defendant Ritchie Brothers Auctioneers and Defendant Cabada, Plaintiff accepted workers’ compensation benefits for his injuries. Under Florida’s workers’ compensation statute, workers’ compensation benefits are the only means of recovery against a co-employee unless the co-employee acted with willful and wanton disregard or unprovoked physical aggression or with gross negligence.
In his complaint, Plaintiff alleged that Defendant Cabada acted with gross negligence when he violently struck Plaintiff with the golf cart after he abruptly reversed the cart without first checking his surroundings and determining whether Plaintiff was clear of the rear of the cart. The only evidence in the record were deposition transcripts of Plaintiff and Defendant Cabada. It is undisputed that Defendant Cabada was driving Plaintiff to an auction lot at the time of the accident and that Plaintiff was seated behind Defendant Cabada facing the rear of the cart. Plaintiff testified only that when he arrived at his destination, the cart stopped, and he hopped off. Defendant Cabada testified that as soon as he stopped the cart, another passenger began screaming because a truck was reversing towards the golf cart. Defendant Cabada looked behind the cart, thought he saw Plaintiff in the cart, told the passengers to remain seated, and then put the cart in reverse. The cart did not have rearview mirrors, but it did have a loud reverse alarm to alert anyone within the cart’s path. Notwithstanding the allegations in his Complaint, Plaintiff’s testimony was silent as to Defendant Cabada’s actions leading to the accident.
To establish gross negligence, a plaintiff must show (1) a composite of circumstances, which together, constitute an imminent or clear and present danger amounting to more than a normal and usual peril, (2) an awareness of such danger, and (3) a conscious, voluntary act or omission that occurs in a manner evincing a conscious disregard of consequences.
In the Motion for Final Summary Judgment, we argued that the record lacked any evidence of gross negligence. To the contrary, Defendant’s undisputed testimony established that he acted with due care under the circumstances. The Honorable Dana Moore Tenth Judicial Circuit Court in and for Polk County agreed. According to Judge Moore, no reasonable jury could find that Defendant Cabada was grossly negligent.