40 Fla. L. Weekly D541c
Inherently Dangerous Activity
a party who “employs an independent contractor to do work involving a special danger to others which the employer knows . . . to be inherent in or normal to the work . . . is subject to liability for physical harm caused to such others by the contractor’s failure to take reasonable precautions against such danger.” Restatement (Second) of Torts § 427 (1965). An activity is inherently dangerous if the “danger inheres in the performance of the work,” such that “in the ordinary course of events its performance would probably, and not merely possibly, cause injury if proper precautions were not taken.”
One who employs an independent contractor to do work which the employer should recognize as likely to create during its progress a peculiar risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the failure of the contractor to exercise reasonable care to take such precautions, even though the employer has provided for such precautions in the contract or otherwise.
This Court has repeatedly emphasized that the twin purposes of punitive damages — punishment of the offender and deterrence of others who might otherwise act similarly, Mercury Motors Express, Inc. v. Smith, 393 So. 2d 545 (Fla. 1981); Lassitter v. International Union of Operating Engineers, 349 So. 2d 622 (Fla. 1976), are only served when the defendant’s behavior transcends the level of simple negligence, and even gross negligence, U.S. Concrete Pipe Co. v. Bould, 437 So. 2d 1061 (Fla. 1983), and enters the realm of wanton intentionality, exaggerated recklessness, or such an extreme degree of negligence as to parallel an intentional and reprehensible act. This Court has repeatedly striven to mark the line at which point behavior becomes sufficiently culpable to merit societal sanction through the punishing imposition of such damages. We once again point to the line drawn in our opinion of White Construction, in which we noted that “the character of negligence necessary to sustain a conviction for manslaughter is the same as that required to sustain a recovery for punitive damages.” 455 So. 2d at 1028, quoting Carraway v. Revell, 116 So. 2d 16, 20 (Fla. 1959).
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We therefore reiterate our observations in White urging restraint upon the courts in ensuring that the defendant’s behavior represents more than even gross negligence prior to allowing the imposition of punitive damages, in order to ensure that the damages serve their proper function. While we remain hesitant to have trial courts routinely remove the question from the jury’s consideration, we note that a directed verdict may properly be granted unless the evidence establishes that the behavior in question involves the following type of misconduct:
The character of negligence necessary to sustain an award of punitive damages must be of a “gross and flagrant character, evincing reckless disregard of human life, or of the safety of persons exposed to its dangerous effects, or there is that entire want of care which would raise the presumption of a conscious indifference to consequences, or which shows wantonness or recklessness, or a grossly careless disregard of the safety and welfare of the public, or that reckless indifference to the rights of others which is equivalent to an intentional violation of them.”
455 So. 2d at 1029, quoting Carraway, 116 So. 2d at 20 n.12.
1By the time of trial, all of the defendants other than Myers had either settled with the Estate or been dismissed from the case.
2Because of the partial summary judgment in favor of the Estate on Myers’ contributory negligence defenses, the jury was not asked to determine the fault, if any, of Myers’ subcontractors.
3Section 768.73(1)(a) limits an award of punitive damages to the greater of three times the amount of compensatory damages awarded to each claimant or $500,000. While Myers argued in this appeal that the trial court erred by applying this statutory limit to the total amount of compensatory damages awarded rather than to Myers’ proportionate share of those damages, we need not reach that argument in light of our disposition of the punitive damages award.
4In addition to the punitive damages issue discussed in footnote 3 above, Myers also argued that the trial court erred by denying its motion seeking a set-off against its damages award for the amounts paid to the Estate by Myers’ subcontractors. Because we are remanding for a new trial at which the jury will be tasked with determining whether Myers’ activities were inherently dangerous, this issue may be rendered moot by the new verdict. Hence, we do not address this issue in this appeal.
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