IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT IN AND FOR PINELLAS COUNTY, FLORIDA Civil Division ESTATE OF GREG JANOWSKI, by and through his personal representative and surviving wife, Elizabeth Fanowski, CASE NO. DIVISION: Plaintiff, v. PUBLIX SUPER MARKETS, INC., Defendant, et COMPLAINT Plaintiff, the ESTATE OF GREG JANOWSKI, by and through his personal representative and surviving wife, Elizabeth Janowski, for the benefit of all survivors as defined in Florida Statutes § 768.16, et seq., hereby sues the Defendant, PUBLIX SUPER MARKETS, INC. and states: COMMON ALLEGATIONS 1. This is an action for damages in excess of $15,000. 2. Allevents material to this action occurred in Pinellas County, Florida, 3. Plaintiff in this matter is the ESTATE OF GREG JANOWSKI. The estate has been established in Hernando County Florida. Elizabeth Janowski, the surviving wife, has been appointed the personal representative. Pursuant to the provisions of FloridaStatutes § 768.20, the personal representative is charged with the responsibility of bringing this action for the benefit of the decedent's survivors and estate. Elizabeth Janowski is also a resident of Hemando County, Florida, 4. Decedent, GREG JANOWSKI (“GREG”) at all times material hereto was a resident of Hernando County, Florida. 5. Pursuant to Florida Statutes § 768.21, the potential beneficiaries of a recovery in this action and on whose behalf and for whose benefit this action is brought, include; A. The Estate of Greg Janowskis B. Elizabeth Janowski, surviving spouse of Greg Janowski; C. Savanna May Janowski, age 7, daughter of Greg Janowski; D, Jade Nicole Janowski, age 18, daughter of Greg Janowskis E, Austin Gregory Janowski, age 13, son of Greg Janowski; Nicholas John Janowski, age 16, son of Greg Janowski; and G. _Kalliope Singletary, mother of Greg Janowski. 6. Defendant, PUBLIX SUPER MARKETS, INC. (“PUBLIX”), a Florida for profit corporation, is a retail grocery chain with stores throughout the State of Florida and Pinellas County. PUBLIX is the owner and operator of the Publix Super Market located at 40932 U.S. Highway 19 North, Tarpon Springs, Florida (“Tarpon Springs store” or “Tarpon Springs Publix”). 7. Atall times material hereto up until March 30, 2010, GREG was employed by PUBLIX as a meat-cutter in the meat department at its Tarpon Springs store, 8. For two years prior to March 30, 2010, Arunya Rouch (“Arunya”) had been employed as a worker in the seafood department by PUBLIX at its Tarpon Springs store.9. Arunya’s employment was terminated by PUBLIX on March 30, 2010, 10. All conditions precedent and statutory prerequisites to the institution of this action wve been performed, have occurred or have been waived. GREG'S History at PUBLIX 11, GREG had been employed by PUBLIX at various stores and in various capacities since approximately 1998. His last job assignment was at the Tarpon Springs Publix as a meat-cutter. 12. GREG'S daties and responsibilities at the PUBLIX Tarpon Springs store included the cutting and packaging of meat for display, interaction with customers and handling customer orders at the meat department, servicing and maintenance of equipment, and maintenance and clean-up of the meat department. 13, Each day, prior to the start of his daily shift at the Tarpon Springs Publix, GREG would arrive at the store early and park in the parking lot adjacent to the store, which was utilized by PUBLIX customers and employees. Prior to entering the store and clocking in to begin work, GREG would spend time speaking to his wife, Elizabeth by phone and attending to various personal matters. Arunya’s History at PUBLIX 14, Arrunya had been employed by PUBLIX since May 2004, She had been born and raised in Thailand and had lived there most of her life until her mother brought her to the United States sometime in the late 1990's. She received U.! in February 2002 and had worked a variety of jobs, including some two years at a Winn-Dixiegrocery store, prior to being hired and starting work for PUBLIX. She had been employed at the Tarpon Springs store since 2008. Her last job assignment at the Tarpon Springs Publix was in the seafood department as a “Seafood Specialist.” Her duties included interaction with customers and handling customer's orders at the seafood counter, servicing and maintenance of equipment, and maintenance and clean-up of the seafood department. At most Publix stores, including its Tarpon Springs store, the meat department and the seafood department are connected to one another or adjacent to one another. Therefore, Arunya worked with and had contact with GREG on a daily basis. 15. Arunya's immediate supervisor was Ron Chmielorz, the Meat Department ‘Manager at the Tarpon Springs Publix. Her chain of command included Store Manager Mickey McPhee, District Manager Steve Fisher, and Regional Manager Jim Herring. 16. Arunya was known to management and supervisory personnel at PUBLIX as a dedicated employee whose willingness to work hard bordered on fanaticism. Arunya's performance on the job was of paramount importance to her. She had received numerous awards and commendations from PUBLIX for her service, including a five-year service certificate, a silver watch, a presentation gold coin and other gifts as rewards for her performance. In 2008, PUBLIX CEO Ed Crenshaw sent Arunya the gold coin after receiving a letter from a customer praising Arunya’s service. On March 24, 2010, Arunya was rewarded by having her picture taken with District Manager Steve Fisher, and Regional Manager Jim Herring during a special employee appreciation day. 17, Arunya was known to PUBLIX management as a worker who loved the store and its environment and loved her work at PUBLIX. She was regularly asked to assist with new store openings to help prepare the seafood department. Arunya frequently went towork early to start her day in advance of her normal work hours, and she was regularly asked by her immediate supervisor to come in early or late to work overtime in excess of her normal work hours. The PUBLIX Work Environment 18. At Publix stores in general and at the Tarpon Springs store in particular, most of the employees are paid on an hourly basis and are required to keep detailed time records by using a time card which is punched into a time clock that records the time that the employee has worked. 19. PUBLIX employe: are provided with rules and guidelines outlining what is expected of them in terms of conduct and the rules governing their employment. Said rules and guidelines purport to encompass every aspect of the employees’ duties at PUBLIX, including items such as their clothing and appearance, and also dictating the rules and procedures for recording their time worked. PUBLIX enforces its rules in part by foster! g and encouraging an environment in which employees inform on one another for various rules infractions or breaches of store or corporate policy including perceived violations of time-keeping and the recording of hours worked. 20. A basic understanding of PUBLIX’S work environment and the practices and policies that govern the operation of the Tarpon Springs store is necessary to understand the actions of GREG, Arunya and management of the Tarpon Springs Publix store and to put into context the motivations, actions and omissions of the involved persons and the events Ieading up to the death of GREG on March 30, 2010. Plaintiff therefore makes the following allegations in this contextUpon information and belief: A. Both departmental and individual employee goals are set by PUBLIX corporate and/or individual store management with the ultimate goals of maximizing store profitability and minimizing store and departmental expenses, such as overtime and work-related injuries; B. Employees are paid bonuses at certain times throughout the year for attaining such goals, Department managers, in particular, are paid bonuses based upon their department’s performance in meeting certain goals with a minimum of employee time and expense. Store managers benefit financially when individual departments within their respective stores meet their performance goals. As expected therefore, a primary goal of both department and store managers is to maximize profitability by keeping labor costs to a minimum. C. The majority of employees at any individual PUBLIX are hourly employees who are paid at a specified hourly rate based on a 40-hour workweek. The working of overtime, Sundays and holidays by PUBLIX hourly employees is paid at a premium over the normal hourly rate, D. Overtime pay is discouraged by PUBLIX corporate management, as if increases labor costs, thereby reducing net profits of the particular department. 40-hour workweek employees are not allowed to work more than their scheduled 40 hours per week without receiving permission from department and store managers. E, Time records for hourly employees are kept by a time clock or computerized data entry system, which records a time card whenever an employeestarts or fi shes a shift. The work schedule is uploaded into a computerized system in advance of each workweek. The system is set up such that an employee is prohibited from clocking in before the scheduled start of his or her shift. If an employee is asked or allowed to work overtime or to work at times outside their scheduled shift, managerial approval is necessary before the employee is allowed to clock in, F, When overtime pay is necessary, managers are authorized to override the system and clock the employee in so that the employee's overtime hours are properly recorded. Upon information and belief, both the individual department manager's and the store manager's approval are necessary before the time clock can be overridden and an employee allowed to clock in outside their regular shift. G. — PUBLIX managers and supervisors are provided with a special access card, known as a “slide card” which allows them to clock in the employee outside his or her regular shift. This practice, which is unwritten and not included in any the PUBLIX policy handhook, is commonly known at the Tarpon Springs store as “sliding someone in.” H. — If overtime is necessary, department managers typically select the employee that they feel will provide the most work during the least amount of ne, So as to minimize the overtime pay charged to that department, L Overtime pay charged to a particular department increases the costs chargeable to that department and decreases the profitability of that department, thereby having a negative impact on the bonus for which that department's manager and the supervisory managers at that store might be eligible.J The decision as to whether employee overtime is necessary or not is made by the individual department manager and is approved by the store manager. Upon information and belief, the store manager’s approval is needed for the authorization of overtime or for any deviation from the established work schedule by hourly employees; K. The decision as to which employee will be offered the opportunity to work overtime hours is made by the department manager, subject to approval by the store manager; L. Overtime work is prized by most hourly employees because of the premium pay, which affords the opportunity to make additional money over and above their normal paycheck. As such, conflicts can be created when there is a limited number of overtime hours available and multiple employees who want the opportunity to work overtime; M. At the Tarpon Springs Publix, the primary input into decisions about what overtime hours would be worked in the meat and seafood departments and who would work those hours were made by Ron Chmielorz and approved or authorized by store manager Mickey McPhee. 21. At the Tarpon Springs Publix, Arunya was a favored employee of meat/seafood department manager Ron Chmielorz. Prior to March 30, 2010, Ron Chmielorz would frequently ask Ananya ~ an hourly employee - to work overtime hours, to which she nearly always agreed. After receiving approval from Mickey McPhee, Chmielorz would then approve Arunya’s overtime hours by “sliding her in” with his special access time card.22. While it is a policy of PUBLIX to discourage overtime work by its hourly employees, the meat/seafood department at the Tarpon Springs Publix was short-handed, thereby affording opportunities for overtime hours that were usually given to Arunya by Ron Chmiclorz with the blessing of Mickey McPhee. Because of Arunya’s work ethic and love for her job, Chmielorz. and McPhee perceived her as being able to perform the most work in the least amount of recorded time. This allowed Chmielorz and store manager Mickey McPhee to reduce the official labor costs to PUBLIX and to increase profitability of the meat/seafood department and of the entire store, These reduced labor costs and increased profitability figures are used by corporate management as a primary factor to calculate bonuses to store and departmental management, 23, The favoritism shown to Arunya by department manager Ron Chmielorz was a likely cause of tension among the employees of the meat/seafood department at the ‘Tarpon Springs Publix. Store management routinely allowed Ananya to work overtime hours to the exclusion of other department employees who also wanted to eam extra money. Arunya was regularly allowed to work 10 ~ 15 hours of overtime each week as a result of Chmielorz “sliding her in.” 24, Upon information and belief, PUBLIX permitted the preferential treatment of Arunya and the selective authorization of overtime pay to her so long as management believed it could claim ignorance of the fact that one employee ~ Arunya, was being shown favored status and was allowed numerous overtime opportunities at the Tarpon Springs Publix prior to March 30, 2010. 25. Upon information and belief, other meat/seafood department employees at the Tarpon Springs Publix were not told of most of the overtime opportunities that wereoffered to Arunya and were not given an opportunity to participate in those overtime hours. Effect of the PUBLIX Work Environment on GREG and Arrunya 26. Upon information and belief, as a result of the foregoing policies, PUBLIX created a work environment at the Tarpon Springs store’s meat/seafood department in which employees who wanted or needed to work any available overtime hours were not allowed the opportunity to participate, since most available overtime hours were assigned by Ron Chmiclorz. and/or Mickey McPhee to Arunya. 27. Other employees, such as GREG, at the meat/seafood department were unaware that Ron Chmielorz had used his special access card to “slide” Arunya in to work overtime, since they were not offered the opportunity to participate in those overtime hours and they were not present when Chmielorz approved Arunya’s additional work time. Consequently, when Arunya was seen working during times that were not part of Arunya’s regular shift, other employees, including GREG, mistakenly thought Arunya was working ‘off-the-clock.’ Working ‘off-the-clock’ refers to a practice of working without being clocked in, usually for the purpose of creating good will with department and store managers. This practice of working ‘off-the-clock’ violates federal labor laws and is specifically prohibited by the corporate management of | PUBLIX. Notwithstanding the prohibition, the practice of working ‘off-the-clock” does occur and other employees are encouraged to report any occurrences of which they are aware to PUBLIX management. 28. At the same time it was unofficially encouraging and rewarding employees such as Arunya by allowing her to work overtime, PUBLIX was officially encouraging other 10employees such as GREG to report ‘violations’ such as working off the clock to supervisors and management. This situation created an inherent conflict in the workplace of the Tarpon Springs Publix between employees wherein some ~ such as Arunya ~ were allowed to work overtime virtually each and every week while others — such as GREG - were not afforded or were det 1d the same opportunity and were put in the position of having to officially report what they thought was Arunya’s working off-the-clock. Arrunya Begins to Target Greg 29, Arunya’s time sheets for 2010 show that she worked a substantial number of overtime hours each week during February and March of 2010, Arunya’s pay records show that she recorded some 70 hours of overtime and premium pay hours during February 2010 and some 60 additional hours in March 2010. This gave rise to a situation where Arunya was often seen working at the seafood department by other employees during times outside of her regularly scheduled shifts, Predictably, Arunya was witnessed by GREG and other employees to have been working many times when she ‘was thought to be off the clock. Since store management at the Tarpon Springs Publix had concealed the fact that Ananya was being allowed so many overtime and premium pay hours with the express approval of Ron Chmielorz. and Mickey MePhee, GREG believed and assumed that Arunya was working off the clock in violation of PUBLIX policy on the numerous occasions during which she was observed working outside her normally scheduled shift. 30, On Thursday, March 25, 2010, GREG arrived at work to again find Arunya working outside of her scheduled shift, Believing that she was working off the clock in iWviolation of official PUBLIX policy, GREG spoke with Arunya and advised her that all department employees would be subject to potential discipline and loss of bonus pay if she were to be injured while working off the clock In response, Arunya became extremely confrontational, telling GREG that she worked off the clock all the time and threatening that if GREG reported her or filed a complaint regarding Arunya’s work with store management at the Tarpon Springs PUBLIX, she would kill him. 31. The following day, Friday, March 26, 2010, GREG left work at approximately 4 p.m. Later that evening, at around 8:00 p.m, as was his habit, GREG called the Tarpon Springs Publix and spoke to another employee in the Meat Department to check on department sales and to make sure the department was operating smoothly. At that time, GREG was told by a fellow employee that the following week’s work schedule had been posted on the bulletin board, This employee told GREG that, upon the schedule being posted by PUBLIX management, she witnessed Arunya crossing GREG'S name off the schedule, When asked at that time by the employee why she had done that, Arunya replied, “because he’s dead ~ I killed him.” Arunya made this statement in the area of the ‘Tarpon Springs Publix where work schedules are posted for the meat and seafood department in the presence of at least one employee, the female co-worker who reported it 0 GREG, Upon information and belief, management of the Tarpon Springs Publix were aware, or should have been aware of Aruny "S name \'s action in crossing out GRI from the work schedule and were aware, or should have been aware of the threat Arunya had made against GREG. 32. At some point afier Arunya threatened GREG on Thursday, March 25, 2010 and after she was seen crossing GREG'S name off the work schedule on Friday, March 26, 122010 and s 1g that she had killed GREG, Arunya’s threats against GREG were reported directly to PUBLIX management — including Mickey McPhee and Ron Chmielorz ~ by other PUBLIX employees. 33. Between Friday, March 26, 2010 and Monday, March 29, 2010 GREG spoke with ‘Tarpon Springs store manager Mickey McPhee about the threats that had been make against him by Arunya. Upon information and belief, GREG also spoke directly to his department manager, Ron Chmielorz. Either Mr. McPhee or Mr, Chmielorz, or both of them, told GREG that several other people had also reported Arunya’s threats to them, GREG was told that PUBLIX management would ‘handle’ the situation, 34, On Tuesday, March 30, 2010, Arunya left home at 6:30 a.m, and upon arriving at the Tarpon Springs Publix was called into the manager’s office by Mickey McPhee and Ron Chielorz. At that time, Arunya was terminated from her job. Arunya was terminated notwithstanding the fact that: A. To Arunya, her job was the most important thing in her Tife — a fact that was well-known to both McPhee and Chmielorz; B. —_Arunya had received numerous awards from PUBLIX for her performance on the job throughout her tenure at PUBLIX: C. Prior to her termination, Arunya had been asked by Chmielorz to work virtually all of the overtime available at the meat/seafood department and had been frequently asked to assist with the opening of the seafood departments of new Publix stores ~ an assignment that was considered a perk or reward for PUBLIX employees; 13D. As recently as six days prior to her termination, Arunya had been asked to have a photograph taken with the district and regionzl managers as a kind of reward for her job performance; E, _ Anunya was considered by both McPhee and Chmiclorz to be a valuable ‘employee and one whom they and PUBLIX corporate management had rewarded and praised on numerous occasions. They knew that being fired would be a complete shock to Arunya; F. Both McPhee and Chmielorz knew or should have known that Arunya’s being fired from PUBLIX would emotionally devastate her and both actually witnessed her desperate, volatile and emotionally unstable reaction to 1g fired; G. Chmielorz had not told other department employees that he and/or McPhee were allowing and asking Arunya to work additional overtime hours in excess of her normal scheduled 40-hour workweek. Upon information and belief, rather than allow this preferential but undisclosed treatment of Arunya to become known to other employees and/or upper management, Chmielorz. and McPhee chose to fire Arunya, without regard to the consequences to her and to GREG; H. — PUBLIX never considered or gave proper analysis to the less drastic alternatives available to them and to Arunya short of firing her. For example, Arunya was never offered any other position within the Tarpon Springs store, was never offered any “cooling off” period, was never offered any time off - paid or unpaid, was never offered an opportunity to transfer to an altemate PUBLIX store, and was never offered any in-house counseling or altemate dispute 14resolution to resolve any issues she may have had with GREG or any other PUBLIX employee: I Arunya was never offered any assistance from PUBLIX in terms of counseling or mental evaluation in light of the threats she had made and her unstable behavior, J. Asan altemative to firing Arunya, Chmielorz never offered to explain to other department employees that he had asked Arunya to work overtime and that she had not actually been working off-the-clock; 35. Immediately upon being terminated and while still in the offices of Ron Chmielorz and/or Mickey McPhee, Arunya became very emotional and exhibited obvious signs of extreme distress and mental and emotional instability. She displayed extreme behavior and went into hysterics in the presence of PUBLIX store management, Other PUBLIX employees who heard Anunya’s reaction to being fired said Arunya was wailing, “as if her heart had broken and she was about to die.” This is exactly the type of employee situation and crisis for which many large corporations have what are known as “Threat Assessment Teams,” which are specially trained teams who are put on notice of potential employee instability and are prepared to deal with any potential threats or violent rea ated or have exhibited jons from employees who have been tem threatening behavior under any circumstances. In this particular situation, PUBLIX either had no viable Threat Assessment Team to deal with Arunya or, alternatively, any such team that PUBLIX did have failed completely to recognize or deal with the threat posed by Arunya upon her termination and prior fo her termination,36. No one from PUBLIX contacted law enforcement or even bothered to contact Arunya’s husband (who also worked for Publix at a different store) on or about March 30 2010, to inform him or her of the fact that Arunya had threatened to kill GREG if she was fired and that she was at that time actually being fired. 37. No one from Publix contacted GREG or any of GREG'S family, friends or co- workers to tell him or her that Arunya had been fired or to inform GREG or his family of the multiple threats Arunya had made to kill him ~ particularly where those threats had been conditioned upon Arunya’s being fired, a condition that PUBLIX knew with absolute certainty was about to take place. No one from PUBLIX took any action whatsoever to ensure that Arunya was emotionally stable or that she would not act upon the threats she had previously made, despite the fact that PUBLIX managers knew that Anunya had previously and consistently reacted to adversity with anger and potentially violent behavior. As such, Arunya’s anger and her subsequent acting out upon that anger was the natural and predictable result of the chain of events set in motion by PUBLIX that morning. 38, Immediately after her termination on March 30, 2010 and while stil] emotionally distraught and unstable, Arunya left the Tarpon Springs PUBLIX store and went to her home. ‘There she picked up a nine-millimeter semi-automatic handgun and returned to the Tarpon Springs Publix. Upon her return to the store prior to the start of GREG’S shift, Arunya found GREG in his customary spot sitting in his vehicle in the parking lot, talking on the phone to his wife, Elizabeth, as he did every day before clocking in for work, Within seconds of GREG'S hanging from his phone call with Elizabeth, Arunya strode purposefully up to the driver's side window of GREG'S vehicle and fired four 16rounds from her handgun into GREG'S head and chest, killing him almost instantly Arunya then ran into the Tarpon Springs Publix store and aitempted to shoot and kill other employees. Before she could injure anyone else, however, Arunya was shot and critically wounded by a Tarpon Springs police detective. At the time of filing of this complaint, Arunya has been moved from supervised medical care to the psychiatric wing of the Pinellas County Jail. 39. GREG is survived by his wife, Elizabeth, his four children, Savannah, Jade, Austin and Nicholas, and his mother, Kalliope Singletary. COUNT I ORDINARY NEGLIGENCE 40. Plaintiff readopts and realleges paragraphs 1 thru 39 above as if fully set forth herein. 41, Atall times material hereto, the Tarpon Springs Publix was operated as a retail grocery store open to the general public. 42, On March 30, 2010, GREG was lawfully upon the premises maintained or under the control of PUBLIX, to wit: the parking lot of the Tarpon Springs Publix store. 43. At the time of the attack, GREG was seated in his personal vehicle in the parking Jot of the Tarpon Springs Publix. He was not on the clock, was not in a Publix vehicle, was performing no work-related duties or services on behalf of PUBLIX or for the benefit of PUBLIX and was not at that time under the control or authority of any PUBLIX manager, supervisor or representative. As such, GREG was lawfully on the premises of PUBLIX as an invitee on March 30, 2010. 744, public va At all times material hereto, PUBLIX owed GREG and other members of the is duties. These duties included, but were not limited to, the following: A. The duty to maintain its premises in a reasonably safe condition for its customers and other invitees; B. The duty to keep the premises safe from threats or dangers that were or should have been obvious to PUBLIX, but were not readily observable by invitees, such as GREG, and that were specifically applicable and particular to GREG, given the specific knowledge that PUBLIX had concerning the danger to GREG and the specific knowledge by PUBLIX that it had set that danger in motion by its treatment of Arunya and its concealment of the facts; C. The duty to use reasonable care for the safety of GREG and other members of the public while on the premises; D, The duty to warn GREG and other members of the public of dangerous conditions on or around the premises of which it had, or should have had, knowledge greater than that of GREG; FE, The duty to wam its patrons and GREG about Arunya’s firing and her overt threats of violence; F. The duty to use reasonable care and the duty to take such minimal actions as would have reduced, minimized or eliminated the foreseeable risk of Arunya attacking someone on the premises before the threat manifested itself into a specific dangerous condition on the premises. Such minimal actions include, but were not limited to: contacting law enforcement after Arunya’s termination;notifying GREG that Arunya had been ter ated; and maint 1g a watch over the parking area after Arunya’s termination, G. The duty to provide adequate security measures and personnel against reasonably foreseeable criminal attacks on the premises; and H. The duty to have instituted policies and procedures to make and keep the premises safe for its customers and other business invitees, including GREG, and especially to GREG, particularly in light of the facts and information in the possession of PUBLIX concerning the specific danger to GREG that was known, or should have been known to Ron Chmielorz, Mickey McPhee and PUBLIX management before the firing of Arunya, 45. At all times material hereto, PUBLIX knew or should have known that it had fostered and created a dangerous condition by the way in which its managers and supervisors had handled the termination of Arunya including, but not limited to the fact that Arunya had previously made specific threats against GREG and impliedly against others. PUBLIX thereby knowingly placed its employees, customers and other invitees on the premises at substantial risk for serious injury or death. 46. Given the situation that existed at the Tarpon Springs Publix on March 30, 2010 as des «d hereinabove, it was reasonably foreseeable that a threat and a zone of danger existed in and around the Tarpon Springs Publix toward not only GREG, but any and all invitees on the premises and that this threat and danger would ultimately be realized. 47. PUBLIX breached its duty of care to GREG and to other invitees on its premises and was negligent by virtue of its commission of acts and/or omissions that include, but are not limited to, the following: 19A. Failing to provide security on its premises commensurate with the facts and circumstances known to PUBLIX that were, or should have been, apparent t0 reasonably prudent persons, including the failure to provide security personnel and to take such security measures necessary to protect its customers, employees and invitees from the reasonably foreseeable danger of criminal assault; B. Failing to notify law enforcement or request that law enforcement patrol the premises after the firing of Arunya; C. Failing to warn GREG or anyone else about Arunya’s firing or the threats made against GREG either prior to his arrival at the Tarpon Springs Publix or before his arrival; D. Failure of management to have in place any viable threat assessment team or personnel that would have been able to identify the threat posed by Arunya prior to her killing GREG, E. Failure of management to have an adequate system in place whereby potentially unstable employees such as Arunya could be identified and could be counseled or offered assistance in such a manner as to prevent employee violence against either customers or other employees; F. Failure of management to have in place an adequate system for the non- violent resolution of inter-departmental or employee vs. employee disputes; G. Failure of management to take any action with regard to Arunya after having specific knowledge that she had threatened to kill GREG including, but not limited to Arunya’s: transfer, reassignment, leave of absence, counseling, training or education; andH. Failing to assign an employee or security service to escort GREG or other business invitees from the parking lot to the store upon his arrival; Failing to assign an employee or security service to surveil the parking area and approaches so that an alert or warning could be issued upon the arrival of Arunya, or upon the approach or appearance of any other dangerous condition or circumstance; J. Failing to educate and train its agents, servants and/or employees in security measures and procedures; K. Failing to take precautionary steps and implement security measures to protect business invitees, such as GREG, from the reasonably foreseeable danger of criminal assault; L. Failing to discharge its duty to use ordinary and reasonable care for the safety of its business invitees, including GREG, and failing to maintain the premises in a reasonably safe condition despite having specific knowledge of threats made against GREG and the danger posed to GREG and to any other invitees on or about March 30, 2010; M. Failing to have in place any cameras or other parking lot or perimeter surveillance equipment that could have provided warning within the store of the arrival of Arunya or her approach to GREG'S vehicle; ‘The complete failure to take any precautionary measures or implement any safety measures whatsoever designed to monitor or react to threats or dangerous and criminogenic situations involving its employees or others that might have prevented the death of GREG upon PUBLIX’S premises.48. As a direct and proximate result of the negligence of PUBLIX as described hereinabove, all employees, customers and other invitees of PUBLIX, and particularly GREG, were placed at risk for injuries or death from a threat that was foreseeable, predictable and preventable. 49. As a direct and proximate result of the negligence of PUBLIX as described hereinabove, GREG was killed on March 30, 2010 causing damages to his beneficiaries as follows: a To the ESTATE OF GREG JANOWSKI, loss of prospective net accumulations and any and all funeral, medical and other expenses incurred by or on behalf of the estate; To Elizabeth Janowski as surviving spouse, loss of support and services in the future; loss of GREG'S companionship and protection; and mental pain and suffering from the loss of her spouse; To Savanna Janowski, as GREG'S 7-year old daughter, loss of support and services in the future; loss of her father s parental companionship, instruction and guidance; and mental pain and suffering from the loss of her father; To Jade Janowski, as GREG'S 18-year old daughter, loss of support and services in the future; loss of her father’s parental companionship, instruction and guidance; and mental p and suffering from the loss of her father; To Austin Janow i, as GREG'S 13-year old son, loss of support and services in the future; loss of his father’s parental companionship, 2instruction and guidance; and mental pain and suffering from the loss of his father, f. To Nicholas Janowski, as GREG'S 16-year old son, loss of support and services in the future; loss of his father’s parental companionship, instruction and guidance; and mental pain and suffering from the loss of his father, g. To Kalliope Singletary, as GREG'S mother, loss of support and services in the future. As a direct and proximate result of the negligence of PUBLIX, Plaintiff seeks all elements of damages recoverable under the Florida Wrongful Death Act, including those enumerated above, WHEREFORE, the ESTATE OF GREG JANOWSKI, by and through its personal representative and the surviving spouse, Elizabeth Janowski, demands judgment on behalf of all beneficiaries from the Defendant, PUBLIX, for all damages set forth herein and allowed by law together with such further relief as the Court deems appropriate. Plaintiff demands trial by jury. COUNT II NEGLIGENCE UNDER THE INTENTIONAL TORT EXCEPTION TO THE WORKERS COMPENSATION STATUTE, FS. § 440.11()(b) 50, Plaintiff readopts and realleges paragraphs 1 thru 39 and 44 thru 47 above as if fully set forth herein. Plaintiff pleads this count in the alternative in the event that 23PUBLIX seeks immunity under the provisions of Florida’s Worker's Compensation Law, codified in F.S. Chap. 440.01 et seq. 51, Atall times material hereto, PUBLIX had a duty to its employees, customers and invitees, including GREG, to maintain a safe working environment. 52. Atall times material hereto, PUBLIX had a duty to its employees, customers and invitees, including GREG, to wam them of dangerous situations and/or conditions of which PUBLIX had knowledge or should have had knowledge. 53. PUBLIX breached its duty to GREG by virtue of actions that include, but are not limited to, the following: A Ignoring numerous, specific threats made by Arunya against GREG; B. Ignoring past violent outbursts and threatening behavior in the workplace of which PUBLIX was aware or in which PUBLIX management had been witnesses or participants; C. Failing to impose adequate conditions and/or safeguards upon Arunya’s continued employment with PUBLIX after past incidents in which she had exhibited violent outbursts and/or threatening behavior including, but not limited to, transfer or reassignment to an alternate store; D. Failing to recognize that Arunya posed a serious threat to GREG and to others both before and after her termination by PUBLIX; Failing to wam GREG, any member of GREG'S family, or any of GREG'S friends or co-workers of Arunya’s direct threats toward GREG; FB Failing t0 warn GREG, any member of GREG'S family, or any of GREG'S friends or co-workers of Arunya’s termination of employment;G. ailing to contact law enforcement about Arunya’s threats against GREG; H. ailing to contact law enforcement prior to firing Arunya and having law enforcement personnel present on-site at the time Arunya was terminated; L Failing to arrange to have law enforcement escort Arunya from the store and from the property following her termination to ensure that she did not react in a violent, retaliatory fashion; I Failing to contact Arunya’s husband — who was also a PUBLIX employee at a different store ~ in order to inform him of the situation and of Arunya’s threats, and unstable behavi Had Arunya’s husband been contacted, he could very likely have calmed Arunya or, at a minimum, escorted her from the store and likely prevented her armed retum and the killing of GREG, No one from the Tarpon Springs Publix, however, took even this minimal preventative step for the safety of GREG and other PUBLIX invitees; K Failing to have an established or effective program for the evaluation of employees such as Arunya who have exhibited violent, unstable behaviors or who have threatened violence to other employees or customers; L. Failing to have an established or effective program or system for dealing with instances of potential or threatened violence of employees toward other employees or customers; M. Failing to have an established or effective system by which employees such as Arunya could request or receive counseling in situations of stress, conflict or emotional instability; 25N. Failing to have in place an established or effective threat assessment team or group charged with the responsibility of identifying and addressing situations involving threatened or potential employee violence, such as that involving Anunya; ©. Failing to have in place an established or effective employee ‘fitness for duty’ evaluation program for employees, such as Arunya, whose behavior raises questions about his or her ability to safely perform their duties or to interact safely with other employees or customers; P. Failure to have an established or effective program or policy whereby crises or negative events in employees’ personal lives can be reported, evaluated and counseling or other assistance offered Q Failure to adequately or properly monitor or investigate intemet sites, personal blogs, chat rooms, and/or personal information and social networking sites such as FaceBook and Twitter, in which PUBLIX employees may have posted information that would have alerted PUBLIX to potential danger. Had PUBLIX conducted such monitoring and/or investigation, it would have had a reasonable chance of locating information about Arunya which indicated that she had access to firearms and was willing to use them against those whom she deemed a threat or who had angered or upset her; R. _ Failure to conduct adequate background investigation into employees such as Arunya, which would have revealed significant emotional instability, For example, even a cursory investigation into the intemet and/or social networking sites available on the intemet would have revealed a posting by Arunya whichincludes a photograph of Arunya at a firing range shooting a nine-millimeter handgun and bearing the caption “Don’t Mess With Little Thai Girl.” A copy of this posting is attached hereto as Exhibit A for review and reference. This posting was openly available to viewing by anyone. In the existing climate of corporate business and the frequency of threats and acts of violence on business premises by and against employees and customers, any business of the size and scope of PUBLIX has a duty to perform checks of its employees that include intemet searches such as that wh h discovered Arunya’s attached posting, particularly in situations which the employee has made threats or exhibited signs of emotional or mental instability. This particular posting regarding Arunya was available to PUBLIX at all times material to the events alleged herein; s, Failure to conduct even rudimentary investigation to determine whether employees such as Arunya possessed or had access to firearms; T. Failure to properly secure the PUBLIX premises and areas utilized by PUBLIX and its employees and customers, including the parking Jot, for the safety and security of its employees and customers. Such security measures included, but are not limited to providing security guards on the premises, installing and monitoring security and surveillance cameras and equipment, and/or assigning employees or management to physically patrol or monitor the parking area and approaches to the store; u Failure to have a system in place to monitor incidents in the personal lives, of it employees which might cause mental or emotional instability, i.c. bankrupte; divorce, death of family or friend; DUT; financial difficulties or other traumaticpersonal events and failure to have in place adequate or effective systems ot procedures by which employees, such as Arunya, could report such events ~ either for themselves or for other employees - or receive assistance. V. Failure to establish or adequately maintain workplace violence policies and procedures; W. Failure to establish or adequately maintain workplace threat assessment policies and procedures or a Threat Assessment Team; X. Failure to establish or adequately maintain a Employee Assistance Program which could have helped employees such as Arunya deal with the issues which confronted her and which triggered her violent actions before she acted; y, Failure to establish or maintain a program or system through which PUBLIX could be aware of employees suffering from some form of substance abuse or taking prescribed psychotropic medications that might increase their emotional instability or violent tendencies; Zz. Failure (0 adequately train or inform employees and management as to the appropriate actions to take when confronted with a violent or potentially violent employee; AA. — Failure to have or, alternatively, failure to follow procedures for the termination of employees who have a demonstrated propensity or potential for violence or retaliatory action; BB. Failure to have, or alternatively, failure to follow procedures to ensure the safety of customers and other employees and to minimize any potential violence by an employee who is terminated; 28CC. Failure of management to contact anyone regarding Arunya’s behavior prior to or on March 30 2010. 54, Arunya’s attack on GREG was reasonably foreseeable for reasons that include, but are not limited to, the following: A. Arunya had specifically threatened to kill GREG; B. —Arunya’s threats to kill GREG were communicated to or were otherwise known by PUBLIX management; C. — Arunya had a history of threats and violent, erratie behavior in the past when confronted by other employees, as evidenced by her confrontation with another meat department employee in November of 2009 that was first brought to the attention of Assistant Meat Department Manager David Espinosa and, subsequently, Meat Department Manager Ron Chmielorz; D. __ Arunya blamed GREG for her termination; FE, Arunya had been praised and rewarded during her tenure at PUBLIX, receiving awards and recognition for her job performance as recently as the week before her termination. Additionally, she had been shown favoritism by department manager Ron Chmielorz in allowing Arunya to work overtime on a regular basis, Under those circumstances, and particularly in light of Arunya’s attachment and dedication to her job — of which PUBLIX was well aware - PUBLIX knew, or should have known, that Arunya would be extremely upset and highly emotional upon learning that she had been terminated; F.— Arunya had access to firearms and had the ability to use them, as evidenced by the web page photograph previously attached as Exhibit A. 2935. In light of Arunya’s prior recent behaviors and violent outbursts when confronted by PUBLIX management; Arunya’s specific and explicit threats to kill GREG; and PUBLIX’S failure to warn GREG or anyone close to him about Arunya’s firing, PUBLIX’S conduct as described herein was substantially and/or virtually certain to cause serious injury or death to GREG. 56. The danger created by PUBLIX in its firing of Arunya in the manner described herein was not apparent to GREG nor was the risk GREG faced from Arunya, PUBLIX by and through Ron Chmiclorz and Mickey McPhee made the conscious and considered decision to terminate Arunya, ‘They then made the conscious and considered decision not to inform GREG of Arunya’s firing and to conceal that fact from him, notwithstanding Arunya’s very specific threats to kill GREG upon the happening of that contingency. PUBLIX made that contingency a reality and condemned the Plaintiffs to a lifetime without a husband, father and son. 57. PUBLIX’S deliberate and reckless concealment of the fact of Arunya’s firing from GREG and from GREG'S friends, family and co-workers ensured that GREG was completely unaware of the danger and further ensured that GREG was prevented from exercising an informed judgment about: whether to come to work or stay away on Tuesday, March 30, 2010; whether to park in a different location from that which he normally used; whether to come in via a different entrance; whether to come in at a different time; whether to request protection from PUBLIX; whether to request protection from the police; whether to carry his own weapon for protection; and/or whether to leave town for his protection and that of his family Had GREG been informed of PUBLIX’S 30actions in firing Arunya that day, GREG could have taken any one of these actions either singly or in combination, any one of which may have saved his life on Tuesday, March 30, 2010, By deliberately concealing the facts from GREG, complete and exclusive control over the situation was assumed by PUBLIX. 58. As a direct and proximate result of the actions and omissions of PUBLIX as set forth hereinabove, GREG was killed on March 30, 2010, causing damages to his beneficiaries as follows: a To the ESTATE OF GREG JANOWSKI, loss of prospective net accumulations and any and all funeral, medical and other expenses incurred by or on behalf of the estate; To Elizabeth Janowski as surviving spouse, loss of support and services in the future; loss of GREG'S companionship and protection; and mental pain and suffering from the loss of her spouse; To Savanna Janowski, as GREG'S 7-year old daughter, loss of support and serv in the future; loss of her father’s parental companionship, instruction and guidance; and mental pain and suffering from the loss of her father; To Jade Janowski, as GREG'S 18-year old daughter, loss of support and services in the future; loss of her father’s parental companionship, instruction and guidance; and mental pain and suffering from the loss of her father; To Austin Janowski, as GREG'S 13-year old son, loss of support and services in the future; loss of his father’s parental companionship, 31instruction and guidance; and mental pain and suffering from the loss of his father; £, To Nicholas Janowski, as GREG'S 16-year old son, loss of support and services in the future; loss of his father’s parental companionship, instruction and guidance; and mental pain and suffering from the loss of his father; and g. To Kalliope Singletary, as GREG'S mother, loss of support and services in the future. As a direct and proximate result of the negligence of PUBLIX, Plaintiff seeks all elements of damages recoverable under the Florida Wrongful Death Act, including those enumerated above. WHEREFORE, the ESTATE OF GREG JANOWSKI, by and through its personal representative and the surviving spouse, Elizabeth Janowski, demands judgment on behalf of all beneficiaries from the Defendant, PUBLIX, for all damages set forth herein and allowed by law together with such further relief as the Court deems appropriate, Plaintiff demands trial by jury.COUNT III NEGLIGENT HIRING, RETENTION & SUPERVISION 59. Plaintiff readopts and realleges paragraphs 1 thru 39, 53 and 54 as if set forth fully herein. 60. Based upon the employment and personal history of Arunya which was available to PUBLIX at the time Arunya was hired, PUBLIX knew or should have known that she was potentially mentally unstable, emotionally volatile, and otherwise incapable of working with other employees without conflict. PUBLIX knew or should have known at that time that Arunya was capable of violence, that she owned or had access to handguns, and that she had a history of issuing threats of violence toward co-employees whenever Arunya felt that someone had treated her unfairly or had acted in a manner she perceived as contrary to her best interests. 61. Alternatively, in the event that such information as set forth in the preceding paragraphs was not reasonably available to PUBLIX at the time Arunya was hired, then based upon the behavior of Arunya during the course of her employment with PUBLIX and the history of prior incidents involving Arunya of which PUBLIX was aware, PUBLIX knew or should have known of Arunya’s unstable mental state; her volatility; her extremely emotional state; her penchant for guns and for violence; her past history of acting out in a violent or potentially violent manner; and her promise to kill GREG. For example, even a cursory investigation into the internet and/or social networking sites available on the internet would have revealed a posting by Arunya which includes a photograph of Arunya at a firing range shooting a nine-millimeter handgun and bearing the caption “Don’t Mess With Little Thai Girl.” A copy of this posting is attached hereto 33as Exhibit A for review and reference. This posting was openly available to viewing by anyone, In the existing climate of corporate business and the frequency of threats and acts of violence on business premises by and against employees and customers, any business of the size and scope of PUBLIX has a duty to perform checks of its employees that include internet searches such as that which discovered Arunya’s attached posting, particularly in situations in which the employee has made multiple threats or exhibited signs of emotional or mental instability, This particular posting regarding Arunya was available to PUBLIX at all times material to the events alleged herein. All of these traits and behaviors about which PUBLIX knew or should have known, indicated Arunya’s unfitness for continued employment with PUBLIX and also revealed the extreme danger that was created and allowed to fester within the Tarpon Springs Publix by allowing Arunya’s continued employment there without any corrective or therapeutic action whatsoever. 62. Atal times material hereto, PUBLIX had a duty to take action with respect to its employee, Arunya, Such action includes, but is not limited to: Conducting an internal investigation with regard to Arunya’s conduct and interactions with other employees and taking preventive and/or corrective action based on such investigation; B. __Reassigning Arunya to a different department or a different store; C. Discharging Arunya as soon as her aberrant behavior became apparent; D. Offering Arunya counseling, therapy and/or guidance in an effort to identify the source of her emotional instability and resulting anger; 3463. E. Providing for medical and/or psychiatric or psychological counseling and/or treatment for Arunya; F. Providing a corporate alternate dispute resolution process that would have provided Arunya and any similarly situated PUBLIX employees with an opportunity to express and deal with any problems, conflicts or difficulties within the workplace or with other employees before initiating violent action; Providing other employees, including Arunya’s co-workers, with training, education and/or counseling in methods of dealing and interacting with other employees, such as Arunya, in such a manner as to not provoke or otherwise antagonize that employee; H. Providing employees with a positive reporting or complaint system whereby co-employees’ work or performance could be constructively improved, as opposed to the existing system, which encouraged criticism and complaints to management whenever an employee was observed by another to have violated company rules. PUBLIX breached its duty of care in that in failed to take one or more of the above described actions, to wit: PUBLIX took no corrective action whatsoever despite multiple warming signs exhibited by Arunya and had no effective systems or procedures in place that would have alleviated or defused the volatile situation which PUBLIX had fostered, set in motion, and allowed to continue with respect to Arunya, 64, As a direct and proximate result of PUBLIX’S breach of its duty as set forth hereinabove and as the direct and proximate result of PUBLIX’S negligent retentionand/or supervision of Arunya, GREG was killed on March 30, 2010, causing damages to his beneficiaries as follows’ a £ To the ESTATE OF GREG JANOWSKI, loss of prospective net accumulations and any and all funeral, medical and other expenses .curred by or on behalf of the estate; To Elizabeth Janowski, as surviving spouse, loss of support and services in the future; loss of GREG’S companionship and protection; and mental pain and suffering from the loss of her spouse; To Savanna Janowski, as GREG'S 7-year old daughter, loss of support and services in the future; loss of her father’s parental companionship, instruction and guidance; and mental pain and suffering from the loss of her father; To Jade Janowsl , as GREG'S 18-year old daughter, loss of support and services in the future; loss of her father’s parental companionship, instruction and guidance; and mental pain and suffering from the loss of her father; To Austin Janowski, as GREG'S 13-year old son, loss of support and services in the future; loss of his father’s parental companionship, instruction and guidance; and mental pain and suffering from the loss of his father; To Nicholas Janowski, as GREG'S 16-year old son, loss of support and services in the future; loss of his father’s parental companionship, 36instruction and guidance; and mental pain and suffering from the loss of his father; g. To Kalliope Singletary, as GREG'S mother, loss of support and services in the future. As a direct and proximate result of the negligence of PUBLIX, Plaintiff seeks all elements of damages recoverable under the Florida Wrongful Death Act, including those enumerated above. WHEREFORE, the ESTATE OF GREG JANOWSKI, by and through its personal representative and the surviving spouse, Elizabeth Janowski, demands judgment on behalf of all beneficiaries from the Defendant, PUBLIX, for all damages set forth herein and allowed by law together with such further relief as the Court deems appropriate, Plaintiff demands trial by jury. COUNT IV DECLARATION THAT FLORIDA STATUTES § 440.11(1)(b) IS FACIALLY UNCONSTITUTIONAL UNDER THE FLORIDA AND FEDERAL CONSTITUTION 65. Plaintiff realleges and readopts the allegations of paragraphs 2 thru 64 as if fully set forth herein, Plaintiff pleads this count in the altemative in the event that PUBLIX seeks immunity under the provisions of Florida’s Worker’s Compensation Law, codified in F.S, Chap. 440.01 et seq. 66. This is an action in which the Plaintiff seeks a declaration from this Court pursuant to Chapter 86, Florida Statutes, that all or a portion of Florida Statutes 37§ 440.11(1)(b) is unconstitutional on its face, for denying access to the courts and denying the constitutional right to have civil damages determined by jury, denying individuals the opportunity to be heard, and to present testimony and evidence and to cross-examine witnesses against them. 67. F.S.§ 440.11 provide: relevant part: (1) The liability of an employer prescribed in § 440.10 shall be exclusive and in place of all other liability, including vicarious liability, of such employer to any third-party tortfeasor and to the employee, the legal representative thereof, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death, except as follows: (a) (Omitted) (b) When an employer commits an intentional tort that causes the injury or death of the employee. For the purposes of this paragraph, an employer’s actions shall be deemed to constitute an intentional tort and not an accident only when the employee proves, by clear and convincing evidence, that: 1. The employer deliberately intended to injure the employee; or 2. The employ similar accidents or on explicit warnings specifically identifying a known r engaged in conduct that the employer knew, based on prior danger, was virtually certain to result in injury or death t0 the employee, and that the employee was not aware of the risk because the danger was not apparent and the employer deliberately concealed or misrepresented the danger so as to prevent the employee from exercising informed judgment about whether to perform the work.... 3868. This statute is the ultimate progeny of legislative attempts in Florida dating back to 1935, to shield businesses from tort liability by placing restrictions and limitations on remedies available to injured employees and their families. Relevant History and Overview of Worker’s Comp Legislation 69. By way of brief historical background, worker's compensation (f/k/a “workmen’s compensation”) legislation began in earnest in the United States in the early 1900’s at the urging of President Theodore Roosevelt and was initially based on the reality that industrial employees at that time were forced to bear their own burden of medical expenses and loss of pay in the event of a workplace injury.’ As time passed, worker's litigation against employers had become more and more successful, leading to the business lobby demanding legislative protection from employee suits, Such legislation was considered a trade-off, wherein the employer agreed to provide medi and wage- Joss replacement in exchange for the injured employees’ giving up his/her right to sue. 70, In Florida, the 1935 Legislature was attempting to attract business to the state beyond the traditional cattle, logging, phosphate mining, and agricultural concerns. As such, it was believed that new prospective employers would require a workers’ compensation law to induce new businesses. The result was Florida’s first workers’ compensation statute, which provided for medical care payments not to exceed $250, surgical payments up to $500, and wage payments of up to 60% of weekly earnings. The total liability of the employer under any circumstances was limited to $5,000. ' See generally, Harger, Lloyd, Workers’ Compensation, A Brief History, State of Florida, Division of Workers’ Compensation, (2010) "Id. 3971, The Florida Workers’ Compensation law as codified in Chapter 440, Florida Statutes, is intended to provide a “quick and efficient delivery of disability and medical benefits to an injured worker and to facilitate the worker’s retum to gainful reemployment at a reasonable cost to the employer.” F.S. § 440.015. The stated basis of the workers’ compensation system is “based on a mutual renunciation of common-law rights and defenses by employers and employees alike...” [d. For employees who fall Within the scope of the statutes, workers’ compensation is the exclusive remedy for “accidental injury or death arising out of work performed in the course and scope of employment.” FS. § 440,09(1); 440.11. 72. It is important to note that, unlike some states, Florida does not have a constitutional authorization for the creation of a workers’ compensation scheme.> 73. The first major overhaul of the worker’s compensation system in Florida came in 1978, which changed the fixed benefit system fo one known as a “wage loss concept.” ‘The statutory scheme was subsequently revised again in 1990 and in 1993, when it was replaced by impairment income and supplemental benefits. Even under this system, however, the potential recovery of an injured worker was substantially limited compared to the potential recovery available to an injured person who suffered injury as a result of another's negligence outside the work environment, 74, In 2003, the workers’ compensation law underwent another major legislative reform with changes to Permanent Total, Impairment Income and Death Benefit provisions and certain exemptions and other provisions not relevant to the instant c Histo ally important, however, and of extreme importance and relevance to this action, * See, e.g, Article II, §§ 34 & 35, Ohio Constitution, for an example of a constitutional authorization for worker’s compensation, 40the 2003 Legislature adopted Senate Bill SOA, effective October 1, 2003, which constituted a major change to § 440.11(1)(b), dramatically changing the burden of proof and the standard for the applicability of the intentional tort exception to the workers’ compensation statutes. The Intentional Tort Exception 75. FS. § 440.11(1)(b) contains language ostensibly intending to remove situations involving intentional torts from the purview of the workers’ compensation statutes so as not to provide immunity to an employer in such situations where the employers’ conduct was tantamount to the commission of an intentional tort against the employee. The theory was, and is, that an employer should not be able to immunize itself and insure itself via worker’s compensation immunity against its own intentional conduct, 76. Prior to 2003, there was no statutory intentional tort exception to the workers? compensation exclusivity bar against civil tort action against an employer. Historically, the issue of exceptions to worker's compensation immunity had initially been addressed both legislatively and judicially in the context of an employee's lizbility 10 a co- employee. This was the issue in Frantz v. McBee, 77 So. 24 796 (Fla, 1955). In that case, the Florida Supreme Court found that employees owed cach other the duty of ordinary care in the performance of their duties and, in the absence of a legislative mandate to the contrary, employees were to be treated as third parties for purposes of the Worker's Compensation Law. The existing law at the time of the Frantz. decision expressly reserved a remedy to an injured employee against a third party tortfeasor, a aLholding that favored workers’ ability to seek judicial remedies for torts committed against them. Beginning a pattern in which the legislature would react 10 each court decision that weakened worker's compensation immunity, Section 440.11(1) was amended by the legislature in 1978. According to that amendment, the immunity for employees who injured other co-employees was limited to actions amounting to simple negligence. Acts of gross negligence by employees against other employees, however, remained actionable. The constitutionality of that simple negligence limitation was challenged in Iglesia v. Floran, 394 So, 2d 994 (1981), which it was argued that the limitation of liability as to co-employees was violative of Article I, Section 21, of the Florida Constitution by denying access to the courts as guaranteed in Kluger v. White, 281 So. 2d 1 la, 1973). The Kluger Court had held that the legislature could not abolish a common. law right without providing a reasonable alternative. The argument in Iglesia was that the workers’ right to seek redress for injuries had been abolished and that the legislature had done so without the required showing of overpowering public necessity for the abolition of such a right. Iglesia, however, found that Section 440.11(1) (1978) only limited the liability of co-employees as to simple negligence and did not unconstitutionally abolish a common law cause of action. The Iglesia court established that a statute that merely changed the degree of negligence necessary to maintain a tort action did not actually abolish a right to redress for an injury. The question of intentional torts as against an employer, however, remained open. In 1986, two cases came before the Florida Supreme Court that certified the question whether the workers’ compensation statutes precluded actions by employees 42against their employers for intentional torts, even though the injuries were received within the course and scope of their employment. See, Fisher v, Shenandoah Gen, Construction Co., 498 So. 2d 882 (Fla. 1986) and Lawton v. Alpine Engineered Products, Inc., 498 So, 2d 879 (Fla, 1986). In both of those cases, the Court declined to answer the certified question, focusing on deficiencies in the pleadings and thereby avoiding the issue. ‘The following year, the Court made an inroad on the intentional tort issue and decided Streeter v. Sullvan, 509 So, 2d 268 (Fla. 1987). There, the Court held that the term “co-employee” as used in Section 440.11(1) included corporate officers and supervisors. Therefore, management-type personnel could be sued as co-employees for acts amounting to gross negligence, thereby weakening the effect of worker's compensation immunity. Once again coming to the rescue of the corporate lobby, the legislature, in response to Streeter, again amended Section 440.11(1) in 1988, adding language that specifically immunized management-policy making employees from civil tort actions unless they were engaged in conduct equivalent to culpable negligence.’ Therefore, the 1988 amendment also significantly raised the standard necessary to maintain a civil tort action against such employees, raising it from gross negligence to culpable negligence,* thereby protecting businesses from the erosion of liability threatened by Streeter. ‘The amendment to F.S. § 440.11(1) excepted conduct that would constitute a violation of law under which FS. § 775.082 was applicable. Under § 775.082, a sentence of 60 days could only be imposed for first-degree misdemeanors or greater. Pursuant to Sect. 784.05 (2) (1989), a first- degree misdemeanor requires ‘culpable negligence,” which has further been defined through case aw interpretation as “reckless indifference” or “grossly careless disregard” of human life. See State v. Green, 348 So. 24 3 (Fla. 1977) * Conduct that is merely guilty of gross negligence would be acting in a manner that a reasonable prudent person would know or would likely to know would likely result in injury to another. See, Glaab v. Caudill, 236 So. 2d 180 (Fla. 2d DCA 1970), 43Subsequently, in Eller v. Shova, 630 So. 2d 537, 539 Fla. 1993), the Florida Supreme Court upheld the constitutionality of the 1988 amendment to Fla, Stat. § 440.111). 77. Recognizing the difficulty of meeting the burden of proof mandated by the 1988 yersion of $ 440.11(1), the Florida Supreme Court finally directly addressed the intentional tort exception for employers in the landmark case of Turner v. PCR Inc., 754 So. 2d 683 (Fla. 2000). In Turner, the Court recognized an intentional tort exception to an employer's immunity under worker's compensation if an employer were shown to have exhibited cither “a deliberate intent to injure” or to “engage in conduct which is substantially certain to result in injury or death.” Id at 687. Therefore, via the disjunctive, the Court recognized two alternative bases under which an employee could prove an intentional tort against an employer and bring a tort action against the employer outside of the worker's compensation immunity. Id. In Turner, the Court recognized that some appellate decisions interpreting the intentional tort exception issue in the years since the 1988 amendment had elevated the “substantial certainty” standard to an even greater level, finding that injury or death had to be a “virtual certainty.”” In response to those decisions that had arbitrarily heightened the standard, the Turner Court stated, “[Allthough we continue to find that ‘substantial certainty’ requires a showing greater than “gross negligence,’ we emphasize that the The Court reaffirmed its definition of ‘culpable negligence’ as ‘reckless indifference’ or “grossly careless disregard” of human life. This was distinguished from “gross negligence’, which was defined as ‘an act or omission that a reasonably prudent person would know is likely to result in injury to another.’ Eller, 630 So, 2d at 541.3. ” See, e.g. Turner, 754 So. 2d at 687 n.4, citing Clark v. Gumby's Pizza Systems, Inc., 614 So. 2d 902, 903 (Fla. 1" DCA 1996) (facts insufficient to establish that employer’s conduct was “virtually certain” to result in injury to employee); UPS v. Welsh, 659 So, 2d 1234, 1236 (Fla. S® DCA 1995) (complaint did not allege conduct that was “virtually certain” to result in injury to employee); Keenan & Sons Demolition, Inc. v. DiPaolo, 653 $0. 2d 1130, 1131 (Fla. 4° DCA 1995) (same). 44appropriate standard is ‘substantial certainty,’ not the heightened ‘virtual certainty’ standard.” Turner, 754 So. 2d at 687 n.4. The Turner Court went further in diluting the immunity of the workers’ compensation statutes by adopting an objective test for the application of the second liability alternative, to wit; that the employer knew, or should have known that its conduct was substantially certain to result in injury or death, as opposed to a subjective standard in which the employee would be required to prove that the employer had actual knowledge of the consequences of its conduct ~ a much more difficult standard. In fact, the Turner Court found it “apparent that adoption of a subjective analysis would result in the virtual elimination of the alternative test for liability set out in Fisher...” Turner, 754 So. 2d at 689. Thus, the Court recognized that a “virtually certain” threshold would be a practical impossibility. 78. The Florida Supreme Court in Turner specifically found that the workers’ compensation scheme was not intended to insulate employers from liability for intentional torts and that the language of § 440.015 indicated that an employee-plaintiff should not be held to any higher standard than any other plaintiff would be in a non-work related intentional tort case. Turner, 754 So. 2d at 689. Turner established the existence of an employer's intentional tort exception to the workers’ compensation immunity and specifically receded from any suggestion in prior holdings to the extent that those holdings could be interpreted as requiring a showing of ‘virtual certainty.’ The Court reaffirmed that the appropriate test was the less stringent ‘substantial certainty’ that an employer's conduct would cause injury or death, 45The Business Lobby Reacts to the Turner Decision 79. The Florida business lobby’s perception of Turner was — correctly ~ 10 see it as another in a line of Court decisions that resulted in a weakening and a dilution of the immunity protections that the legislature had afforded to businesses in Florida, The Turner Court's rejection of a ‘virtual certainty’ requirement as well as its adoption and recognition of two alternative methods of defeating immunity using the intentional tort exception and the Court’s adoption of an objective standard in such cases served to make businesses in Florida more vulnerable to suits by injured employees in situations where the employers’ conduct fell into one of the two altemate standards of conduct. Since the Florida high court had spoken on this is ue and the immunity available to employers had been potentially weakened, the business lobby turned almost immediately back to its friends in the legislature (0 craft even more egregious legislation designed to make workers’ compensation immunity inviolate and impenetrable ~ even in situations involving intentional conduct by the employer, The legislation, Senate Bill 50A, w: sponsored by Senator Charlie Clary (R - Destin) and proposed by the Senate Banking and Insurance Committee for enactment in 2003. 80. The result of the business lobby’s efforts via Senate Bill SOA in the 2003 legislature was the adoption of the 2003 version of Fla, Stat. § 440.11(L)(b), which is the current version, In the new version, the legislature changed the statutory language to circumvent that portion of the Turner Court’s opinion that read that an employer's conduct had to only be “substantially certain” to cause injury or death in order to implicate the intentional tort exception to the employers’ workers’ compensation immunity. As an obvious concession to the business lobby that put them in office, the 46legislators inserted the language of the statute creating the ‘virtually certain’ requirement, added a requirement of intentional concealment by the employer and capped these new requirements by mandating that the elements be proven by ‘clear and convincing’ evidence, The obvious import of this amendment is the ‘virtual certainty’ that no employee would ever be able to meet that exception and, consequently, no employer would ever have to answer for its conduct ~ even when intentional - outside of its workers compensation immunity protection.* 81. Itis this current, post-Turner, version of Fla, Stat. § 440.11(1)(b), enacted in 2003 that Plaintiff herein challenges as facially unconstitutional, Fla. Stat. § 440.11(1)(b) is Facially Unconstitutional 82, Florida Statutes § 440.11(1)(b) is facially unconstitutional for the following reasons: A. Intentional torts are completely unrelated to workers’ compensation and the employment relationship of employer ~ employee. Therefore, FS. § 440.1 1(1)(b) cannot be related to the common purpose of the bill or the legislative purpose for the enactment of the workers’ compensation statutory scheme. Injuries resulting from an employer's intentional torts — even if committed within § Incredibly, this momentous change in the burden of proof under F.S. § 440(1}(b) went virtually unnoticed in the legislative process of adopting SB 50A. Notwithstanding the fact that the new ‘virtually certain’ language virtually guaranteed that no claimant would ever prevail on an intentional tort claim, the change garnered hardly a mention during the Bill's proposal and legislative consideration. See, ¢.g., “Senate Staff Analysis and Economic Impact Statement” (May 23, 2003) and (October 22, jenate Bill SOA, 2003 Workers’ Compensation Reform Act”, Fla, Dept. Financial Servi ; “SB 50-A - Workers’ Compensation, Senators Clary, Alexander and Atwater, Senate Committee on Banking and Insurance” (2003-A Special Session); “Interim Project Report 2004-110", the Florida Senate (Dec. 2003); LegisLetter, Vol. 9, No. 12, “Budget Highlights — Special Session 2003A” June 4, 2003, 47the scope of the workplace — are totally outside the scope of the legislative purposes set forth in F.S. § 440.015. Such injuries are completely and utterly outside the scope of employment and are totally unrelated to the fact and circumstances of employment. In enacting § 440.11(1)(b), the legislature has exceeded the scope of authority granted to it hy the Florida Constitution and is therefore void as an improper exercise of legislative power; B. The legislature has impermissibly eliminated an employees’ right to a common-law cause of action for an employer's intentional tort that would otherwise benefit the employee. This is not merely a change in the evidentiary burden. The practical port of the * intually certain” language of the current statute — as the Turner Court pointed out - is the complete elimination of an employee's right of redress for the intentional torts of his or her employer. This, language, in combination with the new “clear and convincing” evidentiary standard imposed by the legislature creates a practical impossibility for a potential litigant, thereby ensuring worker's compensation immunity to an employer even for its intentional acts; C. The legislature cannot enact legislation governing intentional torts that occur within the employment relationship, because such intentional tortious conduct will necessarily always occur outside the employment relationship; D. By establishing that an employee must establish the employer's knowledge under a standard that is “virtually certain” and further, that the intentional tort must be proven by clear and convincing evidence, the legislature has created a cause of action for the employee that is completely illusory. Under 48the definitional requirements contained in F.S. § 440.11(1)(b), the employer's conduct must be both deliberate and intentional to a standard that in reality cannot be proven, In order to prove an intentional tort within ‘virtual certainty’ standard by clear and convincing evidence to trigger the intentional tort exception of § 440.11(1)(b), the employee or his survivors must prove, at a minimum, that the actions of the employer amount to a criminal assault, In fact, given the strictures imposed by the statute, it is even conceivable — in fact likely ~ that an employer might actually be guilty of a criminal assault and yet remain exempt from liability from civil suit under the workers’ compensation immunity of Chapter 440, Florida Statutes. Legally speaking, an employer can now only be subject to civil liability if its actions amount to criminal assault or murder.” The requirements of F.S. § 440.11(1)(b) are so unreasonable and excessive that the possibility of recovery of damages for an employee or his/her survivors who is the victim of an intentional tort is virtually zero. A such, the statute creates an insurmountable burden which is directly contrary to the stated result and corresponding benefit that is the legislature’s stated, express purpose for the ‘enactment of the workers’ compensation statutory scheme; F. While the legislature has the power to abolish common law remedy, it has not provided a reasonable alternative for the protection of workers and the * In fact, Florida's criminal statutes require a less culpable mental state to take a life than to prove aan intentional tort under FS. § 440.11(1)(b). For example, F.S. § 782.07 sets out the elements of aggravated manslaughter as requiring ‘culpable negligence’ and is provable ‘beyond a reasonable doubt.” An intentional tort under § 440.1 1(1)(b), however, requires proof of deliberate intent or conduct ‘virtually certain’ to cause injury of death and requires that proof by clear and convincing evidence. Clear and convincing evidence is that which is “precise, explicit, lacking in confusion, and of such weight that it produces a firm belief or conviction, without hesitation, about the matter in issue.” Fla, Std. Civil Jury Instr. 405.4. 49redress of their injuries, when such injuries have been inflicted by intentional torts, Although FS. § 440.11(1)() purports to provide a remedy and an exception to workers’ compensation immunity, in reality there is no remedy and the language of the statute effectively bars recovery; G. There is no overpowering public necessity for the enactment of F.S. § 440.11(1)(b) for the protection of employers who have committed intentional torts; H. The statute constitutes a denial of an injured worker's constitutional right of access to the courts as guaranteed by Article I, Section 21 of the Florida Constitution and Article TV, Section 2 of the U.S. Constitution; The statute constitutes a denial of an injured worker's constitutional right to trial by jury for the redress of wrongs or injury, as guaranteed by Article 1, Section 22, of the Florida Constitution; Fi . § 440.1 1(1)(b) constitutes an unconstitutional extension of worker's compensation immunity to immunize the commission of intentional torts by an employer. This clearly exceeds the purpose and intent of the statute; K. By not affording a true remedy, F.S. § 440.11(1)(b) forces a worker injured by an intentional tort or his/her survivors, (0 seek redress through the worker's compensation framework instead of in the circuit court. As such, F.S. § 440.11(1)(b) unconstitutionally delegates or confers judicial power on the administrators of the worker's compensation system and/or administrative law judges; and 5083. L. FS. § 440.11(1)(b), by it terms, encompasses intentional torts that do not meet the standard of ‘virtual certainty’ by clear and convincing evidence, but would otherwise create a valid cause of action, forcing those claimants to seck redress for their injuries within the worker's compensation i munity framework, ‘As such, P'S. § 440.11(1)(b) places a cap on damages that can be recovered by an injured employee or his/her survivors from an offending employer. For no other reason than the fact that the victim is an ‘employee,’ he or she is treated differently from other victims of intentional torts who are not employees. This dichotomy creates a special category of intentional tort victims within the general class of intentional tort victims, In order to pass constitutional scrutiny, legislation must apply equally to all persons within a class and reasonable grounds must exist for making a distinction between the two with respect to their treatment under the law. The legislature has articulated no reasonable grounds for any such distinction between members of the class and there is no legitimate state interest in treating the victims of intentional torts differently — particularly in light of the fact that intentional torts must necessarily arise outside of the employment relationship anyway. F.S, § 440.11(1)(b) therefore violates the constitutional guarantees due proc s and of equal protection under the law as guaranteed by the Fifth and Fourteenth Amendments to the U.S. Constitution, and Article I, § 9 and Article I, § 2 of the Florida Constitution. ‘There is no compelling state interest for the creation of the extraordinarily heightened burden imposed on employees who are the victim of intentional forts under 51FS. § 440.11(1)(b). 84, Plaintiff is entitled to a declaration by this Court that the provisions of BS. § 440.11(1)(b) are unconstitutional on its face. WHEREFORE, Plaintiff respectfully requests that the Court grant the following relief: a Declare that the following language of § 440.11(1)() to be unconstitutional on its face: (b) For the purposes of this paragraph, an employer's actions shail be deemed to constitute an intentional tort and not an accident only when the employee proves, by clear and convincing evidence, that: 1 The employer deliberately intended to injure the employee; or 2. The employer engaged in conduct that the employer knew, based on prior similar accidents or on explicit warnings specifically identifying a known danger, was virtually certain to result in injury or death to the employee, and that the employee was not aware of the risk because the danger was not apparent and the employer deliberately concealed or misrepresented the danger so as to prevent the employee from exercising informed judgment about whether to perform the work... b, Declare that no compelling state interest exists for the provision of worker's compensation immunity to employers who have committed intentional torts; ¢c. Award Plaintiff all costs of bringing this action; and 4. Granting such further relief as this Court deems appropriate. 52COUNT V DECLARATION THAT FLORIDA STATUTES § 440.11(1)(b) IS UNCONSTITUTIONAL AS APPLIED UNDER. THE FLORIDA AND FEDERAL CONSTITUTION 85. Plaintiff readopts and realleges paragraphs 2 thru 64 and 67 thru 80 as if fully set forth herein, Plaintiff pleads this count in the alternative in the event that PUBLIX seeks immunity under the provisions of Florida’s Worker’s Compensation Law, codified in F.S. Chap. 440.01 et seq. 86. Plaintiff seeks a declaration by this Court that the application of FS. § 440.11(1)(b) to the facts of this case would result in the Plaintiff's denial of access to the courts, due process and equal protection under the law and under the constitutional guarantees of the Florida and United States Constitutions by imposing a virtually insurmountable burden upon the Plaintiff as a condition precedent to Plaintiffs access to the courts, 87. The application of F.S. § 440.11(1)(b) to the facts of this case would result in the creation of a separate class of persons injured by intentional torts and the placement of the Plaintiff in that class, to wit: survivors of persons injured or killed by intentional torts who are employees. Only those members of the class that can theoretically mect the threshold of § 440.11(1)(b) by a “virtually certain” standard and can meet that threshold by clear and convincing evidence are entitled to access to the courts for redress of their injuries and damages. All others are forced to make their claims within the framework of the worker's compensation system in which employers are cloaked with complete 53immunity for intentional torts and for which damages are capped pursuant to the relevant provisions of the Florida Administrative Code. WHEREFORE, Plaintiff respectfully requests that the Court grant the following relief: (a) Declare that the following language of F.S. § 440.11(1)(b) to be unconstitutional as applied to the Plaintiff in this case: (b) For the purposes of this paragraph, an employer's actions shall be deemed 10 cor stitute an intentional tort and not an accident only when the employee proves, by clear and convincing evidence, that: 1. The employer deliberately intended to injure the employee; or 2. The employer engaged in conduct that the employer knew, based on prior similar accidents or on explicit warnings specifically identifying a known danger, was virtually certain to result in injury or death to the employee, and that the employee was not aware of the risk because the danger was not apparent and the employer deliberately concealed or misrepresented the danger so as to prevent the employee from exercising informed judgment about whether to perform the Work... (b) Declare that no compelling state interest exists for the provision of worker's compensation immunity to employers who have committed 54(c) @ Respectfully submitted this intentional torts or for the application of worker's compensation immunity to the facts of this case; Award Plaintiff all costs of bringing this action; and Granting such further relief as this Court deems appropriate. day of May 2010. COHEN, FOSTER & ROMINE, PA BARRY A. COHEN, ESQ Florida Bar No. 0096478 SPN 01330204 beohen @tampalawfirm.com 201 East Kennedy Boulevard, Suite 1000 ‘Tampa, FL 33602 (813) 225-1655/Fax (813) 225-1921 Counsel for Plaintiff and JOHN G. THOMPSON, ESQ. JOHN G. THOMPSON AND ASSOCIATES, P.A. Florida Bar No. 0176490 SPN 00170208 1221 EB, Tarpon Avenue ‘Tarpon Springs, FL. 34689 (727) 934-7377 tel. (727) 934-9334 fax Co-Counsel for Plaintiff 355Aronya's Thailand Page Page | of 2 Arunya's Thailand Page His Majesty King Bhumibol Adulyadej (Rama IX) __ Don't Mess With Little Thai Girl’ RK ‘Target shooting with my 9MM My First New Car hutp://www.greatunclebill.com/lek.hem 4/21/2010