Monorail Pilot's Mother Is Suing Disney

[rcapolete]

not that this is a main issues or anything and i see no issue with the manager being off site for the break "THAT DISNEY ALLOWS HIM" people have been stating as fact that it is a law that you get a break. If you do a quick google search you will find as i did straight from the US Department of Labor the following statement regarding breaks and i quote
"Federal law does not require lunch or coffee breaks. However, when employers do offer short breaks (usually lasting about 5 to 20 minutes), federal law considers the breaks as compensable work hours that would be included in the sum of hours worked during the work week and considered in determining if overtime was worked. Unauthorized extensions of authorized work breaks need not be counted as hours worked when the employer has expressly and unambiguously communicated to the employee that the authorized break may only last for a specific length of time, that any extension of the break is contrary to the employer's rules, and any extension of the break will be punished. Bona fide meal periods (typically lasting at least 30 minutes), serve a different purpose than coffee or snack breaks and, thus, are not work time and are not compensable."
this was copied and pasted directly from their website with no editing on my part. and then they go on to state that Florida does not have a state law requiring breaks either. Just figured that since we all are talking about facts we should know them all.

 

[fosse76]

It is very unlikely indeed that "Disney [will] pay thru the nose for this." The monorail pilot's death, as tragic as it is, "arose out of and in the course of employment," and therefore his (estate's) compensation and benefits are controlled by the exclusive remedy provisions of the state's workers' compensation statutes. Each state has created such statutes for precisely this reason - to avoid long, protracted litigation where blame is debated and the civil court system overloaded. Workers' compensation statutes contempate and prescribe certain monetary compensation depending upon the workplace injury, even death. Although his estate will receive the statutorily provided benefits, it will not receive a "bazillion dollar" settlement or verdict.

Disney has a huge liability issue here. Yes, he was working when he was killed. Yes, his family is entitled compensation in accordance to compensation laws. And his mother will most assuredly receive it without problems.

(The only exception to the exclusive remedy provisions of the workers' compensation statutes in most states is for "willful" conduct by the employer - this is a very rare occurrence because the worker (or his estate) would have to prove by preponderance of the evidence that the employer intended to harm the worker. This does not appear to be this kind of incident.)

You conveniently left out this other exception, which almost certainly applies in this case:

"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 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."

Disney's procedures called for the overriding of safety systems which in normal operation would have prevented such an accident. I assume that it is under this section of the law that the mother would sue...and since it is a fact that it wasn't the decedant's fault that the accident occurred, Disney will be hard-pressed to prove their operating procedures didn't lead to this accident. While it is most definitely the fault of the CM who was responsible for switching the beam, the fact is the safety systems had to be overriden, and were therefore rendered useless. The uselessness of the safety systems would seem to fit the description of this paragraph under the exceptions, which I'll point out again, you conveniently neglected to point out in your blind defense of Disney.

Also, the family can sue Bombardier under general liability laws and which would not be subject to the Worker's Compensation statutes.

But not to fret...Disney will settle. This one will won't ever see the inside of a courtroom.

 

[Empress Room]

You conveniently left out this other exception, which almost certainly applies in this case:

"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 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."

Disney's procedures called for the overriding of safety systems which in normal operation would have prevented such an accident. I assume that it is under this section of the law that the mother would sue...and since it is a fact that it wasn't the decedant's fault that the accident occurred, Disney will be hard-pressed to prove their operating procedures didn't lead to this accident. While it is most definitely the fault of the CM who was responsible for switching the beam, the fact is the safety systems had to be overriden, and were therefore rendered useless. The uselessness of the safety systems would seem to fit the description of this paragraph under the exceptions, which I'll point out again, you conveniently neglected to point out in your blind defense of Disney.

Also, the family can sue Bombardier under general liability laws and which would not be subject to the Worker's Compensation statutes.

But not to fret...Disney will settle. This one will won't ever see the inside of a courtroom.

Sorry, fosse, but I have to disagree. I haven't "conveniently" neglected to point out the exception to the workers' compensation statute, in fact, I explained that in order to avoid the exclusive remedy provisions of the statute, the plaintiff's estate would and will have to prove that Disney intended the harm. That is a nearly impossible feat; Disney's procedures for moving the train from one beam to the next, overriding the system, not having the proper personnel involved (as articulated in your paragraph above) may rise to the level of negligence, gross negligence, fault or blame, but that is a much different animal indeed from proving that Disney intended the monorail pilot's death.

Worker’s compensation law in Florida limits compensation to $150,000, but that is for dependants of those injured or killed, the mother would not qualify. The injured has to prove the employer deliberately intended to injure the employee or the employer engaged in conduct that was virtually certain to result in injury and death and failed to warn the employee. Again, that is an extremely high standard of proof. There is no evidence that Disney intended to injure the pilot - obviously just the opposite. And considering the monorail system has operated for 38 death-free years, exactly how does the mother prove that the conduct was virtually certain to result in death or injury and failed to warn him? The fact that the courts have decided not to require Disney to maintain the evidence is telling, IMHO.

My comments were not made to defend Disney blindly (or even with 20-20 vision). My comments were made based upon over 20 years experience litigating just these types of labor and employment law issues.

Bombardier is not Disney and the mother could certainly file a products liability suit against it, but unless Disney manufactured the train, it wouldn't likely be the proper defendant. Proving negligence against Bombardier would be the standard.

I would disagree. The value of this case is clearly in settlement, and that at most requires the deceased's estate to pass summary judgment (probably not even to get that far) because of the harm to goodwill that this case costs Disney if it continues to get publicity (and I'm sure each pleading filed will "inadvertently" get sent to the Sentinel). As far as summary judgment goes, there is some mixed authority:

See Cabrera v. T.J. Pavement Corp., App. 3 Dist., 2008 WL 4922600 (2008) (genuine issue of material fact as to whether employer's conduct, including violation of safety regulations governing trenching, was substantially certain to result in injury to employee, so as to warrant application of the intentional tort exception to workers' compensation immunity, precluded summary judgment in wrongful death action against employer by estate of employee killed while working in trench which collapsed).

But see Bourassa v. Busch Entertainment Corp., App. 2 Dist., 929 So.2d 552 (2006) (expert affidavit submitted by zoo keeper in her action against amusement park arising out of an injury sustained during a simulated blood draw on lion at amusement park, in which expert criticized the blood draw procedure and recommended ways in which amusement park could make the process safer, was insufficient to create a genuine issue of material fact precluding summary judgment as to the applicability of the intentional tort exception to workers' compensation immunity; evidence that the process could be safer did not establish that amusement park acted with deliberate indifference to employee safety).

My guess is that even if a court would follow Bourassa, the amount of time it would take for a favorable ruling would preclude Disney from letting the case stay in court so long.

The value of the case may be in its settlement value, but Bourassa confirms my point that it is in fact a very difficult standard for a plaintiff to meet in order to avoid the exclusive remedy provisions of the workers' compensation act. "Deliberate indifference to employee safety" that was present in Bourassa does not at all appear to exist in the monorail pilot's case. Even if an expert or experts could argue that the switching process could have been done in a better or more safe manner, the 38 year history basically establishes that, at best, it's a difference of opinion.

Cabrera is factually distinguishable. There, the employer was cited for safety violations involving its trenching operations. I haven't read anything similar regarding Disney and the operation of its monorail system or processes. And even then, Cabrera simply found a fact question, not liability.

Disney may very well settle, but to my original point, it won't be "through the nose." Any settlement would likely be much more consistent with the very limited compensation benefits afforded by the workers' compensation statute.

 

[fosse76]

Sorry, fosse, but I have to disagree. I haven't "conveniently" neglected to point out the exception to the workers' compensation statute, in fact, I explained that in order to avoid the exclusive remedy provisions of the statute, the plaintiff's estate would and will have to prove that Disney intended the harm. That is a nearly impossible feat; Disney's procedures for moving the train from one beam to the next, overriding the system, not having the proper personnel involved (as articulated in your paragraph above) may rise to the level of negligence, gross negligence, fault or blame, but that is a much different animal indeed from proving that Disney intended the monorail pilot's death.

There are two exceptions. The one which you quoted, which is the intentional infliction of injury/death. The second exception is quoted in my post, which excepts when the employer engages in behavior that results in dangerous job conditions. It is under this second exception that the mother can sue. The overriding of safety features places the employees in danger. Just because Disney has been operating this way without a death doesn't mean it is safe.

Worker’s compensation law in Florida limits compensation to $150,000, but that is for dependants of those injured or killed, the mother would not qualify. The injured has to prove the employer deliberately intended to injure the employee or the employer engaged in conduct that was virtually certain to result in injury and death and failed to warn the employee. Again, that is an extremely high standard of proof. There is no evidence that Disney intended to injure the pilot - obviously just the opposite. And considering the monorail system has operated for 38 death-free years, exactly how does the mother prove that the conduct was virtually certain to result in death or injury and failed to warn him? The fact that the courts have decided not to require Disney to maintain the evidence is telling, IMHO.

I say again, the second exception negates the limits. The fact that there wasn't an accident doesn't mean the system was safe. The overriding of safety features is, essentially, the reason this happened. Disney should have known that it result in an accident. And you are misstating the facts about maintaining the evidence. She was denied an emergency hearing for an order. It could have been denied because the court believed or was presented with evidence that Disney was already preserving the evidence. Don't make assumptions.

My comments were not made to defend Disney blindly (or even with 20-20 vision). My comments were made based upon over 20 years experience litigating just these types of labor and employment law issues.

And as you well know, the law is never black and white, and it would be very easy for a judge to uphold a lawsuit based on the second exception.

Bombardier is not Disney and the mother could certainly file a products liability suit against it, but unless Disney manufactured the train, it wouldn't likely be the proper defendant. Proving negligence against Bombardier would be the standard.

I still say she can sue both. However, Bombardier can turn around and sue Disney if they can prove Disney operates its monorails in contradiction to their purpose (i.e., the safety overrides as SOP). That would be much harder, but plausible, should a lawsuit arise.

The value of the case may be in its settlement value, but Bourassa confirms my point that it is in fact a very difficult standard for a plaintiff to meet in order to avoid the exclusive remedy provisions of the workers' compensation act. "Deliberate indifference to employee safety" that was present in Bourassa does not at all appear to exist in the monorail pilot's case. Even if an expert or experts could argue that the switching process could have been done in a better or more safe manner, the 38 year history basically establishes that, at best, it's a difference of opinion.

Yes, it does. The fact that you have to override a SAFETY FEATURE automatically puts people on the monorail system in danger. But arguing is pointless, it all comes down to a judge whether or not a suit will exist.
But it won't matter. Disney will settle this.

 

[Empress Room]

There are two exceptions. The one which you quoted, which is the intentional infliction of injury/death. The second exception is quoted in my post, which excepts when the employer engages in behavior that results in dangerous job conditions. It is under this second exception that the mother can sue. The overriding of safety features places the employees in danger. Just because Disney has been operating this way without a death doesn't mean it is safe.



I say again, the second exception negates the limits. The fact that there wasn't an accident doesn't mean the system was safe. The overriding of safety features is, essentially, the reason this happened. Disney should have known that it result in an accident. And you are misstating the facts about maintaining the evidence. She was denied an emergency hearing for an order. It could have been denied because the court believed or was presented with evidence that Disney was already preserving the evidence. Don't make assumptions.



And as you well know, the law is never black and white, and it would be very easy for a judge to uphold a lawsuit based on the second exception.



I still say she can sue both. However, Bombardier can turn around and sue Disney if they can prove Disney operates its monorails in contradiction to their purpose (i.e., the safety overrides as SOP). That would be much harder, but plausible, should a lawsuit arise.



Yes, it does. The fact that you have to override a SAFETY FEATURE automatically puts people on the monorail system in danger. But arguing is pointless, it all comes down to a judge whether or not a suit will exist.
But it won't matter. Disney will settle this.

Say, fosse, I appreciate your opinion and it will be interesting to see exactly how this plays out in court. Overriding a safety function does not make the second component of the exception necessarily any easier to prove for the plaintiff - the pilot's family still must show that overriding that safety function "was virtually certain to result in injury or death and the employer failed to warn the employee," not simply that "when the employer engages in behavior that results in dangerous job conditions." If it were the latter and not the former, every manufacturer of dynamite, oil refinery, steel factory or sawmill would not be protected by the workers' compensation statutes.

This was a tragedy. Clearly, the pilot appears to be blameless. Disney and its employees were likely negligent in their procedures, but that negligence would unlikely rise to the level of the high exception standard. Rest assured, there will be compensation paid to the family, likely through the statute's provisions.