HNTB Corporation was working as an agent of the State of Florida on a highway construction project – performing as the Construction Engineering Inspector – inspecting the installation of smart electronic signage poles along I-10 corridor. Its role was to oversee the general contractor’s compliance with project contract requirements. An employee of the general contractor was killed when he fell off the back of a truck at the end of a workday. The family of the deceased filed a negligence complaint against HNTB alleged that HNTB willfully and wantonly beached its contractual duty to provide safe project conditions by overlooking job site safety violations of the contractor. The appellate court held that as an agent of the State, HNTB was entitle to summary judgment based on it being cloaked with sovereign immunity. HNTB Corporation v. Milstead, 369 So. 3d 749 (Florida 2023).
The issue that was argued by the plaintiff in this case was that HNTB lost its sovereign immunity defense because it acted with “willful and wanton” behavior. In analyzing the issue the court stated:
HNTB’s conduct, either by overlooking day-to-day MOT placement deficiencies, or by failing to monitor and alert SICE to on-site safety considerations, does not rise to the level of “willful and wanton” as it applies to the facts relevant to the incident that resulted in Stinson’s death. Both parties agree that HNTB is a state agency, contracted to oversee the engineering aspects of installation of optical cable and smart signs along the I-10 corridor. As a state agency, pursuant to section 768.28(9)(a), HNTB is immune from suit unless it committed the acts outside the course and scope of employment, or unless the actor was acting in bad faith or with a malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.
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The phrase “wanton and willful disregard of human rights [or] safety,” as used in section 768.28(9)(a), has been interpreted as “conduct much more reprehensible and unacceptable than mere intentional conduct,” and “conduct that is worse than gross negligence.” (citations omitted). Although several Florida courts have sometimes permitted the question of bad faith, malice, or willful and wanton conduct to be sent to the jury, the acts challenged involved far more than mere negligence.
The court further explained how the word “willful” should be interpreted when applying the immunity statute. It sated:
“The word “willful,” like many other words in our language, is elastic, and is of somewhat varied signification according to the context in which it is found and the nature of the subject-matter to which it refers. Sometimes “willfully” is used synonymously with “voluntarily.” In construing statutes of a penal or quasi penal nature, however, a clear distinction is recognized between a mere “failure” and a “willful failure.” As used in such statutes, a “willful failure” to obey is almost universally held to mean something more than a mere inattentive, inert, or passive omission. “Willful,” when used in such statutes, denotes some element of design, intention, or deliberation, a failure resulting from an exercise of the will, or a purpose to fail. A “willful failure” denotes a conscious purpose to disobey, a culpable omission, and not merely innocent neglect. A failure without any element of intention, design, or purpose, and resulting merely from innocent neglect, is not a “willful” failure. Every voluntary act of a person is intentional, and therefore in a sense willful, but, generally speaking, and usually when considering statutes of the character mentioned, a voluntary act becomes “willful” in law only when it involves some degree of conscious wrong on the part of the actor, or at least culpable carelessness on his part, something more than a mere omission to perform a previously imposed duty.”
Applying the above reasoning to the issues in this case, the court found that the alleged acts or omissions might be characterized as negligence, “but they do not rise to the level of ‘willful and wanton,’ and are remote from the circumstances that led to [ the] tragic accident.”
Risk Management Comment
When reviewing contracts we sometimes see language stating that the engineer or contractor agree to waive any sovereign immunity or other types of immunity that might be available to them under state law. We recommend striking that waiver language. The protection afforded by such immunity statutes is appropriate. We so no reason to ask the engineer or contractor to waive the protection afforded by such an immunity statute.
About the author: Article written by J. Kent Holland, Jr., a construction lawyer located in Tysons Corner, Virginia, with a national practice (formerly with Wickwire Gavin, P.C. and now with ConstructionRisk Counsel, PLLC) representing design professionals, contractors and project owners. He is founder and president of a consulting firm, ConstructionRisk, LLC, providing consulting services to owners, design professionals, contractors and attorneys on construction projects. He is publisher of ConstructionRisk Report and may be reached at Kent@ConstructionRisk.com or by calling 703-623-1932. This article is published in ConstructionRisk Report, Vol. 26, No. 3 (March 2024).
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