author: QUINCE, J. WELLS, J.,

text:
    Martin BAKERMAN, Petitioner, v. THE BOMBAY COMPANY, INC., et al., Respondents.
    No. SC05-358.
    Supreme Court of Florida.
    June 21, 2007.

      Barbara Green, Miami, FL, and Robert N. Pelier, Coral Gables, FL, for Petitioner.
    Robert E. Biasotti of Carlton Fields, P.A., St. Petersburg, FL, and Christine R. Davis of Carlton Fields, P.A., Tallahassee, FL, for Respondent.
    Valerie A. Fernandez and Steven G. Gieseler, on behalf of Pacific Legal Foundation, Coral Gables, FL, as Amicus Curiae.
   QUINCE, J.

We have for review Bombay Co. v. Bakerman, 891 So.2d 555 (Fla. 3d DCA 2004), which expressly and directly conflicts with the decision of this Court in Turner v. PCR, Inc., 754 So.2d 683 (Fla.2000). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. For the reasons explained below, we quash the decision of the Third District in Bombay.

FACTUAL AND PROCEDURAL BACKGROUND

In September 1997, Martin Bakerman was injured in a fall from a ladder while employed at a Bombay Company retail store. Employees of the store constantly used the ladder to stock and retrieve sales merchandise from shelves in the Bombay storeroom. The storeroom in which the ladder was used was small and crowded, with shelves of merchandise extending several feet overhead. The ladder used was a wooden A-frame type that had been in use in the storeroom for a number of years. The poor condition of the ladder was apparent. It was old, wobbly, and undersized for its purpose, such that employees would have to balance on top of the ladder in order to retrieve merchandise from the uppermost shelves. Because of its bad condition, the ladder would increasingly sway from side to side when someone climbed it. The only way to stop the swaying was to hold on to the shelves with one hand while retrieving merchandise with the other hand. It was sometimes necessary, as in this instance, to stand on the top step of the ladder in order to reach customer merchandise from the upper shelves. Furthermore, the ladder’s feet were not fitted with rubber traction shoes and were cut at an angle for increased stability while in the open position. However, because there was insufficient space in which to open the ladder, it was usually leaned against the shelves with its legs closed. It was estimated that the ladder was used dozens of times each day by the employees, and Bakerman himself had used it hundreds of times without incident.

Bakerman complained about the danger to his store manager, who also used the ladder. The store manager testified that she, in turn, had repeatedly complained to Bombay Company’s district manager and asked for a new ladder. The district manager testified that he did not recall the requests.

While at the top of the ladder trying to retrieve merchandise, Bakerman momentarily let go of the shelves and fell from the ladder. This fall pulverized the bones of Bakerman’s left heel. Bakerman received workers’ compensation benefits during his recovery but later sued Bombay, claiming that Bombay’s actions constituted an intentional tort. At trial, Bombay asserted workers’ compensation immunity in an unsuccessful motion for a directed verdict. By denying Bombay’s motion for a directed verdict, the trial judge determined that the issue presented a question for the jury — whether the employer knew or should have known that its failure to replace the defective ladder was substantially certain to result in the injury or death of an employee. The jury concluded that the conduct was substantially certain to result in Bakerman’s injury. As a result, the jury found Bombay sixty-seven percent liable and Bakerman thirty-three percent liable. After reduction for comparative fault, judgment was entered in favor of Bakerman for $118,228.20. Bombay appealed.

On appeal, Bombay asserted that the evidence was legally insufficient to support the verdict. On rehearing of its initial decision, the Third District reversed the trial court judgment and remanded the case for entry of judgment in favor of Bombay. The district court referred to this Court’s decision in Turner v. PCR, Inc., 754 So.2d 683 (Fla.2000), to emphasize that the cases finding liability under the intentional tort exception contain “a common thread of evidence that the employer tried to cover up the danger, affording the employees no means to make a reasonable decision as to their actions.” Bombay, 891 So.2d at 557 (quoting Turner, 754 So.2d at 691). Lacking any allegation of concealment' of the danger and finding that the danger was evident to Bakerman, the Third District determined that the evidence was legally insufficient to support liability under the intentional tort exception to workers’ compensation immunity and remanded the case for entry of judgment in favor of Bombay.

ANALYSIS

The question before us is whether the substantial certainty test of the intentional tort exception to workers’ compensation immunity has as an indispensable requirement that the employer conceal danger from the employee. This is a question of law subject to the de novo standard of review. See D’Angelo v. Fitzmaurice, 863 So.2d 311, 314 (Fla.2003) (“The standard of review for the pure questions of law before us is de novo.”); see also Armstrong v. Harris, 773 So.2d 7, 11 (Fla.2000) (“[T]he standard of review for a pure question of law is de novo.”).

Florida Workers’ Compensation law sets forth a comprehensive scheme that provides disability and medical benefits to workers who are injured on the job during the course of their employment. See generally §§ 440.01-440.60, Fla. Stat. (2006). The system is “based on a mutual renunciation of common-law rights and defenses by employers and employees alike.” § 440.015, Fla. Stat. (2006). Injured employees who fall within the scope of its provisions are to be swiftly provided compensation and necessary medical benefits by the employer, irrespective of fault as a cause of the injury. See §§ 440.09, 440.10(2), Fla. Stat. (2006). In exchange, employers that comply with the provisions of the chapter are given immunity from civil suit by the employee, except in the most egregious circumstances. See § 440.11, Fla. Stat. (2006).

When an employer commits an intentional tort against an employee, it may be subject to civil action under a narrow exception to workers’ compensation immunity. In Fisher v. Shenandoah General Construction Co., 498 So.2d 882 (Fla.1986), we held that “[i]n order for an employer’s actions to amount to an intentional tort, the employer must either exhibit a deliberate intent to injure or engage in conduct which is substantially certain to result in injury or death.” Id. at 883. In Turner v. PCR, Inc., 754 So.2d 683 (Fla.2000), this Court reaffirmed the existence of an intentional tort exception to workers’ compensation immunity, requiring an objective analysis to “measure whether the employer engaged in conduct which was substantially certain to result in injury.” Id. at 691. The district court in Turner affirmed the trial court’s grant of summary judgment for the employer, noting that the specific type of accident that resulted in the employee’s death had never before occurred at the employer’s plant. Applying the substantial certainty standard, this Court quashed that decision. Although we emphasized that the employee maintains the ultimate burden of demonstrating substantial certainty to the jury, we found that there was a genuine issue of material fact produced by the experts’ affidavits. “Under an objective test for the substantial certainty standard, an analysis of the circumstances in a case would be required to determine whether a reasonable person would understand that the employer’s conduct was ‘substantially certain’ to result in injury or death to the employee.” Id. at 688.

In the instant action, Bakerman contends that the Third District’s decision conflicts with this Court’s decision in Turner by adding a concealment of danger requirement to the objective substantial certainty standard. In reviewing the instant case on rehearing, the Third District acknowledged the applicable law and noted that the issue presents a jury question as to whether the employer had engaged in conduct that was substantially certain to result in injury or death. Bombay, 891 So.2d at 557. However, the Third District additionally said:

Of particular interest here, the Turner decision also points out that the cases finding liability under the intentional tort exception contain a “common thread of evidence that the employer tried to cover up the danger, affording the employees no means to make a reasonable decision as to their actions.” 754 So.2d at 691 (citing Connelly v. Arrow Air, Inc., 568 So.2d 448 (Fla. 3d DCA 1990), and Cunningham v. Anchor Hocking Corp., 558 So.2d 93 (Fla. 1st DCA 1990), and Emergency One, Inc. v. Keffer, 652 So.2d 1233 (Fla. 1st DCA 1995)).
That element is missing here. Here, as in Emergency One, the dangerous condition was evident to the employee and there was no concealment of the danger. For that reason we conclude that the evidence was legally insufficient to support liability under the intentional tort exception to workers’ compensation immunity. Accordingly, we reverse the judgment and remand for entry of judgment in favor of Bombay.

Bombay, 891 So.2d at 557 (emphasis added). Thus, the court in Bombay effectively held concealment to be an indispensable criterion of the substantial certainty analysis of the intentional tort exception. As a result, an employer will enjoy immunity from civil suit unless the employee can affirmatively show that there was concealment of danger by the employer.

While Turner notes the existence of con: cealment by the employer in some of the cases, Turner does not hold that as a matter of law concealment is a necessary element of the substantial certainty analysis. Neither Cunningham v. Anchor Hocking Corp., 558 So.2d 93 (Fla. 1st DCA 1990), nor Connelly v. Arrow Air, Inc., 568 So.2d 448 (Fla. 3d DCA 1990), which were cited in Turner, held that a concealed danger is required before an employee may recover for intentional tort. In Cunningham, which involved injuries resulting from exposure to toxic chemicals, the First District reversed the decision of the trial court and held that the allegations of the complaint were sufficient to “state a cause of action” and “should not have been dismissed.” 558 So.2d at 97. The district court never suggested that concealment was a required element, but instead emphasized that “the allegations are that injury was a ‘substantial certainty’ and that there was repeated, continued exposure that was intentionally increased and worsened by appellees’ deliberate and malicious conduct.” Id. The employer’s misrepresentation of the danger was only one of several allegations permitting the claims of battery, fraud, and deceit to survive the employer’s motion to dismiss.

Likewise, in Connelly, an action involving the crash of a DC-8 airplane, it was never suggested that an employer must conceal the dangerous condition from the employee before an action can be maintained for conduct that falls outside workers’ compensation immunity. There, the Third District reversed a summary judgment in favor- of the employer, finding it “quite reasonable to conclude, as a matter of law,- that a passenger aircraft which is routinely overloaded and poorly maintained ... will — to a substantial certainty — eventually succumb to the incessant forces of gravity causing serious injury to, or the death of, those aboard.” 568 So.2d at 451. Concealment of the danger from the employees was evidently not a factor in the court’s conclusion. Having found that the objective test of substantial certainty was met without a showing of concealment, the court then stated in dicta:

Further, where the employer, as in this case, withholds from an employee, knowledge of a defect or hazard which poses a grave threat of injury so that the employee is not permitted to exercise an informed judgment whether to perform the assigned task, the employer will be considered to have acted in a “belief that harm is substantially certain to occur.”

Id. (emphasis added).

Under Connelly, the added element of concealment merely provides a presumption that the action of the employer was substantially certain to result in injury to the employee. Thus, contrary to the Third District’s decision in Bombay, Cunningham and Connelly stand for the proposition that concealment can be an important, but not essential, factor in the larger analysis of whether the circumstances demonstrate a substantial certainty of harm.

Even though case law on the intentional tort exception to workers’ compensation immunity is devoid of any defined test that will establish substantial certainty as a matter of law, it is evident that concealment of the dangerous condition is only one of several factors in a nonexclusive list. However, in deciding the instant case, the Third District cited our decision in Turner for the proposition that concealment of the danger is a required element to a finding of liability under the intentional tort exception. Based on this proposition, the Third District concluded that the evidence was legally insufficient to support liability under the intentional tort exception to workers’ compensation immunity. Although the decision in Turner noted that there have been cases that “share a common thread of evidence that the employer tried to cover up the danger, affording the employees no means to make a reasonable decision as to their actions,” the decision did not ultimately conclude that concealment of the danger is a necessary requirement to satisfying the substantial certainty standard. Turner, 754 So.2d at 691. Accordingly, the Third District erred by basing its decision solely on whether the employer concealed the danger.

As the Third District stated in its decision in the instant case, “the evidence presented a jury question on whether the employer had engaged in conduct which was substantially certain to result in injury or death.” Bombay, 891 So.2d at 557 (citing Turner, 754 So.2d at 687 n. 4). We agree that this was an issue for the jury to decide. At trial, the jury was instructed on what it should consider in making its decision, including the following:

Whether the Bombay Company engaged in conduct which was substantially certain to result in injury or death. The mere probability that injury or death might result from an employer’s conduct is not sufficient to hold the employer liable for the accident. If however, the greater weight of the evidence does support the claim of Martin Baker-man, then you should consider the defense raised by the Bombay Company.

The court went on to inform the jury that if they found that injury was a substantial certainty, then they would have to determine if Bakerman exercised reasonable care in the use of the ladder. Based on the facts presented, the jury determined that injury was substantially certain to result. Thus, the issue that the district court should have determined was whether there was sufficient evidence to uphold the jury’s determination that the plaintiff had demonstrated a substantial certainty that injury would result from the employer’s actions or inactions. The district court instead added a new essential element to the substantial certainty test. This was error.

CONCLUSION

Based on the above, we conclude that the Third District erred in reversing the judgment based solely on the plantiff s failure to demonstrate that the employer concealed a danger. Accordingly, we quash the decision of the Third District in Bombay and remand for proceedings consistent with this opinion.

It is so ordered.

LEWIS, C.J., and ANSTEAD and PARIENTE, JJ., concur.

WELLS, J., dissents with an opinion, in which CANTERO and BELL, JJ., concur.

WELLS, J.,

dissenting.

I dissent. My first preference would be to discharge jurisdiction as improvidently granted. My second preference would be to approve the Third District Court of Appeal’s decision in Bombay Co. v. Bakerman, 891 So.2d 555 (Fla. 3d DCA 2004).

The majority opinion holds that the Third District’s decision expressly and directly conflicts with this Court’s decision in Turner v. PCR, Inc., 754 So.2d 683 (Fla.2000). In contrast, I believe that these cases can be reconciled. Moreover, I believe that we should discharge jurisdiction because any decision in this case which involves a claim by an employee against an employer for a work-related injury which occurred in 1997 will have limited application because in 2003 the Legislature superseded this Court’s opinion in Turner with section 440.11(1)(b), Florida Statutes (2003). Section 440.11(1)(b) codified the intentional tort exception to the-workers’ compensation immunity doctrine and explicitly provided that an employer’s actions shall be deemed an intentional tort where:

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 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.

(Emphasis added.) Thus, the conceptual role of employer concealment of danger in the intentional tort exception analysis will not be at issue in causes of action accruing after this amendment.

Since the majority rejects discharging this case, I write to explain my concern that the majority’s decision is a radical deviation from this Court’s historic recognition that the intentional tort exception to workers’ compensation immunity is a limited exception which requires as a legal threshold prima facie proof of an intentional tort. In writing the Third District’s opinion on rehearing, Judge Cope recognized that exceptions to workers’ compensation immunity must be narrowly construed to fulfill the purpose of the act. He quoted this Court’s long established precedent that the workers’ compensation statute

was meant to systematically resolve nearly every workplace injury case on behalf of both the employee and the employer.
A contrary holding giving wide breadth to the rare exceptions to workers’ compensation immunity would merely erode the purpose and function of the Workers’ Compensation Law as established by the Legislature.

Bombay, 891 So.2d at 556-57 (quoting Taylor v. Sch. Bd. of Brevard County, 888 So.2d 1, 6 (Fla.2004)). Judge Cope’s analysis is consistent with this Court’s overarching point in Turner that while Florida jurisprudence includes an intentional tort exception to workers’ compensation immunity, this exception must be understood in context. The workers’ compensation statute was intended to provide a quick and efficient delivery of disability and medical benefits to an injured worker and is based on a mutual renunciation of common-law rights and defenses by employers and employees. Turner, 754 So.2d at 686. Thus, the intentional tort exception must not be allowed to become “a shield for employers to block intentional tort suits” or a sword for employees already compensated for their accidental injuries. Id. at 689.

I begin from the fundamental premise that our decision in Turner did not reduce the requirement that for a claim by an employee against an employer for a work-related injury to proceed to a jury determination, there must to be prima facie proof of an intentional tort. To the contrary, this Court expressly stated:

In summary, we find that our prior case law recognizes, and we reaffirm, the existence of an intentional tort exception to an employer’s immunity. That intentional tort exception includes an objective standard to measure whether the employer engaged in conduct which was substantially certain to result in injury. This standard imputes intent upon employers in circumstances where injury or death is objectively “substantially certain” to occur.

Turner, 754 So.2d at 691. Turner involved the claim that “PCR, Inc. failed to protect its employees from a known danger of explosion and instead ... engaged in conscious and intentional conduct which was substantially certain to result in injury or death.” Id. at 689-90. We found that the threshold requirement of prima facie proof of an intentional tort was satisfied where the plaintiffs offered affidavits from two experts who, after noting three prior explosions at the chemical plant within the prior two years, concluded that PCR’s use of a “reaction facility which they knew was unsuited” to the development of F-pen-tene-2 was intentional conduct that “given its knowledge of [tetrafluoroethylene’s] explosiveness, made Turner’s death and Creighton’s injury substantially certain to occur.” Id. at 690. This Court’s decision overturning a summary judgment in favor of the employer in Turner did not disturb and should not be read to have disturbed the long-established jurisprudence that the intentional tort exception is just that — an “exception” reserved for the rare circumstances where the facts demonstrate that the employer’s conduct was so grievous that it could be objectively concluded that the employer intentionally injured the employee. In short, Turner’s intentional tort exception should not be diluted into an ordinary negligence exception to workers’ compensation immunity.

The present case is patently an action in which the evidence only made at most a prima facie case of ordinary negligence. The record of the proof makes this abundantly clear. This was an action based upon an employee falling from a ladder that was used to obtain merchandise from a Dadeland Mall retailer’s storeroom. Pri- or to this accident, the ladder had been used daily for years to retrieve stock from the storeroom shelves, and there was no evidence of any prior accidents from the use of the ladder, despite evidence that the ladder would sway when it was in use. As the majority acknowledges, the claimant had used the ladder “hundreds of times without incident.” Majority op. at 260. Moreover, there was no evidence that on the day of Bakerman’s accident, the condition of the ladder was any different than it had been during years of daily use. There were no missing or broken rungs on the ladder.

The only witness to the fall was the claimant. When asked to explain the circumstances of his fall, he testified:

A. I had to get to the top shelf to pick out, it’s a box, it was called a varona vase. And it was in a box, very light weight, about fifteen inches cubed, 15 by 15 by 15. And there was—
Q. Was it a ceramic vase?
A. What?
Q. Was it a ceramic vase?
A. No, actually it was a glass vase.
Q. Okay.
A. I think it may have had a little metal support on it or something, but it was very light weight, you know, heavy packed with a lot of stuff in it to protect the glass. They were stacked two high on the [top] shelf.
And I moved the ladder as best I could in the position. I had a lot of stuff on the floor, boxes on the floor. So I positioned it the best I could in there. Went up. I had to go to the top rung. I was holding on with my right hand and reached over for the box, top box. Couldn’t really get a good grip on the box.
Finally got my finger inside in between the, where it folded over so could I get like inside the box a little bit. I was pulling it out and the bottom box started to move with it.
Now I had positioned the ladder the way I normally do, which is leaning also against one the vertical rails so I felt it was pretty secure. I mean given all the instances. And I just wanted to push the bottom box back in. And I just kind of let go for a second, pushed the bottom box in. And the next thing I know, I’m on the floor the ladder is against the side, okay. And I’m in agonizing pain.

This testimony is the sum of the evidence about what caused the claimant to fall from the ladder. Notably, Bakerman did not testify that the swaying of the ladder or any other defect in the ladder had anything to do with his fall.

The record clearly shows that this was an accident and though certainly an unfortunate occurrence, it is precisely the kind of accident which has been historically resolved within the workers’ compensation system. This is an accident in which the quid pro quo of the payment of workers’ compensation benefits without reduction for the employee’s own negligence is intended to work and which did in fact work, since the claimant immediately began receiving workers’ compensation benefits after his fall.

This action should not have been allowed to also proceed in the circuit court to a recovery for common-law damages. The trial court erred in not directing a verdict for the employer. It is the trial court’s role to test the sufficiency of the evidence at the close of the claimant’s case and to draw the legal distinction between conduct which is ordinary negligence and conduct which is intentional. An excellent opinion summarizing the case law on this issue is by Judge Warner in Pendergrass v. R.D. Michaels, Inc., 936 So.2d 684 (Fla. 4th DCA 2006). The underlying injury in Pendergrass, like the action in present case, arose before the 2003 statutory amendment. In that case, the Fourth District Court of Appeal found:

In reviewing the many cases in which the substantial certainty test has been met and those in which it has not, the courts have highlighted two factors which show the type of intentional conduct which a reasonable person would consider resulting in the substantial certainty of injury or death: 1) knowledge of prior accidents or defects and 2) intentional conduct to prevent the employee from learning and appreciating the risks involved in the work specifically known by the employer.

Id. at 691. After referring to numerous cases in which the other district courts held that the operative facts did not support the intentional tort exception as a matter of law, the Fourth District held that the intentional tort exception was inapplicable in Pendergrass because the plaintiffs only offered proof of, at most, negligent conduct. Id. at 691-93 (discussing Bourassa v. Busch Entm’t Corp., 929 So.2d 552 (Fla. 2d DCA 2006); Casas v. Siemens Energy & Automation, Inc., 927 So.2d 922 (Fla. 3d DCA 2006); Allstates Fireproofing, Inc. v. Garcia, 876 So.2d 1222 (Fla. 4th DCA 2004); Fleetwood Homes of Fla., Inc. v. Reeves, 833 So.2d 857 (Fla. 2d DCA 2002), quashed on other grounds, 889 So.2d 812 (Fla.2004)).

In the instant ease, the Third District likewise correctly held that “the evidence was legally insufficient to support liability under the intentional tort exception to workers’ compensation immunity.” Bombay, 891 So.2d at 557. The majority’s insistence that the Third District found the evidence sufficient to present the liability question to the jury is a misreading of the decision for review.

In addition to erroneously concluding that the action should proceed to a jury determination, the trial court further erred by instructing the jury as if Bombay was an ordinary negligence case. The trial court instructed the jury on the liability issue without using the word “intentional.” The trial court then gave an instruction on comparative negligence and submitted to the jury a verdict form that allowed for a finding of comparative negligence. Such instruction was directly contrary to section 768.81(4)(b), Florida Statutes (1995), which provided that comparative negligence was not applicable in an intentional tort action, a principle which had long been the common law of Florida. See Mazzilli v. Doud, 485 So.2d 477 (Fla. 3d DCA 1986) (holding comparative negligence not defense to intentional tort), review dismissed, 492 So.2d 1333 (Fla.1986); see also Deane v. Johnston, 104 So.2d 3, 7-8 (Fla.1958) (“It is commonly conceded that contributory negligence will not bar an action for an intentional tort.”).

These instructions and the verdict form confirm that the trial judge in the present case proceeded as if the case was a negligence action, not an intentional tort action. The crux of the intentional tort exception is whether the conduct was “intentional.” Our opinion in Turner states that the basis of the claim in that case was that PCR, Inc. “engaged in conscious and intentional conduct which was substantially certain to result in injury or death.” 754 So.2d at 690. The foundational and crucial word “intentional” has to be used and defined for the jury in an intentional tort case in which an employee is suing an employer for a work-related injury. Thus, even if the employee claimant had presented prima facie proof of an intentional tort, which I conclude he did not, the jury instructions and verdict form would have been plain error had this action been properly presented to the jury as an intentional tort case.

I make these points about how this case was tried as a negligence case rather than as an intentional tort case because I am concerned about what appears to be a failure to observe a distinct bright-line demarcation between what would be an ordinary negligence case by a claimant against a nonemployer defendant and a case based upon the same facts which is brought by an employee against an employer for a work-related injury. In an action for a work-related injury by an employee against an employer where the trial court determines that the claimant has presented sufficient prima facie proof to meet the standard for an intentional tort, the case must proceed to the jury as an intentional tort action with proper instructions and application of the intentional tort law on comparative negligence. That was not done in this case. Once again, the present action should not have proceeded to a jury determination, and as a result, errors in the jury instructions and verdict form should be held to be moot. See Franklin Life Ins. Co. v. Davy, 753 So.2d 581, 589 (Fla. 1st DCA 1999) (“[Tjhese claims should not have reached the jury. Thus, any claim of error relating to the jury instruction as to such claim is moot.”). However, since the majority has concluded that these facts do raise a jury question and quashed the Third District’s decision, it should reverse the final judgment due to the erroneous jury instructions and verdict form.

In conclusion, the majority plainly fails to follow this Court’s precedent and reaches a decision which is contrary to law, logic, and reason. The best course would be to discharge jurisdiction. Short of that, the Third District’s decision should be approved.

CANTERO and BELL, JJ., concur.

      . We note that this decision will have limited application because the Legislature has amended the statute to add concealment as an essential factor.

      . The Fisher complaint alleged that the employer ordered the employee to enter and clean a pipeline containing dangerous methane gas without safety equipment even though the employer knew that the risk would in all probability result in injury or death. Fisher v. Shenandoah Gen’l Constr. Co., 472 So.2d 871, 872 (Fla. 4th DCA 1985), quashed, 498 So.2d 882 (Fla.1986). This Court found the allegations of the complaint insufficient where they spoke in terms of probability rather than certainty. 498 So.2d at 884. However, we later expressly receded from that opinion to the extent that it could be read as rejecting the facts within as a sufficient basis to support an allegation of substantial certainty of injury. Turner v. PCR, Inc., 754 So.2d 683, 691 n. 8 (Fla.2000). Notably, Fisher lacked any factual allegation that the danger had been concealed from the employee or that the employee was unaware of the danger.

      . In 2003, the Florida Legislature codified the intentional tort exception to workers’ compensation immunity and heightened the standard needed to fall within the exception. Florida’s Workers’ Compensation law now permits suit against an employer:
      (b) When an employer commits an intentional tort that causes the injury or death of the employee. For 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 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.
      § 440.1 l(l)(b), Fla. Stat. (2006). The statute does not apply retroactively and thus does not apply to this case.

      . Some of the facts presented to the jury that reflect a substantial certainty of injury include: the wooden, A-frame ladder could not be used in the open position because the stock room was crowded and narrow; the ladder would be leaned against the shelves in the closed position; the safety locks on the ladder could only be engaged in the open position; the feet of the ladder were cut at an angle so that they would be stable in the open position; the feet had no rubber traction shoes; the ladder was old, rickety, and would increasingly sway from side to side as one ascended it; it was necessary to stand on the very top of the ladder to retrieve merchandise from the top shelves; the top shelves were estimated to be sixteen to twenty feet high; Bakerman complained about the ladder to the store manager; the store manager requested permission to purchase a new ladder from the district manager; the district manager continually refused permission to purchase a new ladder; Bakerman fell while retrieving a vase from an upper shelf and fractured his heel; and Bombay took no action* to replace the ladder until shortly after Bakerman’s fall.

      . The majority opinion twice misstates the Third District’s position, claiming that the Third District "noted that the issue presents a jury question as to whether the employer had engaged in conduct that is substantially certain to result in injury or death." Majority op. at 263; see also majority op. at 264. What the Third District actually said is:
      In the present case the trial court ruled that there was no evidence of any deliberate intent to injure. Thus, the first alternative under Turner was unavailable to Bakerman.
      Under the second Turner alternative, however, the court concluded that the evidence presented a jury question on whether the employer had engaged in conduct which was substantially certain to result in injury or death.

        Bombay, 891 So.2d at 557. A fair reading of this section can only be that "the court” is the trial court, not the Third District. The Third District did not conclude that "the evidence presented a jury question” but instead held that "the evidence was legally insufficient to support liability under the intentional tort exception to workers’ compensation immunity.” Id. This interpretation is supported by Judge Schwartz’s concurrence with the majority of the Third District on rehearing. Judge Schwartz had in no uncertain terms dissented from the original opinion because he found insufficient evidence to invoke the intentional tort exception:
      It is simply beyond my comprehension that the employer’s use of a worn ladder can amount to the extreme manslaughter-type misbehavior which is necessary to avoid the immunity conferred by the Workers’ Compensation Act.

        Bombay Co., Inc. v. Bakerman, 29 Fla. L. Weekly D862 (Fla. 3d DCA Apr.7, 2004) (Schwartz, J., dissenting), withdrawn on reh'g, 891 So.2d 555. The majority is simply wrong in its characterization of the Third District's opinion.


source: Caselaw Access Project

author: PER CURIAM. LEWIS, C.J., BELL, J.,

license: Public Domain

text:
    David EVERETTE, Petitioner, v. FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, Respondent.
    No. SC05-1996.
    Supreme Court of Florida.
    June 28, 2007.

      Bennett H. Brummer, Public Defender, and John Eddy Morrison, Assistant Public Defender, Eleventh Judicial Circuit, Miami, FL, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, Florida, Richard L. Polin, Criminal Appeals Bureau Chief, and Annette M. Lizardo, Assistant Attorney General, Miami, FL, and Amy McKeever Toman, Senior Attorney, Agency for Persons with Disabilities, Marianna, FL, for Respondents.
   PER CURIAM.

This case is before the Court for review of the decision of the Third District Court of Appeal in State v. Everette, 911 So.2d 119 (Fla. 3d DCA 2004). The district court’s decision expressly affects a class of constitutional or state officers. Therefore, this Court has jurisdiction to review the district court’s decision. See art. V, § 3(b)(3), Fla. Const.

FACTS AND PROCEDURAL HISTORY

David Everette suffers from moderate mental retardation, epilepsy, cerebral palsy, schizoaffective disorder, and an impaired gait as a result of an atrophied leg. At the age of sixteen, Everette was placed in the care of the State. A number of years later, in 1994, Everette was charged with first-degree felony attempted murder and aggravated assault with a deadly weapon after he stabbed an individual during an altercation at the group home where he was living. See Everette, 911 So.2d at 119. As a result of Everette’s mental retardation, he was declared incompetent to stand trial and involuntarily committed pursuant to section 916.13 of the Florida Statutes to the Mentally Retarded Defendants Program at the Florida State Hospital pending the dismissal of the charges against him. See § 916.13, Fla. Stat. (1993). On December 18, 1996, pursuant to then-numbered section 916.145 of the Florida Statutes, which provided a two-year time period for the dismissal of criminal charges against persons adjudicated incompetent due to mental retardation or mental illness, the trial court dismissed the charges against Everette. Additionally, because of his inability to care for himself and the possible threat to himself or others if he was permitted to remain at liberty, the trial court involuntarily committed Everette pursuant to section 393.11 of the Florida Statutes, Florida’s civil commitment statute, which permits an involuntary admission to residential services when:

Because of the person’s degree of mental retardation or autism, the person:
a. Lacks sufficient capacity to give express and informed consent to a voluntary application for services pursuant to s. 393.065 and lacks basic survival and self-care skills to such a degree that close supervision and habilitation in a residential setting is necessary, and, if not provided, would result in a real and present threat of substantial harm to the person’s well-being; or
b. Is likely to physically injure others if allowed to remain at liberty.

§ 393.11(8)(b)(3), Fla. Stat. (2004).

The trial court order stated “that the charges against the Defendant are dismissed and he is committed to the Department of Children and Families for secure Residential Placement and appropriate services for a period of time that shall not exceed the maximum sentence for the crime for which he was charged.” Subsequently, Everette was placed in Pathways, a secure Department of Children and Family Services (“DCF”) facility that was then located in Miami, Florida. On June 29, 2004, DCF filed a notice in the Eleventh Judicial Circuit of its intention to transfer Everette to a non-secure residential setting. On August 2, 2004, the court issued an order appointing two experts to evaluate Everette “to determine whether the defendant continues to meet the criteria for involuntary residential services (FI. Statutes 393.11) and, if so, whether the defendant still requires placement in a secure facility because he is likely to physically injure others.” At a hearing held the same day, the trial court orally ordered DCF to be responsible for coordinating Everette’s transport to and from these evaluations. On August 3, 2004, the Pathways facility relocated from Miami, Florida to Marianna, Florida, and Everette was relocated along with the entire facility. On August 25, 2004, DCF filed a motion in the Eleventh Circuit requesting a transfer of jurisdiction to the Fourteenth Circuit, which the circuit court denied. Subsequent to the move of the facility, the circuit court issued two orders directing DCF to transport Everette to the court-ordered evaluations.

DCF filed two separate petitions for writ of certiorari with the Third District, requesting that the trial court orders be quashed, which were ultimately consolidated for review. The fundamental issue presented in these petitions was whether, under the Florida Statutes, the sheriff and not DCF was the party responsible for Everette’s transport to and from the court-ordered evaluations. DCF asserted that because the trial court ordered Everette’s involuntary commitment to a secure facility pursuant to section 916.303(2)(b) of the Florida Statutes (2004), Everette is therefore a “forensic client” under chapter 916 of the Florida Statutes whose transportation is to be coordinated by the sheriff according to the dictates of section 916.107(10), Florida Statutes (2004). Everette countered that he is not a forensic client under chapter 916 because he was civilly committed pursuant to section 393.11 subsequent to the dismissal of the criminal charges against him.

On October 27, 2004, the Third District issued the decision below, which granted the petitions for writ of certiorari, quashed both orders of the trial court, and remanded the matter to the trial court with directions that the trial court order the county sheriff to arrange any transport deemed necessary. See Everette, 911 So.2d at 121. The district court reasoned that although Everette was committed pursuant to section 393.11, after the dismissal of the criminal charges against him, his placement in a secure facility was pursuant to chapter 916, and, therefore, he was a forensic client under section 916.106(7), Florida Statutes (2004) and his transport was governed by section 916.107(10). This Court granted discretionary review based upon Everette’s assertion that the decision below expressly affects a class of constitutional officers by obligating the county sheriff to transport certain persons now classified as “forensic clients.”

ANALYSIS

Failure to Join the Sheriff

In the decision below, the Third District held that the sheriff is responsible for the transportation of Everette and all those similarly situated, but the sheriff was not joined as a party to the proceedings. It is a longstanding principle of Florida law that “[a]ll persons materially interested in the subject matter of a suit and who would be directly affected by an adjudication of the controversy are necessary parties.” W.F.S. Co. v. Anniston Nat’l Bank of Anniston, Ala., 140 Fla. 213, 191 So. 300, 301 (1939). Necessary parties must be made parties in a legal action. See Oakland Properties Corp. v. Hogan, 96 Fla. 40, 117 So. 846 (1928). The decision of the district court below obligates the sheriff to coordinate and fund the transportation of all persons placed in a secure facility following the dismissal of criminal charges against them. This decision could produce a substantial strain on the resources of the sheriffs in Florida. Therefore, the sheriff was a materially interested necessary party to the proceedings below, and the district court erred in failing to provide the sheriff notice and an opportunity to be heard before deciding that the sheriff was responsible for Everette’s transportation. Therefore, we quash the decision of the Third District below and remand for further proceedings.

Everette Is Not a Criminal Defendant Subject to Section 916.107(10)

In addition to failing to join the sheriff as a necessary party, the Third District below also erred in holding that the sheriff is responsible for transporting Everette under section 916.107(10) of the Florida Statutes. The dissenting opinion of Judge Ramirez below accurately expresses why this section is inapplicable in the instant matter. See Everette, 911 So.2d at 123 (Ramirez, J., dissenting). Section 916.107(10) is part of chapter 916 of the Florida Statutes, which addresses the treatment of mentally deficient and mentally ill defendants. See ch. 916, Fla. Stat. (2006). As noted by Judge Ramirez below, Everette has not been a criminal defendant since December 18, 1996, when the criminal charges against him were dismissed and he was involuntarily committed to residential services pursuant to section 393.11 of the Florida Statutes. As Everette is currently a civilly committed person, the transportation provision of section 916.107(10) is inapplicable to him, and the sheriff is not responsible for his transportation. Everette is currently committed to the care of DCF, and DCF is responsible for coordinating his transportation to the court-ordered evaluations at issue in the instant dispute. Therefore, we also quash the decision below on this basis and remand for proceedings consistent with this opinion.

It is so ordered.

WELLS, ANSTEAD, PARIENTE, and QUINCE, JJ., concur.

LEWIS, C.J., concurs in part and dissents in part with an opinion, in which CANTERO, J., concurs.

BELL, J., concurs in part and dissents in part with an opinion.

LEWIS, C.J.,

concurring in part and dissenting in part.

Although I concur in the majority decision to quash the decision below and remand on the basis that the Third District failed to join the sheriff as a necessary and indispensable party, I dissent with regard to that portion of the majority holding that DCF, and not the sheriff, is the party responsible for the transportation at issue in the instant case under the statutory scheme. Subsequent to the dismissal of the criminal charges against Everette, his continued placement in a secure facility was statutorily authorized under chapter 916 of the Florida Statutes, the trial court order specifically mandated a secure facility, and his transportation would therefore be governed by the provisions of that chapter. Therefore, in my view the statutes contemplate that the sheriff would be the appropriate party to transport Everette to the necessary evaluations.

At the outset, I must note my great distress that a Florida citizen with significant mental health issues appears to have fallen subject to an intergovernmental budgetary dispute. Over two and a half years have now elapsed since DCF first filed notice of the intent to transfer Everette from Pathways to a non-secure facility. During the pendency of the present dispute, Everette has remained in a secure facility, and, even more disturbingly, has been relocated with that facility to its present location, some six hundred miles from his nearest relative. I would have hoped that in situations such as this, the various state and local agencies would have been capable of placing the best interest of the person involved first, by ensuring that any required evaluations were conducted and that Everette was placed in an appropriate residential setting, prior to completing litigation with regard to who would ultimately shoulder the costs for transportation to and from these evaluations. Instead, the parties in this matter appear to have chosen to permit Everette to remain in limbo while this budgetary dispute has worked its way through the admittedly slow process. This is simply unacceptable. I very firmly believe that all governmental agencies and employees involved in the care of mentally disabled citizens should always consider the best interest of those individuals over intergovernmental budgetary disputes. We should strive to advance legislative action along with rules and regulations that will work in a coordinated and cooperative way to resolve these conflicts in a manner that will not exacerbate the conditions of these individuals who find their way into the court system.

The statutes and legislative scheme applicable under these facts are not at all clear, and there is room for varied construction and interpretation. While legislative intent is the polestar that generally guides this Court in interpreting statutory schemes, see McLean v. State, 934 So.2d 1248, 1258-59 (Fla.2006), in the present circumstances there is no clear statutory provision that governs the specific language of Everette’s court-ordered placement, and, therefore, the legislative intent to be applied is unclear. While the trial court order here references “secure residential placement,” this term is not used in either chapter 393 of the Florida Statutes, which governs civil commitments, or chapter 916 of the Florida Statutes, which governs the commitment of persons charged with crimes. Instead, these statutes reflect that chapter 393 references “residential placement” or “residential facilities,” while chapter 916 refers to “placement in a secure facility.” See, e.g., §§ 393.063(34), Fla. Stat. (2004) (defining “residential facility”); 916.106(8), Fla. Stat. (2004) (explaining that a “forensic facility” is a secure facility). There is not a single reference to “secure placement” in chapter 393, and chapter 916 does not mention “residential placement” or “residential facilities.” Thus, in my view there is a lack of clarity within the statutory scheme with regard to whether “secure placement” of a civilly committed individual is permitted or contemplated under chapter 393.

With regard to whether Everette’s continued secure placement is governed by chapter 393 or chapter 916, in my view there are certainly valid arguments for either position based on the various statutory provisions of each chapter. I fully understand that my thoughtful colleagues in the majority can reach their conclusion. While the Court could engage in mental gymnastics in attempting to interpret the various provisions of each chapter, I believe that a better approach and the one required here is to examine the overall statutory scheme in an attempt to determine which statutory provisions ultimately govern Everette’s current placement.

Chapter 393 of the Florida statutes, titled “Developmental Disabilities,” governs the treatment of and services provided for persons with developmental disabilities. See ch. 393, Fla. Stat. (2004). It appears to me that a mentally retarded person who has not engaged in any eon-duct which produces criminal charges and who is in need of residential services would be committed under this chapter. See § 393.11, Fla. Stat. (2004). Nothing in this chapter is directed to circumstances in which a person with developmental disabilities has been charged with a crime. As previously noted, it is not clear whether a secure placement is contemplated or even permitted under this chapter.

On the other hand, chapter 916 of the Florida Statutes, titled “Mentally Deficient and Mentally Ill Defendants,” governs the treatment of and services provided for persons charged with committing a crime who have been found incompetent to proceed due to mental deficiency or illness. See ch. 916, Fla. Stat. (2004). When a mentally retarded individual engages in conduct that results in criminal charges, chapter 916 has direct application. See § 916.3012, Fla. Stat. (2004). Section 916.303 addresses the dismissal of charges against persons deemed incompetent to proceed due to mental retardation. See § 916.303, Fla. Stat. (2004). Section 916.303(1) directs that charges shall be dismissed if a person remains incompetent to proceed for a period of two years after the initial incompetency determination. See § 916.303(1), Fla. Stat. (2004) (“The charges against any defendant found to be incompetent to proceed due to retardation or autism shall be dismissed without prejudice to the state if the defendant remains incompetent to proceed within a reasonable time after such determination, not to exceed 2 years.... ”). Section 916.303(2)(a) states:

If the charges are dismissed and if the defendant is considered to lack sufficient capacity to give express and informed consent to a voluntary application for services and lacks the basic survival and self-care skills to provide for his or her well-being or is likely to physically injure himself or herself or others if allowed to remain at liberty, the department, the state attorney, or the defendant’s attorney may apply to the committing court to involuntarily admit the defendant to residential services pursuant to s. 393.11.

§ 916.303(2)(a), Fla. Stat. (2004). Section 916.303(2)(b) provides:

If the defendant is considered to need involuntary residential services under s. 393.11 and, further, there is a substantial likelihood that the defendant will injure another person or continues to present a danger of escape, and all available less restrictive alternatives ... have been judged to be inappropriate, then the person or entity filing the petition under s. 393.11, the state attorney, the defendant’s counsel, the petitioning commission, or the department may also petition the committing court to continue the defendant’s placement in a secure facility or program pursuant to this section.

See § 916.303(2)(b), Fla. Stat. (2004). The plain language of section 916.303(2)(b) seems to only apply to the continuation of secure placement. Chapter 393 does not even mention secure placement, and, therefore, it appears that section 916.303(2)(b) does not apply to a person originally committed under section 393.11. Therefore, it is reasonable to conclude that Everette’s continued placement in a secure facility after the criminal charges against him were dismissed has been effected and continued pursuant to chapter 916. Accordingly, his transportation would also be governed by the provisions of chapter 916, and, pursuant to section 916.107(10), the sheriff would be the party responsible for coordinating the transportation at issue under the particular circumstances of the instant dispute. See § 916.107(10), Fla. Stat. (2004).

It is somewhat difficult to divine exactly what the Legislature intended with regard to the continued secure placement of mentally retarded individuals once the criminal charges against the individual have been dismissed. This statutory scheme is far from a picture of clarity in my view. However, because such continued secure placement is clearly governed by section 916.303(2)(b), it is a reasonable conclusion and interpretation that chapter 916 applies to such individuals even after the criminal charges against them are dismissed. Contrary to the views of the majority here, chapter 916 contemplates that if a mentally retarded individual engages in conduct which produces criminal charges, that person becomes a defendant, and the label of defendant includes that person even after the criminal charges against him or her are dismissed. See § 916.303(2)(a)-(b), Fla. Stat. (2004) (referring to individual as a defendant in describing possible actions after criminal charges are dismissed).

A somewhat expanded concern in this case is not simply with regard to which party is ultimately responsible for the transportation costs of Everette, but, instead, that the rights of individuals governed by chapter 916 of the Florida Statutes may differ significantly from those provided under chapter 393. Com/pare § 393.13(4)(a)(2), Fla. Stat. (2004) (providing reasonable opportunity to place confidential phone calls), and § 393.13(4)(a)(3), Fla. Stat. (2004) (providing unrestricted right to visitation), with § 916.107(5)(c), Fla. Stat. (2004) (directing facilities to establish reasonable policies with regard to visitation and telephone communication); see also § 916.107(8)(a)-(b), Fla. Stat. (2004) (providing third parties with greater access to forensic client records than is permitted under chapter 393 for civilly committed persons). If the Legislature intends that persons facing circumstances similar to those encountered by Everette be afforded these expanded rights provided under chapter 393, the Legislature should amend the statutory scheme accordingly.

In conclusion, the treatment of a mentally retarded person who engages in conduct which produces criminal charges is governed by chapter 916 of the Florida Statutes, and chapter 916 continues to govern the treatment of such an individual after the criminal charges against them are dismissed where the individual’s placement in a secure facility is extended pursuant to section 916.303(2)(b) of the Florida Statutes (2004) and ordered by the trial court. If this conclusion fails to divine the legislative intent with regard to such individuals, I trust the Legislature will address and clarify this matter in the future.

CANTERO, J., concurs.

BELL, J.,

concurring in part and dissenting in part.

Like Chief Justice Lewis, I concur in the majority decision to quash the decision below and remand this case to the Third District due to the failure to join the sheriff as a necessary and indispensable party.

I also join in Chief Justice Lewis’s dissent to the extent that he concludes that

the treatment of a mentally retarded person who engages in conduct which produces criminal charges is governed by chapter 916 of the Florida Statutes, and chapter 916 continues to govern the treatment of such an individual after the criminal charges against him or her are dismissed where the individual’s placement in a secure facility is extended pursuant to section 916.303(2)(b) of the Florida Statutes (2004) and ordered by the trial court.

Concurring in part and dissenting in part op. at 266-67 (Lewis, C.J., concurring in part and dissenting in part).

      . In 1998, section 916.145 was amended to address only persons adjudicated incompetent due to mental illness and increased the time after which charges must be dismissed from two years to five years for such persons. See ch. 98-92, § 18, at 718, Laws of Fla.; § 916.145, Fla. Stat. (Supp.1998). In that same chapter law, section 916.303 was created and subsection (1) addressed the dismissal of charges against persons adjudicated incompetent due to mental retardation or autism and maintained the two-year deadline for the dismissal of charges. See ch. 98-92, § 27, at 724, Laws of Fla.; § 916.303(1), Fla. Stat. (Supp.1998).

      . In 2004, the Agency for Persons with Disabilities (“APD”) was created and became the real party in interest with respect to the instant matter, which involves the developmental services programs of DCF. Although this Court recognizes that APD is the real party in interest, for the sake of consistency between this decision and the decision of the Third District below, this opinion will continue to refer to DCF as the Slate agency involved in this dispute.

      . Sections 916.303(2)(a) and 916.303(2)(b) were amended and renumbered in 2006. See ch. 2006-195, § 21, at 2063, Laws of Fla.; § 916.303(2)-(3), Fla. Stat. (2006).


author: LEWIS, C.J. PARIENTE, J.,

text:
    Patrick Joseph KELSO, Petitioner, v. STATE of Florida, Respondent.
    No. SC05-597.
    Supreme Court of Florida.
    June 28, 2007.

      Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, Fifteenth Judicial Circuit, West Palm Beach, FL, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, FL, Celia A. Terenzio, Bureau Chief, and Jeanine M. Germanowicz, Assistant Attorneys General, West Palm Beach, FL, for Respondent.
   LEWIS, C.J.

We have for review the decision in Kelso v. State, 898 So.2d 1023 (Fla. 4th DCA 2005), in which the Fourth District certified conflict with the Fifth District’s decisions in Wilson v. State, 776 So.2d 347 (Fla. 5th DCA 2001), and Scarola v. State, 889 So.2d 108 (Fla. 5th DCA 2004), and the Second District’s decision in Thompson v. State, 888 So.2d 89 (Fla. 2d DCA 2004). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

FACTS AND PROCEDURAL HISTORY

The instant matter presents a purely legal question with regard to whether it is permissible to have convictions for multiple theft offenses arising from a single criminal transaction. The pertinent facts reveal that Kelso was charged and convicted of, among other offenses, third-degree grand theft of a firearm under section 812.014(2)(e)(5) of the Florida Statutes and second-degree grand theft under section 812.014(2)(b)(l) of the Florida Statutes. See § 812.014(2)(b)(l), (c)(5), Fla. Stat. (2003). It is undisputed that the offenses were committed during a single criminal transaction.

On appeal, Kelso contended that the two theft convictions under section 812.014 of the Florida Statutes were a violation of the constitutional prohibition against double jeopardy. The Fourth District, relying on the opinion of this Court in State v. Getz, 435 So.2d 789 (Fla.1983), held that the convictions did not violate double jeopardy principles. See Kelso, 898 So.2d at 1024-25. Quoting at length from Getz, the Fourth District reasoned that the Legislature intended for the theft of a firearm and the various other items of property specifically enumerated under section 812.014 to be considered “separate and distinct offenses, even where the thefts occur in a single criminal episode.” Kelso, 898 So.2d at 1024 (quoting Getz, 435 So.2d at 791). The court concluded that the value of a stolen firearm is irrelevant to the grading of the theft crime under section 812.014, and attributed this to “the special nature of firearms, as distinct from other property which could be stolen.” Kelso, 898 So.2d at 1024. The Fourth District certified its holding to be in direct conflict with the decisions of the district courts in Wilson, Scarola, and Thompson, and this review followed.

ANALYSIS

Modeled after the double jeopardy provision of the Fifth Amendment to the United States Constitution, article I, section 9 of the Florida Constitution states that “no person shall ... be twice put in jeopardy for the same offense.” Art. I, § 9, Fla. Const. This Court has explained that “where multiple punishments are imposed at a single trial, ‘the role of the constitutional guarantee against double jeopardy is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments arising from a single criminal act.’ ” Hayes v. State, 803 So.2d 695, 699 (Fla.2001) (quoting Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977)). This Court has stated that “[t]he prevailing standard for determining the constitutionality of multiple convictions for offenses arising from the same criminal transaction is whether the Legislature ‘intended to authorize separate punishments for the two crimes.’ ” Gordon v. State, 780 So.2d 17, 19 (Fla.2001) (quoting M.P. v. State, 682 So.2d 79, 81 (Fla.1996)). The power to define criminal offenses is relegated to the Legislature. See Hayes, 803 So.2d at 699.

Originally in Florida, the common law “single transaction rule,” which limited a conviction to only the most serious offense arising from a single criminal transaction, governed whether multiple convictions could result from the same criminal episode. See id. (citing Borges v. State, 415 So.2d 1265, 1266 (Fla.1982)). In 1976, however, the single transaction rule was legislatively replaced when section 775.021(4) of the Florida Statutes was enacted to read:

(4) Whoever, in the course of one criminal transaction or episode, commits an act or acts constituting a violation of two or more criminal statutes, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense, excluding lesser included offenses during said criminal episode....

Ch. 76-66, § 1, at 115, Laws of Fla.; § 775.021(4), Fla. Stat. (Supp.1976). Nevertheless, it still remained within the province of the Legislature to define criminal offenses. If the Legislature clearly defined two offenses such that within a single event a violation of both could occur, the amendment to section 775.021 dictated that a defendant could be convicted and sentenced for both offenses. If, however, the statutory language with respect to the definition of an offense was ambiguous, the rule of lenity, earlier codified in the original passage of section 775.021, dictated that the ambiguity “be construed most favorably to the accused.” § 775.021(1), Fla. Stat. (Supp.1974); see also Carawan v. State, 515 So.2d 161, 168 (Fla.1987) (“[W]e find that Florida’s lenity requirement constitutes a rule of construction coequal to the Blockburger test codified in section 775.021(4).”).

In 1983, this Court issued its opinion in Getz, which specifically addressed whether convictions for multiple theft offenses stemming from the same criminal episode were authorized by the Legislature, stating:

It is our view that as the theft statute is written, the legislature intended to make theft of a firearm under subsection (2)(b)3 and theft of property worth less than one hundred dollars under subsection (2)(c) separate and distinct offenses, even where the thefts occur in a single criminal episode. It is clear from a reading of section 812.014 that the legislature intended to treat the theft of different types of property as separate criminal offenses and to establish distinct punishments for the separate offenses. We note that if a firearm is stolen, its value is not an element of the offense and it is grand theft even if the firearm is worth less than one hundred dollars.

Getz, 435 So.2d at 791 (emphasis supplied). In Getz, we looked directly to the theft statute to determine whether convictions and sentences for multiple theft offenses arising from one criminal episode are authorized by the Legislature. See id. The Getz decision clearly established that the Legislature intended to distinguish between the theft of the various items enumerated under the theft statute for the purpose of allowing multiple convictions and sentences for each theft that occurs during the course of one criminal transaction. See id.

In 1983, the Florida Legislature again amended section 775.021(4), in an effort to expressly incorporate the test announced by the United States Supreme Court in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932), regarding whether offenses are separate under a double jeopardy analysis. The 1983 amendment added the following language:

For the purposes of this subsection, offenses are separate if each offense requires proof of an element that the other does not, without regard to the accusatory pleading or the proof adduced at trial.

Ch. 83-156, § 1, at 556, Laws of Fla.; § 775.021(4), Fla. Stat. (1983). The amendment also deleted language from subsection (4) regarding “two or more criminal statutes” and replaced it with a reference to “separate criminal offenses.” See ch. 83-156, § 1, at 556, Laws of Fla. In the title of chapter 83-156, the Legislature stated that the amendment was “clarifying the term ‘separate criminal offenses’ for the purpose of requiring a separate sentence for each offense.” Therefore, the replacement of “two or more criminal statutes” with “separate criminal offenses” demonstrates that the Legislature had determined that it was possible for multiple offenses to be defined within a single criminal statute. See id.

The 1983 amendment to 775.021(4) enhanced the reasoning in the Getz opinion that different degrees of theft can be “separate criminal offenses” even though defined in the same statute. See Getz, 435 So.2d at 790-91; ch. 83-155, § 1, at 556, Laws of Fla.; § 775.021(4), Fla. Stat. (1983). Similarly, the Blockburger test for separate offenses, which was codified in that amendment, confirmed the determination of this Court in Getz that “the legislature intended to treat the theft of different types of property as separate criminal offenses and to establish distinct punishments for the separate offenses.” Getz, 435 So.2d at 791. Under the Blockburger test, thefts of different types of property listed under section 812.014 of the Florida Statutes constitute “separate offenses” because each requires proof of a unique element, the specific property stolen, that the other does not. See § 812.014, Fla. Stat. (2003).

However, essential to an analysis in the instant matter and creating arguable confusion with regard to the Getz holding, the Florida Legislature again amended section 775.021(4) in 1988 to emphasize the preference for the Blockburger analysis over the rule of lenity, and listing exceptions to that general preference, as follows:

(b) The intent of the Legislature is to convict and sentence for each criminal offense committed in the course of one criminal episode or transaction and not to allow the principle of lenity as set forth in subsection (1) to determine legislative intent. Exceptions to this rule of construction are:
1. Offenses which require identical elements of proof.
2. Offenses which are degrees of the same offense as provided by statute.
3. Offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense. ,

Ch. 88-131, § 7, at 709-10, Laws of Fla.; § 775.021(4)(b), Fla. Stat. (Supp.1988); see also Gordon, 780 So.2d at 24 (“[T]he Legislature amended section 775.021, explicitly enunciating its intent that crimes be separately punished without regard to the rule of lenity. We have noted repeatedly that the Legislature effectively overruled Cara-wan”). Under the amended statute, the Legislature provided three exceptions to the general rule that offenses which are “separate” under the Blockburger analysis should be separately convicted and sentenced. In the instant matter, Kelso asserts that the second of these exceptions, for “[ojffenses which are degrees of the same offense as provided by statute,” precludes the two theft convictions because third-degree grand theft of a firearm under section 812.014(2)(e)(5) of the Florida Statutes and second-degree grand theft under section 812.014(2)(b)(l) of the Florida Statutes are degrees of the same offense of theft.

This Court has established that

the prevailing standard for determining the constitutionality of multiple convictions for offenses arising from the same criminal transaction is whether the Legislature “intended to authorize separate punishments for the two crimes.” Absent a clear statement of legislative intent to authorize separate punishments for two crimes, courts employ the Block-burger test, as codified in section 775.021, to determine whether separate offenses exist.

Gordon v. State, 780 So.2d 17, 19-20 (Fla.2001) (citations and footnote omitted) (quoting M.P. v. State, 682 So.2d 79, 81 (Fla.1996)). Therefore, if the theft statute itself is a “clear statement of legislative intent” with regard to whether convictions and sentences for multiple theft offenses can result from a single criminal transaction, then resort to the analysis outlined in section 775.021(4) of the Florida Statutes, as urged by defendant Kelso in the instant matter, is inappropriate.

We today affirm the reasoning of this Court in Getz that section 812.014 of the Florida Statutes constitutes a “clear statement of legislative intent” that convictions and sentences for multiple theft offenses arising from the same criminal episode are permitted. See Getz, 435 So.2d at 791. Section 812.014 is structured so that thefts of the various enumerated properties constitute separate offenses. The Legislature intended these thefts to be separate offenses and to constitute different crimes. The types of property specifically enumerated demonstrate that strong policy concerns motivated the Legislature to single out these theft offenses for separate punishment. See, e.g., § 812.014(2)(c)(5), Fla. Stat. (2003) (theft of a firearm); § 812.014(2)(c)(8), Fla. Stat. (2003) (theft of a fire extinguisher); § 812.014(2)(c)(ll), Fla. Stat. (2003) (theft of a stop sign). Specifically with regard to the offense of theft of a firearm under section 812.014(2)(c)(5) of the Florida Statutes, the Legislature clearly had a strong policy concern for singling out the theft of such dangerous instrumentalities that are widely used in the commission of violent crimes. As noted in Getz, “if a firearm is stolen, its value is not an element of the offense and it is grand theft even if the firearm is worth less than one hundred dollars.” Getz, 435 So.2d at 791. The same is true for all of the properties which are specifically enumerated in section 812.014. The values of those items of property are irrelevant to the grading of the corresponding theft offense. See § 812.014, Fla. Stat. (2003). Therefore, we conclude that in section 812.014, the Legislature has expressed its clear intent that thefts of the various enumerated properties are to be charged and punished as separate offenses, even when the offenses arise out of the same criminal episode. Therefore, it is unnecessary to look to the rules of construction set out in section 775.021(4), and the assertions of Kelso stemming from the exceptions found in that statutory section must fail.

Although we recognize that the 1988 amendment to section 775.021(4) creates concern because section 812.014 describes the theft of the various enumerated properties in terms of degree, and the exception to the preference for separate convictions and sentences listed in section 775.021(4)(b)(2) is for “offenses which are degrees of the same offense as provided by statute,” the assertions of Kelso in the instant matter ultimately fail because section 812.014 offers a clear statement of legislative intent, thereby negating the need to look to the rules of construction found in section 775.021 to determine whether convictions for multiple degrees of theft arising from the same criminal episode are permitted. Accordingly, the convictions and sentences of Kelso in the instant matter for third-degree grand theft of a firearm under section 812.014(2)(c)(5) of the Florida Statutes and second-degree grand theft under section 812.014(2)(b)(l) of the Florida Statutes do not violate double jeopardy principles. We note that this would not be the case if the convictions were for theft of a firearm and theft of the monetary value of that firearm. However, the convictions for theft of a firearm and theft of separate property arising from the same criminal episode are proper under current Florida law.

In construing section 812.014 of the Florida Statutes, we have attempted to ascertain the intent of the Legislature and give independent meaning and effect to the words and structure selected for this legislation. If the interpretation we have afforded this section today is misdirected, we are confident our Legislature will review the pertinent legislation and take any action it deems appropriate.

CONCLUSION

We hold that the opinion of this Court in Getz remains the controlling law following the 1988 amendment to section 775.021 because section 812.014 constitutes a clear expression of legislative intent that thefts of the various enumerated properties under the statute be punished separately, even when the offenses arise from the same criminal episode. Therefore, the multiple theft convictions in the instant matter are permitted under Florida law and do not violate double jeopardy principles. Accordingly, we approve the decision of the Fourth District below and disapprove the decisions of the district courts in Wilson, Scarola, and Thompson, to the extent that they conflict with this decision.

It is so ordered.

WELLS, PARIENTE, CANTERO, and BELL, JJ., concur.

PARIENTE, J., concurs with an opinion, in which, WELLS, J., concurs.

QUINCE, J., concurs in result only.

ANSTEAD, J., dissents.

PARIENTE, J.,

concurring.

I concur with the majority because the Court decided this issue in State v. Getz, 435 So.2d 789 (Fla.1983). I write to elaborate on the majority’s explanation as to why section 775.021(4)(b), Florida Statutes (2006), has no effect on the holding in Getz or this case.

In Getz, the Court held that theft of a firearm and theft of other property valued at a certain dollar threshold are

separate and distinct offenses, even where the thefts occur in a single criminal episode. It is clear from a reading of section 812.014 that the legislature intended to treat the theft of different types of property as separate criminal offenses and to establish distinct punishments for the separate offenses.

Id. at 791. The clarity of intent in the theft statute distinguishes Getz from Carawan v. State, 515 So.2d 161 (Fla.1987), in which the Court found “no evidence that the legislature intended multiple punishments” for attempted manslaughter and aggravated battery because both “address essentially the same evil.” Id. at 170.

In Carawan, the Court held that “absent a violation of constitutional right, specific, clear and precise statements of legislative intent control regarding intended penalties. Only where no clear intent exists does any other rule of construction come into play.” Id. at 165. The Court noted that specifically, the “same elements” test of Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), codified in section 775.021(4), and the “rule of lenity” contained in section 775.021(1), become relevant only when legislative intent is otherwise unclear. Carawan, 515 So.2d at 167-68. Finding no clear legislative intent to authorize multiple punishments, the Court in Carawan applied both the Blockburger test and, to greater effect, the rule of lenity, and concluded that multiple punishments were not authorized. Id. at 170-71.

Responding to Carawan, the Legislature narrowed the circumstances in which the rule of lenity could be used to determine legislative intent to authorize multiple convictions and sentences:

The intent of the Legislature is to convict and sentence for each criminal offense committed in the course of one criminal episode or transaction and not to allow the principle of lenity as set forth in subsection (1) to determine legislative intent. Exceptions to this rule of construction are:
1. Offenses which require identical elements of proof.
2. Offenses which are degrees of the same offense as provided by statute.
3. Offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense.

Ch. 88-131, § 7, at 709-10, Laws of Fla. (codified at § 775.021(4)(b)).

As the majority notes, this Court has repeatedly held that section 775.021(4)(b) overruled Carawan. It did so by limiting the use of the rule of lenity, which is available in the first place only where legislative intent is unclear, to the three scenarios specified in the provision. If legislative intent to authorize multiple punishments is clear, the rule of lenity does not apply regardless of whether the convictions meet the criteria of the three exceptions in subsection (4)(b).

Under Getz, legislative intent to authorize separate convictions for theft of a firearm and theft of other property valued at a specific statutory threshold is clear. Thus, even if we were to conclude that grand theft of a firearm and grand theft of property valued at $20,000 or more “are degrees of the same offense as provided by statute” within the meaning of section 775.021(4)(b)(2), we would have no occasion to resort to the rule of lenity in section 775.021(1) and no basis to conclude that multiple convictions constitute double jeopardy.

WELLS, J., concurs.

      . The Getz opinion analyzed the 1979 version of section 812.014 of the Florida Statutes. Under that version of the statute, theft of a firearm was listed under subsection (2)(b)(3) and was characterized as "grand theft of the second degree,” and subsection (2)(c) addressed petit theft. See § 812.014, Fla. Stat. (1979). Under the 2003 version of section 812.014, which was applied to Kelso in the instant matter, theft of a firearm is listed under subsection (2)(c)(5) and is characterized as “grand theft of the third degree,” and petit theft is addressed by subsection (3)(a). See § 812.014, Fla. Stat. (2003). Despite the renumbering and the reclassification of certain offenses in terms of degree, as illustrated above, section 812.014 has not been amended in any way that affects the analysis of the statute outlined by the Court in Getz.

      . Although the Getz opinion was released in July of 1983, subsequent to the effective date of the 1983 amendment to section 775.021(4), the opinion clearly cites to and relies on the 1979 version of the statutory subsection. See Getz, 435 So.2d at 790. Therefore, we analyze the 1983 amendment and its possible impact on the reasoning in Getz subsequent to our discussion of the Getz decision.